The Scottish Government

Introduction

The consultation paper 'Improving with Experience' was issued on 24 August 2005. The consultation closed on 4 November 2005. The paper sought views on changes to the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act). The consultation paper can be viewed at http://www.scotland.gov.uk/Publications/2005/08/23175953/59538.

The 2000 Act introduced comprehensive measures to protect the interests of adults (persons of 16 and over) who are not able to make all or some decisions for themselves. It substantially reformed fragmented, outdated provisions.

The Executive commissioned a two year consultancy project in 2002 to monitor implementation of the Act, explore issues arising and to undertake research relating to the Act's operation. The project report, published in October 2004, highlighted that the 2000 Act has been widely welcomed and in general is working well and providing benefit to adults with incapacity and their carers, but that some changes are required to streamline the processes and to improve accessibility.

The Justice 2 Committee has also been monitoring the implementation of the Act and called for evidence from stakeholders on its operation. Hugh Henry's response to the report of the monitoring project was contained in a letter of 28 October 2004 to the committee. This set out an action plan responding to the issues raised in the project report and also acknowledged that changes to the Act itself might be required. Update letters were sent to the committee in June and December 2005 and Hugh Henry gave an oral update on progress on 13 December 2005.

The project report and the evidence given to the Justice 2 Committee formed the basis of the changes to the 2000 Act proposed in the consultation paper which are designed to simplify & streamline the current regime.

Copies of the consultation document were distributed to stakeholders - a distribution list is attached at Annex A. The responses (unless confidentiality was requested) are available in the Scottish Executive library and can be viewed on request by contacting the Scottish Executive library on 0131 244 4552. Copies of responses can be provided for a charge.

The Executive received 102 responses to the consultation. All key stakeholders (local authorities, voluntary organisations, carers organisations, medical professional bodies, legal profession) were well represented. All proposals received support from the vast majority of respondents. Some proposals received unanimous or near-unanimous support. Some concerns were raised in relation to certain aspects of the proposals and the need to ensure that changes include sufficient safeguards to protect the adult.

The aim of this report is to summarise the views of those who responded to the consultation.

Responses to the Consultation

This section shows respondents broken down by broad interest grouping.

Summary of Responses to Consultation Questions

This summary does not repeat the details of the proposals contained in the consultation paper. The relevant paragraphs from the paper are, however, noted at each question.

Around 80% of respondents agreed with the proposal to make changes to the countersignatory provisions in Part 3 of the Act. No-one disagreed that the countersignatory should not have to know the adult.

However, concerns were raised about safeguards for the adult arising from two elements of the proposal. It was clear that a number of respondents were of the view that the proposed period of six months that the countersignatory should have known the applicant was too short. In addition, whilst it was clear that there was support for abandoning 'classes' of countersignatories, concerns were raised about possible abuse if the countersignatory could be 'anyone'. Suggestions on how safeguards might be built in included that the countersignatory should have to give details of themselves; that the countersignatory should be able to contact the Office of the Public Guardian if s/he feels that the applicant is unsuitable; and that there should be additional intimation where, for instance, the primary carer and the nearest relative are the same person.

There was very strong support for the proposal to allow for the appointment of substitute and joint withdrawers provided appropriate checks were in place and countersignatory requirements applied. It was noted that this would allow more flexibility for carers and more accurately reflects the situation for many adults who will have a number of family members or informal carers assisting them. It was also noted that it would reduce the need for further applications to meet the adult's needs and would reflect provisions for guardians and attorneys.

This proposal was very widely welcomed with the proviso in one case that an audit trail / records should be kept of transactions for each of the account holders. One respondent made the point that there would need to be rules to cover the situation where the second joint account holder becomes incapable and has already nominated someone else to act on his/her behalf.

There was, however, one response which did not agree with the proposal and which raised interesting issues about the law relating to bank accounts and the question of ownership of funds in a joint account. The response also drew attention to the possibility of a conflict of interest arising where a single person was acting as withdrawer for both parties.

There was almost unanimous support for the proposals to increase flexibility in the management of accounts under Part 3 of the 2000 Act. Helpful comments were made about the terminology which should be used and the need for procedures and requirements to be capable of being understood and operated by all likely applicants without professional assistance. Some respondents made the point that more flexibility for the Public Guardian in relation to operating intromission with funds would be desirable both at the time of application and during the period of authority.

One respondent made the point that the Certificate of Authority should be absolutely clear in its terms as to precisely what has been authorised. It was also suggested that the rules for consolidation etc. must cater for the position where funds are held by different financial institutions. A further suggestion was that a financial limit (rather than limiting the number of accounts) could be set.

Again, there was almost unanimous support for this proposal. There were some concerns that there might be money laundering and identity issues. It was pointed out that safeguards must be built in to prevent mismanagement eg overdrawing the account resulting in charges being applied to the adult with incapacity.

There was very wide support for this proposal as addressing a significant current difficulty. It was pointed out that the information provided may lead the applicant and the Public Guardian to recognise that matters are more complex than initially thought and that an application for financial guardianship/intervention order may be more appropriate.

It was pointed out that many bank accounts are conducted by post or over the telephone or internet with institutions located in England and, in some cases, outwith the UK and it was queried whether an order from the Public Guardian would have effect outwith Scotland.

It was also noted that whilst it is necessary to have a clear picture of the adult's financial status prior to making the application, it is also necessary to keep a close check on the adult's financial position throughout the duration of the authority under Part 3, e.g. through receiving the adult's bank statements.

There was very wide agreement that the two stage process would provide adequate safeguard to protect the adult from potential abuse. It addressed one respondent's concern that family members might otherwise use the procedure to obtain information about a relative's accounts when the relative is not in fact incapable. It was suggested there should be a degree of vetting at stage 1.

There were, however, a few comments about the two stage process itself. There was a suggestion that the involvement of independent advocacy might be a useful safeguard for an individual's rights when an application is made. It was also suggested that additional safeguards might be required where an organisation applies under Part 3.

There were concerns that there was no objective check (an applicant would not approach a countersignatory who would not support him) and about how other people who are important to the applicant are identified to ensure that anyone who has an objection to the application has the opportunity to make that known.

It was suggested that the local authority should be notified or that a Mental Health Officer (MHO) appointed by a local authority under section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003 should be consulted as a safeguard as MHOs have the legal authority to make further inquiries under that Act.

There was concern that the projected "4 weeks" extension to the process should not be exceeded and that there should be a requirement for the Public Guardian to monitor situations where an application fails at stage 1.

There was approximately 85% support for the principle that organisations should be able to intromit with funds but there was no consensus on which organisations should be permitted to do this. It is difficult to capture an overview as some comments ran counter to others. There were concerns about conflicts of interest and how these could be managed and minimised. It was suggested that no organisation which would be paying itself for services should be able to apply or, if paying itself for services, there must be arm's length arrangements in place. It was further suggested that no private/profit-making care providers or organisations representing the interests of the adult should be included. It was noted that currently assistance with financial management can be an integral part of any care package. Key features of organisations which might intromit with funds included accountability, transparency, appropriate monitoring and auditing and robust processes and procedures. It was suggested that these organisations should be authorised by the Public Guardian.

Respondents offered a very wide range of suggestions for new names for the scheme and for the person or organisation authorised to act under it, although the most frequently quoted were 'access to funds' for the scheme and 'withdrawer' for the person .

75% of respondents agreed that this was an important distinction. It was thought that the distinction is important to quantify the extent of the problem of supply and to allow for cases where funds are insufficient to make the appointment of a guardian on a commercial basis viable. However, others took the view that no distinction should be drawn, making the point that the process of identifying a suitable guardian will be the same for both and that the ultimate purpose is to ensure the adult is receiving the necessary measures of protection.

The responses to this question threw up a divergence of views. 50% of respondents considered that there was a gap. However, a significant percentage did not think there was a supply problem.

One local authority wrote that they have a list of willing professionals where there is enough of an estate and similar comments were made by other respondents. Another respondent made the point that for them appointments have so far been limited to a relatively small pool of professionals, and this point was echoed in some other responses. It was agreed that widening the intromission with funds scheme would assist considerably by reducing the need for guardianship in particular cases.

It was suggested that the gap potentially arises because of perceived limitations on fees which can be charged. One respondent thought that solicitors might be reluctant to take on this role as it is complex and is a specialised area, whilst another pointed out that some solicitors engaged in this type of work are generally willing to take on a small number of cases at less than a commercial rate. It was suggested that lay guardianship should be encouraged and supported.

It is clear from the responses that it would be difficult to identify the scale of the gap. Only 50% of respondents addressed this question and of that 50%, less than 30% could offer information. However, from those responses, it would appear that the gap may be small.

Almost 70% of those who responded agreed that it would be helpful to see any gap in terms of the market for wider community legal services. However, one respondent's point was that the question relates to the availability of persons who may be unwilling to be appointed into a representative, fiduciary or official capacity which can be distinguished from the focus of community legal services, which is concerned with addressing the need for legal help by individuals with justiciable problems.

It was suggested that more community legal advice centres (not-for-profit) would be able to help. It was also suggested that specialist voluntary organisations have a range of knowledge and experience, and that some of these may be willing and suitable to establish a Guardian of Last Resort service. As before it was pointed out that if intromission with funds under Part 3 of the Act is more accessible and therefore more frequently used, the need for guardianship should be reduced.

Another respondent suggested that the deficit under the 2000 Act is not in relation to legal services, but in relation to suitable voluntary input and that under a similar system in Germany some 80% of applications are presented with voluntary assistance, without the need for professional legal help. It was suggested that any "last resort" guardianship service should be under the control of the Office of the Public Guardian

It was further suggested that a national approach in the context of other assistance with legal matters would be helpful, although one respondent was of the view that the matter of legal advice is a separate issue and that the main problem is remuneration for the service provided by the guardian.

Of those who responded, over 76% were attracted to a central referral system. It was suggested that any list could be broadened out to include accountants, voluntary organisations and charities as well as solicitors.

It was suggested that a central referral list be kept by the Public Guardian and that the Law Society of Scotland's list of solicitors could be adapted to identify which solicitors are willing to take on this work and that already vetted professionals would avoid excessive delay. A possible role for the voluntary and not-for-profit sectors was noted.

One respondent took the view that there should be a directory of local people so that the needs of people in remote areas can be met relatively easily and more personally but others made the point that new technology makes it easier for contact even in rural areas, eg tele-conferencing, e-mail and fax and so suitable providers might be willing to cover a larger geographical area or have different branches from which nominees could be available.

It was also suggested that any guardian of last resort would need to be an existing or new statutory body.

Around half of respondents answered this question. Suggested key features included: low value of adult's estate with insufficient funds for financial management; crisis cases with sudden loss of capacity where the family is estranged; no family or family unwilling to act; cases where severe mental illness is exacerbated by alcohol/drug misuse; cases where there is a risk of exploitation; other complex cases which entail a high level of contact with adult and relevant others; cases where debt is an issue; and cases where there is no money but the potential for a large sum of money to be paid to the adult e.g. compensation as a result of criminal injuries or car accident.

Less than 40% of respondents answered this question. From the responses received the general tenor was that the demand would be small. It was suggested that if the service was available, the demand might increase. A point which was regularly made was that if access to intromission with funds under Part 3 of the Act was improved, the number of last resort cases would be reduced.

Again fewer than 40% of respondents answered this question. Key skills suggested included intellectual integrity; common sense; tenacity; good communication skills; sound relationship skills; knowledge of social issues in cases of complex family breakdown and financial exploitation; knowledge of pensions and benefits; knowledge of community care charges; experience of working with people with "mental disorder"; ability to work with adults with learning disabilities and complex needs; knowledge of financial matters, e.g. investment, interest rates, different types of account, etc.; financial/accounting/office skills and experience; advocacy skills; debt management skills; knowledge of the principles of the Act, of vulnerable adults procedures and consumer law; ability and interest in working with statutory services; and a knowledge of court procedures.

Required organisational arrangements suggestions included disclosure clearance; indemnity insurance; "transparent" management systems; and appropriate financial recording and financial management. It was suggested that there should be no vested interest in the funds to be managed, and complete independence from purchases or provision of care services.

It was suggested that the Office of the Public Guardian has the expertise and the existing powers to monitor such situations but that it might be necessary to set up a separate section to administer any scheme to prevent a conflict of interest.

There was a high level of support for this proposal. It was pointed out that the inclusion of this check would encourage discussion with the granter about the potential use of the powers and the implications of granting them and would, in addition, further establish a granter's understanding of the process. A number of those responding would, however, like there to be a requirement for certification of incapacity before an attorney can act as a protection for the granter and also the attorney. It was pointed out that there was no check on the process by which an attorney arrives at a decision to use powers.

Some comments reflected concerns about cases where at the time of signing the granter may not have been competent to grant the power of attorney. It was also suggested that there can be issues around a granter's regaining capacity to act. There was also a concern that if the power of attorney was signed a number of years before it was operational, the person's circumstances and wishes may have changed.

Again, there was a high level of support for this proposal. Those who agreed suggested that the requirement for two certificates seemed unnecessarily bureaucratic and that this proposal would streamline the process. One respondent made the point that the single certificate would need to be unambiguous in relating to both types of powers. A respondent who disagreed suggested that two certificates offered a granter greater protection.

There were a number of comments on powers of attorney more generally. One respondent suggested that, because of the use of the word 'persons' in the provision, it is currently necessary, in cases where the person providing the certificate does not have sufficient knowledge of the granter, to consult more than one other that person who does have knowledge of the granter to support the statement that the granter understood the nature and extent of the power of attorney.

There was overwhelming support for the proposal that sheriffs should have the discretion to dispense with caution. It was considered generally appropriate that discretion should be left with the sheriff and the reasons for the request specified on a case by case basis although one respondent thought that leaving it to the discretion of individual sheriffs could lead to inequitable decision making across Scotland. One respondent suggested that consideration should be given as to whether there should be a presumption against caution, with the sheriff's discretion being a discretion to order caution where that seems necessary, rather than a discretion to dispense with it.

Again over 90% of respondents supported the proposal that the Public Guardian should be able to vary caution. One respondent pointed out that this would provide the necessary safeguards for the management of estates, while allowing guardians a simplified way to reduce costs for the adult. Another commented that if the adult's money has decreased, e.g. due to care costs, it would seem appropriate that caution is proportionally reduced. It was suggested that there should be express provision to vary caution to nil.

However, one respondent took the view that it would be better if caution remained at the level set by the sheriff because the value of the estate may be reduced through fraud or mismanagement and that in such cases it is important that caution covers the initial balance so that a claim can be made.

Around 80% of respondents supported this proposal. It was pointed out that greater flexibility in relation to timescales would avoid the risk of incurring further expense if proceedings have not been raised within the prescribed time limit. It was suggested that it might be simpler to extend all to 60 days. One respondent commented that an extra 30 days could mean that mental health officers (MHOs) would almost always have copies of the medical reports when they start to prepare their reports which would benefit the decision-making process as a whole, and therefore also the adult, and would outweigh any theoretical disadvantages in the oldest medical report being up to 30 days older. However, on the other hand, some respondents suggested that the process is currently long enough. Others felt that while an extension was desirable, it would not be appropriate for 60 days to become the norm, which could happen if it was set as an upper limit.

It was further suggested that whatever limit is set, it should in remain flexible on the basis that there will always be cases where it will be exceeded and where it would be inappropriate to ask everyone to start again, penalising the adult's estate (or the public purse) in consequence.

One respondent also asked that consideration be given to an extension of the 21 days allowed for an MHO or Chief Social Work Officer to complete a report on the suitability of the Guardian and the appropriateness of the powers.

Around 90% of those responding to this question agreed with the proposal. It was pointed out that the proposed amendments would more efficiently meet the needs of the adult and simplify a potentially complex and disruptive process. However, it was clear that some respondents were unsure why there might be a need for an application in respect of an adult who resides outwith Scotland and this was reflected in the responses. The main circumstances in which the provision would apply would be where an adult who lives elsewhere has property in Scotland which needs to be sold.

One respondent pointed out that the Mental Welfare Commission should be able to advise on whether a medical practitioner outwith Scotland has the appropriate qualification to make an examination.

Comments were made about the role of the MHO in these types of cases and about whether it would be possible to include provision for a report by an MHO equivalent.

There was over 90% support for this proposal although several respondents would like to see an upper limit for interim guardianship. The increased flexibility was perceived as desirable, in particular, in cases where there were complex financial issues to resolve. There was some concern that there might be a danger of the practice becoming routinised and it was suggested that there should perhaps be a mandatory requirement for supervision of interim orders beyond three months to provide some safeguards.

There was strong support for the proposal in 16a. One respondent suggested that having to seek recall by the Mental Welfare Commission could possibly create a delay and that a change would allow local authorities to begin recall more quickly in keeping with the principle of least restriction. However, another did not think that recall by the Mental Welfare Commission would involve delay. A number of respondents regarded intimation to the Mental Welfare Commission as an important safeguard if local authorities were recalling their own guardianships.

However, concerns were also raised. One respondent suggested that in the past there have been problems of local authorities discharging guardianships too early, possibly for financial or organisational reasons, rather than in the interests of the adult concerned, leaving the adult unprotected. It was suggested that the decision should only be taken following a multi-disciplinary case discussion and where evidence supports this and that the Mental Welfare Commission should be informed and given copies of minutes, recommendations and decisions.

One respondent who disagreed with the proposal suggested that where a court has determined that guardianship is necessary, there should always be an independent element in any decision that it is no longer necessary.

On a more general note, one respondent who had concerns about indefinite guardianships strongly urged that consideration be given to having an optional simplified renewal procedure.

In terms of specific difficulties with recall, there appeared to be limited experience of the process. Some respondents were unaware of difficulties. Others referred to the length of the process which was viewed as restricting the adult unnecessarily. One commented that the process was too bureaucratic and cumbersome. It was suggested that recall documents could be simpler in cases where all parties are in agreement.

Over 94% of respondents agreed with this proposal. One commented that there was a compelling case for broadening the scope of this provision, another that the persons must be identified and vouched for. Others made the point that the views of the adult should be heard and taken into account. One respondent, however, raised the concern that there could be a flood of family applications to be the nearest relative as a result of the proposal.

84% agreed with this proposal, some commenting that it was acceptable if the proposal at 17a were to go ahead. However, some respondents were not convinced that this proposal was necessary, while others were not clear how this would work. It was suggested that if no interested person is complaining, it would not be appropriate for a sheriff to raise his/her own action. It was suggested that there should be notification to and a right of objection by the adult and other parties and that the adult should be represented and supported. It was further suggested that the provision of independent advocacy to the adult with incapacity should be considered mandatory.

The majority of respondents did not want certification extended beyond doctors to other professionals. Less than 34% of respondents answered 18b. Where respondents did want extension, the most frequently cited additional professional was a clinical psychologist. There appears to have been some confusion between this proposal and the now implemented extension of certification in relation to medical treatment under Part 5 of the 2000 Act. There was a comment that the wide ranging powers that could be granted under, for example, part 6 of the Act need a full and detailed assessment of capacity by experienced medical practitioners.

Less than 30% of respondents answered question 18c. A number of responses flagged up the need for validated / approved training and competence assessment for determining capacity. It was suggested that sound supervision structures would also need to be in place. It was pointed out that solicitors already have indemnity cover and relevant experience but that other organisations might have to consider liability issues, although professionals involved as part of a nursing/social work union typically have indemnity cover included as part of membership fees.

Annex A

List of consultees

Action of Churches together in Scotland

Advocacy Safeguard Agency

Age Concern Scotland

Alzheimer Scotland

Association of Directors of Social Work

AWI lead officers, Local Authorities

Black and Ethnic Minority Elders Group, Age Concern Scotland

British Association of Social Workers

British Geriatrics Society (Scottish Branch)

British Medical Association Scotland

British Association of Psychologists - Scottish Branch

Building Societies Association

Capability Scotland

Care Commission Scotland

Carers Scotland

Centre for Independent Living in Glasgow

Chest, Heart, Stroke, Scotland

Chief Executives, Local Authorities

Chief Executives, NHS Boards

Chief Executives, NHS Boards Operating Divisions

Church of Scotland Board of Responsibility

Citizen's Advice Scotland

Community Care Providers Scotland

Coalition of Carers Scotland

Commission for Racial Equality

Community and District Nursing Association

Community Care Providers Scotland

CoSLA

Crossroads Scotland

Dementia Services Development Centre

Department for Work and Pensions Depression Alliance

Directors of Social Work, Local Authorities

Disability Centre for Independent Living, Paisley

Disability Rights Commission Office for Scotland

Disclosure Scotland

Downs Syndrome Scotland

Edinburgh Elderly Chinese Support

ELCAP

ENABLE

Equal Opportunities Commission

Equality and Human Rights Reference Group

Equality Network

FAIR (Family Advice and Information Resource)

Gavald (Edinburgh)

Gay Men's Health

General Medical Council

Headway Scotland

Help the Aged

HIV Scotland

Inclusion Scotland

Law Centres

Law Society of Scotland

Legal Services Agency

Manic Depression Fellowship Scotland

MECOPP

Medical & Dental Defence Union of Scotland

Mental Health Foundation Scotland

Mental Welfare Commission, Scotland

Neurological Alliance Scotland

National Autistic Society - Scotland

NSF Scotland

PAMIS

Penumbra

People First

Post Office Ltd.

Princess Royal Trust for Carers

Quarriers

Richmond Fellowship Scotland

Royal College of General Practitioners, Scotland

Royal College of Nursing Scotland

Royal College of Physicians, Edinburgh

Royal College of Physicians and

Surgeons, Glasgow

Royal College of Psychiatrists (Scottish Division)

Royal College of Psychiatrists - Scottish Division - Old Age Section

SACRO

Scottish Association for Mental Health

Scottish Association of Care Home Owners

SACRO

Scottish Carers Alliance

Scottish Churches Housing Association

Scottish Clearning Banks Association

Scottish Community Care Fora

Scottish Consortium for Learning Disability

Scottish Consumer Council

SCVO

Scottish Dementia Working Group

Scottish Development Centre for Mental Health

Scottish Disabilities Equalities Forum

Scottish Federation of Housing Associations

Scottish General Practitioners Committee

Scottish Head Injuries Forum

Scottish Huntington's Association

Scottish Human Rights Centre

Scottish Independent Advocacy Alliance

Scottish Inter Faith Council

Scottish Legal Agents Society

Scottish Legal Aid Board

Scottish Law Commission

Scottish MEPs

Scottish Older People's Advisory Group

Scottish Partnership for Palliative Care

Scottish Pensioners Association

Scottish Pensioners Forum

Scottish Pre-retirement Council

Scottish Prison Service

Scottish Society for Autism

SENSE Scotland

Shared Care Scotland

Sheriff Principals

Sheriffs' Association

State Hospital for Scotland

STUC

Social Work Legal Officers, Local Authorities

The Action Group

Trust a Carers Connection

Turning Point Scotland

Unison

Values into Action

Victim Support (Scotland)

VOCAL

Vulnerable Adults Alliance Scotland

Waverly Care Trust

WRVS