NHS Greater Glasgow & Clyde Adults with Incapacity (Scotland) Act 2000 Report of the Supervisory Body to Board Clinical Governance Committee on Operation of Part 4 For the year 2011 Anne Hawkins Director Glasgow City CHP William Street Clinic 120 William Street Glasgow G3 8UR October 2012 Page 1 of 23 Contents Page Page No 1. Introduction 3 AWIA Context and Overview of Act 3 Board’s role under Part 4 6 DWP Appointeeships 6 2. Role of Supervisory Body 6 3. Policy & Operational Procedure 7 4. Management of Funds 7 5. Training Activity 8 6. Inspection and Monitoring 9 7. Policy Development 10 Page 2 of 23 1. Introduction (a) Adults with Incapacity and Overview of the Act 1.1 The Adults with Incapacity (Scotland) Act 2000 provides a framework for decisions to be made on behalf of adults (those aged 16 years or over) who lack the ability (capacity) to make decisions about their own finances or welfare, including decisions about medical treatment. It provides a regulated structure which allows others to make decisions on individual’s behalf subject to safeguards and in specific well-defined situations. 1.2 The basis for “incapacity” as defined in the Act is either mental illness or inability to communicate (normally due to a physical condition). The main groups to benefit include people with dementia, people with a learning disability, people with an acquired brain injury or severe and chronic mental illness, and people with a severe sensory impairment. 1.3 The Act aims to ensure that solutions focus on the needs of the individual: for example, a person with dementia may be able to decide what sort of support he/she would prefer to help with day to day living, but be unable to manage his/her money. In such a case a financial intervention may be all that is needed. In other circumstances a combination of welfare and financial measures may be necessary. 1.4 The Act is divided into a number of distinct Parts each dealing with certain circumstances. Part 1 sets out the general principles of the Act. Part 2 covers both Welfare and Financial Power of Attorney and allows an individual who currently has the capacity to make decisions to plan for the future and specify how and who should act for them in the future should they become incapable to act for themselves. They do this by executing a formal legal document and registering it with the Public Guardian who supervises this Part of the Act. Part 3 is about making arrangements to Access Funds of an Adult where they are no longer able to manage their affairs. This Section is also overseen by the Public Guardian and is limited to withdrawal of monies from established bank accounts etc to meet on-going day to day living expenses. An Access to Funds Order is sought by a relative, carer or approved organisation. Part 4 allows a hospital or care home manager to manage the finances of residents who do not have capacity to do so themselves. This report is about the Health Board’s role in this respect. More detail is given below. Part 5 allows treatment to be given to safeguard or promote the physical or mental health of an adult who is incapable of giving or refusing consent to the treatment in question. Page 3 of 23 Part 6 Covers Intervention and Guardianship Orders where a carer, relative or local authority can apply to the Sheriff Court for either:- An Intervention Order – where a one off decision is required on behalf of the adult who lacks capacity to make it; or A Guardianship Order which is more appropriate where there is an ongoing need to manage complex on–going issues. Both these types of Orders can cover Financial and Welfare matters. 1.5 The Act is founded on a number of underlying principles. As such the Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so. Anyone authorised to make decisions made on behalf of someone with impaired capacity must apply the following principles: Principle 1 – benefit • Any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it. Principle 2 – least restrictive option • Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person’s freedom as little as possible. Principle 3 – take account of the wishes of the person • In deciding if an action or decision is to be made, and what that should be, account must be taken of the present and past wishes and feelings of the person, as far as this may be ascertained. Some adults will be able to express their wishes and feelings clearly, even although they would not be capable of taking the action or decision which is being considering. For example, he/she may continue to have opinions about a particular item of household expenditure without being able to carry out the transaction personally. Principle 4 – consultation with relevant others • Take account of the views of others with an interest in the person’s welfare. The Act lists those who should be consulted whenever practicable and reasonable. It includes the person’s primary carer, nearest relative, named person, attorney or guardian (if there is one). Principle 5 – encourage the person to use existing skills and develop new skills Page 4 of 23 (b) Board’s Role under Part 4 1.6 As indicated above, Part 4 allows a hospital or care home manager to manage the finances of residents who do not have capacity to do so themselves subject to compliance with relevant procedures and compliance with the Act and a Code of Practice issued by the Scottish Government in July 20031. For Care Homes and NHS residential premises, the “Supervisory Body” is responsible for overseeing the operation of Part 4 of the Act2. The Supervisory Body in relation to Care Homes is the Care Commission and for NHS premises it is the relevant Health Board. Within NHS Greater Glasgow & Clyde the responsibilities of the Supervisory Body have been delegated to a Group lead by the Director of Glasgow City CHP. Also in membership are the Lead Associate Medical Director and the Nurse Director of Mental Health Services together with the Head of Nursing for the RAD and Clinical Services Manager Emergency Care. The Group is supported by the Legislation Team and the Glasgow City CHP Head of Administration. 1.7 Part 4 is seen as a default power to intervene where the other provisions within the Act have not been invoked. Within the NHS setting all residential establishments are issued with a Note of Authority to manage residents’ financial affairs. Such Notes are issued once the Supervisory Body is satisfied that the necessary procedures are in place. Notices last for a maximum of one year and then require to be renewed. Within NHS Greater Glasgow & Clyde three separate Registers of Authorised Establishments are maintained covering:- • Adult RAD and Acute Physical In-patient Services • Older People’s Services within CH(C)Ps • Adult Mental Health, Learning Disabilities and Addictions. A copy of the Registers as at December 2011 is attached as Appendix A to this report. 1.8 As well as authorising the establishments, named individuals (and deputies) are appointed as authorised managers to manage patients' funds under the Act. Under the Act they require to be issued with a Note of Authority to act. 1.9 Authorised managers then need to be granted a Certificate of Authority to manage the affairs of each named resident who is covered by Part 4 of the Act. 1 Code of Practice for Supervisory Bodies under Part 4 of the Act ISBN 0 7559 1041 9 2 The State Hospital Board performs this role in relation to the State Hospital Page 5 of 23 (c) Department of Work and Pensions Appointeeships 1.10 Alongside the provisions relating to Part 4, staff of the Board are often appointed to administer State Pension Benefits received by residents. These arrangements are separate from the Part 4 provisions but as a general rule the same principles about accounting for monies entrusted to the Board’s Officers apply in these cases and the funding managed is monitored by the Supervisory Body. 2. Role of the Supervisory Body 2.1 The Supervisory Body is responsible for monitoring and reviewing the manner in which managers of authorised NHS establishments are conducting the management of residents’ funds under Part 4 of the Act. For this purpose the Supervisory Body:- • approves and periodically revises Policy and Operational Procedures; • reviews and approves the inclusion of Authorised Establishments on the Register, issues Notes of Authority to Managers and Deputies and approves issue of Certificates of Authority in relation to individual patients; • monitors activity and local procedures to ensure compliance with NHS Greater Glasgow & Clyde Financial Operating Procedures; • commissions regular inspection visits to Authorised Establishments and Managers; • oversees a continual programme of training in the operation of the Act for staff; and • has responsibility for investigating any complaints received or commissioning enquiries as it thinks fit. 2.2 Where it is appropriate, the Supervisory Body can approve that procedural requirements about intimation to patients of the intention to apply for authorisation to manage funds is not made. It also has a role where an Authorised Manager proposes to dispose of any moveable property of a resident in excess of £100 or where it is proposed to hold residents funds under Part 4 in excess of £10,000.