13ZA - Fit for purpose?

SECTION 13ZA - BACKGROUND In March 2007 an amendment to the Social Work (Scotland) Act 1968 was made under section 13ZA giving authority to Local Authorities to implement community care services to anyone who lacked capacity to give informed consent. It also gave authority to include moving the adult to residential accommodation without pursuing AWI. 13ZA has has not been universally used, with some local authorities only using formal AWI measures to authorise service provision . This has occurred when an adult has lacked capacity to determine welfare needs and where they have not been able to consent to service provision. Others have used 13ZA but there have been wide variations in how this is implemented in practice. Often used to facilitate hospital discharge but in fact authorises all community care provision to adults who lack capacity where there is no other legal authority in place.

SCOTTISH GOVERNMENT GUIDELINES Scottish Government guidance produced 2007 to ensure that rights of adults are protected. Assume that adult will already have a needs/risk assessment that addresses care options and capacity issues. Assumes agreement has been reached on care and support required prior to consideration of legal authority. Multi disciplinary review where views of adult and all relevant parties are taking into account. Assumes no existing proxy already in place or in process

CHESIRE WEST RULING CHESIRE WEST ruling followed a long standing legal argument over the term Deprivation of Liberty (DOL) and the circumstances in which safeguards must be put in place to protect vulnerable adults. Ruling stated that Deprivation of Liberty is defined as being under “continuous supervision and control and not free to leave. Successfully argued that the law required safeguards to be put in place to ensure anyone meeting this definition in protective care regimes would benefit from regular independent review to ensure that this continued to be the most appropriate system of care. P was a 39 year old man who had been diagnosed with cerebral palsy and Downs Syndrome and had been removed from his mother’s home and placed in the care of the local authority. This was challenged by his mother and solicitor.

MENTAL WELFARE COMMISSION If services are satisfied that a person cannot consent will be deprived of their liberty, it is necessary to consider what lawful authority justifies that detention. At the same time, until Parliament or the courts determine otherwise, current legislation remains in full effect, including the provisions of section 13za of the Social Work (Scotland) Act 1968 and the principle set out in S1(14) of the Adults with Incapacity (Scotland) Act 2000 that state: ‘There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention will benefit the adult and that that such benefit cannot be reasonably achieved without the intervention’ As amended by the 2007 ASP act.

EXTRACT FROM ERHCP CODE OF PRACTICE Chapter 4:12 of the ERHCP Code of Practice highlights that where the circumstances amount to deprivation of liberty then an order will be required to ensure that such deprivation is in accordance with a procedure prescribed in law in terms of Article 5, ECHR. When an adult (person aged 16 years and over) has significant care needs, his or her capacity to consent to a care plan should be integral to the assessment of their need(s). Care should be taken to ensure a detailed assessment of the adult’s incapacity and a medical opinion is available and up to date. Adults participation is integral to the process.

ASCERTAIN IF 13ZA APPROPRIATE The views of significant others should be taken into account as far as is reasonable and practicable. Where as far as is practicably possible and depending on the situation, relatives/carers or any other interested parties are in agreement to the proposed care plan. Attempts are made to establish the adult’s wishes and feelings. This may necessitate a referral to an appropriate advocacy service. In other words we can’t use it when there is DOL/ passive compliance? All agree? If all in place then ///on to meeting

13ZA (cont) If an adult is assessed as lacking capacity to consent to their care plan a 13za meeting is necessary to identify the best course of action. The principles of the Adults with Incapacity (Scotland) Act 2000 (AWI) must be taken into account throughout the process. The adult is compliant and has not expressed wishes contrary to the proposed care plan. This needs to be ascertained prior to 13ZA meeting. There has been written confirmation of the responsible Medical Officer’s views regarding the capacity of the adult in relation to the proposed action. (Initially this can be verbally and followed up by a letter) How is compliance or non-compliance defined/assessed? Generally, when there is no agreement, or DOL then full AWI case conference will be required to consider further options.

ERHCP 13ZA (MEETING) MHO overview of all 13za decisions. Either MHO qualified team manager or Duty MHO will attend meeting and provide MHO perspective on proposed care plan All parties concerned should be advised of the outcome of 13ZA meeting in writing. A record of what decisions were made and of how to proceed when not all parties are in agreement MHO will record on Care First the group decision, including reference to Deprivation of Liberty and financial safeguards. Social worker/care manager will complete a minute of the meeting and distribute to relevant parties. Agreed timescale for review of decision established. CSW not normally contacted but will make a recommendation in circumstances where

KEY THEMES IN 13ZA MEETINGS Principles of the Adults with Incapacity (2000) Act - Are they being applied? Is this underpinned by assessment of need, care and risk? Is there any deprivation of liberty for the individual (as defined by CW ruling)? What about financial arrangements? Are there sufficient safeguards and legal authority to manage property, bank account, benefits, pension, etc.

PROBLEMS? Reliance on comprehensive assessment Timescales for hospital discharge Who is relevant and do they all agree? Are they all invited? How is compliance defined? Are systems sufficiently robust? Do current systems ensure that decisions are reviewed? Family members may disagree.