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Support and Protection for People Receiving Care Who Cannot Take a Decision Because of Mental Incapacity in Care at Home (Scotland) Policy

Aims

This policy sets out the values, principles and procedures underpinning {{org_field_name}}’s approach to the decision taking involved with prospective or current users of the service who are suspected or have been assessed as lacking the mental capacity to take specific decisions for their care and support and other aspects of their life, including where restrictions are being proposed to protect them from harm.

Background

In adopting its approach, {{org_field_name}} understands that it must comply with the requirements of the Adults with Incapacity (Scotland) Act 2000 and its accompanying codes of practice and guidance.

It understands that the Act provides options for when a person:

1. is incapable of taking decisions about their daily living arrangements and their care and support
2. in relation to needs for legally authorised restrictions to be applied to protect a person from harm, but which could be liberty depriving.

The options include the appointments of people to support the person when without capacity to take specific decisions and in some circumstances to take such decisions on their behalf. The decision taking power can be about a specific decision and limited to that decision or about specific decisions over time. The Act enables the following interventions to be made:

• Scottish Government
a) Communication and Assessing Capacity. A Guide for Social Work and Health Care Staff
b) Guardianship and Intervention Orders. A Guide for Carers.
• Mental Welfare Commission for Scotland
a) Deprivation of Liberty. Advice Notes
b) Supported Decision Making. Good Practice Guide
c) Rights, Risk and Limits to Freedom. Good Practice Guide
d) Working with the Adults with Incapacity Act — For People Working in Adult Care Settings. Good Practice Guide.

In setting out its policy {{org_field_name}} also shows how it will achieve the national health and care standards, My Support, My Life (2017).

1.0. I experience high quality care that is right for me.

Dignity and Respect

• 1.2: My human rights are protected and promoted, and I experience no discrimination

2.0. I am fully involved in all decisions about my care and support.

Dignity and Respect

• 2.3: I am supported to understand and uphold my rights.
• 2.4: I am supported to use independent advocacy if I want or need this.
• 2.5: If I need help managing my money and personal affairs, I am able to have as much control as possible and my interests are safeguarded.
• 2.7: My rights are protected by ensuring that any surveillance or monitoring device that I or the organisation use is necessary and proportionate, and I am involved in deciding how it is used.

4.0. I have confidence in the organisation providing my care and support.

Dignity and Respect

• 4.1: My human rights are central to the organisations that support and care for me.

Compassion

4.4: I receive an apology if things go wrong with my care and support or my human rights are not respected, and the organisation takes responsibility for its actions.

Definition of Capacity

{{org_field_name}}’s policy is based on its understanding of mental incapacity as defined in the Adults with Incapacity (Scotland) Act 2000.

On the one hand, a person with capacity can understand information relevant to a decision or action and can appreciate the possible results of not taking that action or decision.

On the other hand, a person (aged 16 years or over according to the Act) who cannot take such decisions because their ability has been impaired by a mental disorder such as dementia, learning disability, acquired brain injury, severe mental illness or personality disorder might lack capacity and need the support of others in their decision taking, or in some circumstances have others take decisions on their behalf.

It is also understood that the Act covers people who cannot communicate because of their physical condition such as a severe stroke or sensory impairment, and who need corresponding help in their decision taking.

Principles

{{org_field_name}} recognises that in all such decision taking the following principles enshrined in the Adults with Incapacity (Scotland) Act 2000 must be followed.

1. Individuals must be assumed to have capacity (to take their own decisions) unless it is established that they lack capacity.
2. Any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it.
3. 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.
4. Account must be taken of the present and past wishes and feelings of the person, as far as this can be ascertained.
5. Account must be taken of the views of others with an interest in the person’s welfare.
6. The person should be encouraged to use existing skills and develop new skills.

Implementation

Incapacity Assessments

{{org_field_name}} recognises that it might be involved in incapacity assessments under the following circumstances, where decisions are needed about a person’s wellbeing, finances and financial arrangements and their giving consent to their care and support.

1. {{org_field_name}} will always check any referral for its service if the applicant is subject to any interventions in place under the Adults with Incapacity Act 2000 and record the details, ie relating to:

• powers of attorney (financial and welfare)
• access to and management of finances
• consent to treatment
• guardianship and intervention orders, particularly any that include the need for the person to be subject to restrictions or limitations on their freedoms.

2. {{org_field_name}} will also check that at the time of the referral the application for the service is being made with the person’s informed consent. If {{org_field_name}} suspects that the person lacks the capacity to give their consent, it will ask for, recommend or prompt a capacity assessment. {{org_field_name}} understands then that:

• this will be multidisciplinary with the appropriate involvement of the service
• it will base its acceptance for providing the service on the assessment outcome.

3. {{org_field_name}} will follow a similar procedure if at any time during the course of the care and support that is being provided it considers the person is developing or suffering from a mental disorder that is impairing their decision taking capacity, it will ask for, recommend or prompt a capacity assessment and base any decisions to be taken on the assessment outcome.

4. {{org_field_name}} recognises that it is essential to confirm or seek legal authorisation in the event of there being a need to impose any restrictions or limitations on a person’s freedoms because of their incapacity.

In respect of any of the above, {{org_field_name}} will always work in partnership with the individual and their welfare guardians and legal representatives to ensure that all actions it takes are in line with any requirements set out by a court in respect of any guardianship or intervention order.

Furthermore it will take the necessary actions if it thinks that any legal requirements or conditions are not being met or a person is being subject to unnecessary restrictions on their freedoms and there is a potential breach of their human rights.

In each set of circumstances {{org_field_name}} will ensure the process follows the principles of the Adults with Incapacity Act 2000 by identifying and recording:

• that the present and past wishes and feelings of the individual have been fully taken into account in the assessment, and, as far as can be known, how they will view and feel about the decision once made
• that the views of the person’s nearest relative(s) have been also fully considered
• how the decision will benefit the person
• how the person can use their existing skills and possibly develop new skills in the implementation of the decision
• that the decision represents the least restrictive option and how that will be implemented through the personal plan.

{{org_field_name}} will continue to ensure that the outcomes are fully recorded, regularly reviewed and plans updated and audited as required in the course of their service delivery.

Management Responsibilities

Care service managers must ensure that full records are kept on all people who are subject to interventions under the Adults with Incapacity Act 2000. The records to be kept and procedures to be followed include:

• records of the assessments that have been made, to include dates of referral, assessment, outcomes and actions to be taken
• all relevant information and details included in personal plans with actions to be taken by staff
• a complete record of all people receiving care who are being dealt with by the service under the Adults with Incapacity Act 2000 with information on how people exercising their statutory powers are being applied in the care and support decision taking that is involved
• {{org_field_name}} being on the alert for possible conflicts of interest or evidence of misuse of them between the people receiving care and those exercising their statutory powers, and raising these if they occur with those responsible for oversight of these arrangements, or if necessary the adult protection team.
• completion of the forms containing the above information to be sent to the Care Inspectorate as required for its Adults with Incapacity Register
• names and details of guardians and those with powers of attorney, and when and how they should be contacted
• descriptions of any limitations to the powers of attorney and guardianship that have implications for service provision and delivery
• information from the records to be sent to or made available to stakeholder organisations as required, eg local authority representatives such as guardianship supervisors or authorised officers, and the Care Inspectorate as part of the service’s annual return
• names and details of local authority supervising officers where involved with individuals under the Act and of the authorising office for each local authority involved in {{org_field_name}}, and when and how they should be contacted
• regular monitoring of the register to ensure it is complete and up to date and at least full annual auditing.

Staff Responsibilities

1. The service expects its care staff to be familiar with and capable of implementing the agreements and decisions that are identified on the personal plan, using the principles of supported decision making as recommended by the Mental Welfare Commission for Scotland.
2. The service will provide the appropriate training and supervision to enable its staff to implement each personal plan, which requires interventions under the Adults with Incapacity Act, to include supported decision taking.
3. It will also provide guidance on working closely with the representatives of people receiving care with welfare powers of attorney or guardianship responsibilities.
4. The service also expects its staff to involve people receiving care in all day-to-day decisions that need to be taken by seeking their consent and checking that the actions to be taken are consistent with their personal plan if the individual lacks capacity at the time.
5. Where a person receiving care needs to take a decision that lies outside of their ability at the time, staff must do everything to help the person to decide for themselves.
6. The service expects its staff to avoid taking decisions on behalf of a person receiving care unless they can show that it is necessary, and the person is at the time unable to take that decision themselves. Any such incident must be fully recorded.
7. The service expects its staff to take decisions for people lacking capacity only because they are necessary and in the person’s welfare interests. When in doubt that they can proceed in this way they must seek advice from their line manager.
8. {{org_field_name}} expects its staff to respect a person’s freedoms and human rights and to intervene and impose restrictions or restraints only where necessary to protect a person from harm and always in line with the legal agreements that have been made.

Training

The service provides staff training on all relevant aspects of the Adults with Incapacity Act 2000, associated codes of practice and guidance such as produced by the Mental Welfare Commission for Scotland.

It emphasises to staff the importance of complying with their professional code of conduct in their care and support of people who cannot take their own decisions because of lack of understanding, communication or retention.

It will always enable staff to improve their knowledge and develop skills in working with people receiving care over their decision making abilities.

New staff receive training in line with the Scottish Social Services Council induction frameworks.

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Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}

Reviewed on: {{last_update_date}}

Next Review Date: {{next_review_date}}

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