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HCS58-Legal Responsibilities Under the Adults with Incapacity (Scotland) Act 2000 Policy

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Legal Responsibilities Under the Adults with Incapacity (Scotland) Act 2000 Policy

1. Purpose

The purpose of this policy is to ensure that {{org_field_name}} complies with the Adults with Incapacity (Scotland) Act 2000 and associated Scottish legislation, regulation and guidance when supporting adults who may be unable to make, communicate, understand, retain or act on a particular decision. Capacity must be considered in relation to the specific decision to be made at the specific time it is required. Staff must not assume that a person lacks capacity because of age, disability, diagnosis, communication difficulty, dementia, learning disability, mental health condition, brain injury, stroke or any other condition. The service will support each person to make their own decisions as far as possible and will only support or act under lawful authority where this is necessary, beneficial, proportionate and the least restrictive option.

Our commitments include:

2. Scope

This policy applies to:

3. Legal and Regulatory Framework

This policy supports compliance with the following Scottish and UK legal, regulatory and professional requirements:

4. Understanding Capacity and Incapacity

Under the Adults with Incapacity (Scotland) Act 2000, an adult is a person aged 16 or over. Incapacity must be considered in relation to the particular matter or decision in question. A person may be incapable in relation to a matter if they are incapable of:

because of mental disorder or inability to communicate because of physical disability. Capacity may vary over time and may differ depending on the complexity, timing and circumstances of the decision.

Staff must always begin from the presumption that the person can make their own decisions unless there is evidence to suggest otherwise. A diagnosis, disability, communication need, age, behaviour that others consider unwise, or disagreement with professionals must never be treated on its own as evidence of incapacity.

Capacity may be affected by conditions such as dementia, learning disabilities, brain injuries, mental health disorders, or stroke-related impairments. The Act allows interventions to be made in the least restrictive and most supportive manner.

4.1 Decision-Specific Capacity and Consent Procedure

When a capacity concern arises, staff must identify the specific decision that needs to be made. Capacity must not be assessed globally unless this is clinically or legally appropriate. Examples of specific decisions include consent to personal care, medication support, sharing information, use of equipment, financial transactions, access to the home, nutrition and hydration support, healthcare appointments, or involvement of family members.

Staff must take all practicable steps to support the person to decide for themselves before concluding that they may be unable to do so. This may include:

Where the person appears unable to make the specific decision after support has been provided, staff must record:

Care staff must not make formal clinical or legal determinations of incapacity unless this is within their role and competence. Where a formal assessment, certificate, guardianship, intervention order or medical decision is required, the manager must seek advice from the relevant health or social work professional, local authority, GP, Mental Welfare Commission, Office of the Public Guardian or legal representative as appropriate.

5. Principles of the Adults with Incapacity (Scotland) Act 2000

All actions and decisions under or in connection with the Adults with Incapacity (Scotland) Act 2000 must follow the statutory principles:

5.1 Benefit

There must be no intervention unless it will benefit the adult and the benefit cannot reasonably be achieved without the intervention.

5.2 Least Restrictive Option

Any intervention must be the least restrictive option in relation to the adult’s freedom, consistent with achieving the purpose of the intervention.

5.3 Present and Past Wishes and Feelings

The adult’s present and past wishes and feelings must be taken into account, so far as they can be ascertained by any means of communication appropriate to the adult.

5.4 Consultation with Relevant Others

Where reasonable and practicable, the views of relevant others must be taken into account. This may include the nearest relative, primary carer, named person, guardian, welfare attorney, continuing attorney, intervener, independent advocate, or any other person appearing to have an interest in the adult’s welfare or financial affairs. Information must only be shared where there is consent, legal authority or another lawful basis.

5.5 Encouraging Skills and Decision-Making

The adult must be encouraged to exercise whatever skills they have concerning their property, financial affairs or personal welfare, and to develop new skills where possible.

Staff must apply these principles to everyday care and support, including personal care, medication support, communication, risk management, personal planning, financial safeguards, healthcare liaison and any restriction or intervention affecting the person’s rights.

6. Legal Mechanisms Under the Act

Several legal mechanisms exist to support decision-making for adults with incapacity:

6.1 Power of Attorney

A Power of Attorney is a legal document made by an adult while they have capacity, appointing one or more attorneys to act on their behalf. A continuing attorney may have powers relating to property and financial matters. A welfare attorney may have powers relating to personal welfare, care, support and health matters, depending on the wording of the document.

Staff must not assume that an attorney has authority for every decision. The manager or delegated senior staff member must request and record evidence of the Power of Attorney, including the certificate of registration with the Office of the Public Guardian and the specific powers granted. A copy or summary of relevant powers must be held with the person’s records and reflected in the personal plan.

Welfare powers can only be used when the adult lacks capacity for the relevant welfare decision. Where the adult has capacity, their own decision must be respected even if an attorney is involved. Where there is disagreement or uncertainty about the attorney’s authority, the manager must seek advice before acting.

6.2 Guardianship Orders

A guardianship order is granted by the sheriff where an adult lacks capacity and ongoing decisions or actions are required to safeguard or promote the adult’s welfare, property or financial affairs. Guardianship may include welfare powers, financial powers or both.

Staff must check what powers have been granted, the duration of the order, any conditions, and the identity of the guardian. The service must not assume that a guardian can make all decisions. Staff must act in line with the adult’s personal plan, the guardian’s lawful powers, the AWI principles, and the adult’s own wishes and feelings as far as these can be ascertained.

Where a guardian appears to be acting outside their powers, contrary to the adult’s welfare, or in a way that may cause harm, staff must report this to the manager immediately. The manager must seek advice from the local authority, Office of the Public Guardian, Mental Welfare Commission, Care Inspectorate or legal adviser as appropriate.

6.3 Intervention Orders

An intervention order is granted by the sheriff for a specific action or decision relating to an adult’s welfare, property or financial affairs. It is normally used where a one-off decision or action is required rather than ongoing powers.

Staff must check the exact terms of the intervention order before relying on it. The order must be recorded in the person’s file and reflected in the personal plan where relevant. Staff must not treat an intervention order as authority for unrelated decisions or ongoing decision-making unless this is clearly stated in the order.

6.4 Medical Treatment Under Section 47 Certificates

Part 5 of the Adults with Incapacity (Scotland) Act 2000 provides authority for authorised healthcare practitioners to give medical treatment to an adult who is incapable of consenting to the treatment in question, following the issuing of a certificate of incapacity where required. Section 47 certificates are completed by authorised healthcare practitioners, not by care staff.

{{org_field_name}} staff must not consent to medical treatment on behalf of an adult unless they have lawful authority to do so. Care staff may support the person to attend appointments, communicate their wishes, follow agreed healthcare advice, and share relevant information with healthcare professionals where lawful and appropriate.

Where a person appears unable to consent to treatment, staff must inform the relevant healthcare professional and must check whether there is a welfare attorney or guardian with relevant healthcare decision-making powers. Staff must record any Section 47 certificate or treatment plan that is shared with the service and must ensure that care and support provided by the service is consistent with the personal plan, the healthcare plan and the AWI principles.

Emergency treatment may be provided by healthcare professionals under common law or other lawful authority. Staff must call emergency services where required and must not delay urgent medical assistance because AWI documentation is unavailable.

6.5 Restrictions, Restraint and Limits to Freedom

{{org_field_name}} recognises that any restriction, restraint or limit to a person’s freedom may engage the person’s human rights and must be lawful, necessary, proportionate, time-limited, recorded, reviewed and the least restrictive option.

Staff must not use restraint, force, locked doors, removal of mobility aids, surveillance, physical intervention, continuous supervision, medication for control, or other restrictive practices unless this is lawful, necessary to prevent harm, proportionate to the risk, and in line with the person’s personal plan, risk assessment and relevant legal authority.

Any planned or repeated restriction must be reviewed by the manager and, where appropriate, discussed with the local authority, healthcare professionals, guardian or attorney, independent advocate, Mental Welfare Commission, Care Inspectorate or legal adviser. Where a restriction may amount to detention or deprivation of liberty, specific legal authority must be obtained.

Staff must record:

6.6 Covert or Disguised Medication

Covert medication means giving medication in a disguised form without the person knowing or consenting. This must only be considered in exceptional circumstances and must never be used for staff convenience or as a routine response to refusal.

Covert medication may only be considered where:

Care staff must not begin covert medication unless there is a clear written authorisation and care plan from the appropriate healthcare professional and the manager has confirmed that the required process has been followed.

7. Supporting Decision-Making, Communication and Advocacy

{{org_field_name}} will support people to make and communicate their own decisions wherever possible. Staff must adapt their communication to the person’s needs, preferences and pace. This may include plain language, easy read information, pictures, objects of reference, Talking Mats, communication passports, interpreters, sensory aids, assistive technology, family knowledge where appropriate, or referral to speech and language therapy.

The person’s communication needs, preferred decision-making support, important relationships, known wishes, signs of distress, and preferred methods of involvement must be recorded in their personal plan.

Staff must offer and support access to independent advocacy where:

Adults with incapacity must still be involved in their care and support planning as far as possible. Where a person has a welfare attorney, guardian or other proxy, staff must involve and consult them only in relation to the powers they legally hold.

7.1 Personal Plans, Reviews and AWI Records

Each person using the service must have a personal plan in place within 28 days of starting to use the service. The personal plan must set out how the person’s assessed needs, wishes, choices, communication needs, risks, outcomes and legal arrangements will be met.

Where AWI arrangements are relevant, the personal plan must record:

Personal plans must be reviewed at least every six months, sooner where the person’s needs, wishes, capacity, risks, legal arrangements or circumstances change. Reviews must involve the person as far as possible and, where appropriate, relevant representatives, advocates, family, carers and professionals.

Staff must maintain clear, accurate and up-to-date records of capacity concerns, consent, supported decision-making, consultations, legal documents, actions taken and outcomes.

8. Safeguarding Adults at Risk of Harm

{{org_field_name}} will act promptly where there is known or suspected harm, exploitation, neglect, undue influence, coercion, financial abuse, psychological abuse, physical abuse, sexual abuse, discriminatory abuse, self-neglect or organisational abuse involving an adult who may be unable to safeguard their own wellbeing, property, rights or other interests.

Staff must report concerns immediately in line with the Adult Support and Protection Policy and local multi-agency adult protection procedures. Concerns may involve family members, attorneys, guardians, staff, professionals, visitors, neighbours, other service users or any other person.

Where the concern relates to a person with impaired capacity, staff must consider whether AWI safeguards, adult protection procedures, police involvement, healthcare input, advocacy, local authority involvement, Office of the Public Guardian referral, Mental Welfare Commission advice, Care Inspectorate notification, SSSC referral or legal advice may be required.

Staff must record the concern, action taken, who was informed, immediate protective steps, the person’s views where these can be obtained, and any follow-up required. Staff must not investigate beyond their role where this may compromise an adult protection, criminal or regulatory investigation.

8.1 Financial Safeguards and Property

Staff must not manage, access or use a person’s money, bank card, PIN, online banking, benefits, property, possessions or financial information unless this is part of the agreed service, risk assessed, recorded in the personal plan and authorised under the service’s financial procedures.

Where the person has capacity, their consent must be obtained before any financial support is provided. Where the person lacks capacity for a financial matter, staff must check whether there is a continuing attorney, financial guardian, appointee or other lawful authority.

Staff must not borrow from, lend to, sell to, buy from, accept gifts from, or become financially involved with a person receiving care or support. Any concern about financial abuse, misuse of funds, pressure from others, unexplained spending, missing property or misuse of legal powers must be reported immediately to the manager and managed under safeguarding procedures.

9. Staff Training, Competence and Responsibilities

All staff must work in line with this policy, the SSSC Codes of Practice, Health and Social Care Standards, the person’s personal plan, and relevant legislation and guidance.

Staff must:

Managers and supervisors must:

9.1 Notifications, Duty of Candour and External Reporting

The manager must ensure that all required notifications are made to the Care Inspectorate and other relevant bodies within required timescales. This includes, where applicable, protection concerns, allegations of misconduct, significant incidents, injuries, medication incidents, deaths, serious adverse events, staffing concerns, absence of manager, and any event that may affect the health, welfare or safety of people using the service.

Where an incident has caused or may have caused harm, the service will act openly and honestly, provide appropriate information and support, investigate and learn from the incident, and comply with organisational duty of candour procedures where applicable.

Staff must report immediately to management any incident, error, omission, concern or change in circumstances that may affect a person’s safety, rights, legal safeguards, capacity, care or support.

10. Monitoring, Audit and Continuous Improvement

{{org_field_name}} will monitor implementation of this policy through:

Audit findings must be used to identify learning, update personal plans, improve staff practice, revise risk assessments, inform staffing arrangements and update this policy where required.

11. Related Policies

This policy should be read alongside:

12. Policy Review

This policy will be reviewed at least annually and sooner if there are changes to legislation, Scottish Government guidance, Care Inspectorate guidance, SSSC requirements, Mental Welfare Commission guidance, local adult protection procedures, case law, service registration conditions, or operational practice. The review will consider audit findings, incidents, complaints, safeguarding concerns, inspection feedback, staff feedback and feedback from people using the service and their representatives.

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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