Involuntary placement north (and south) of the border

I recently came across a report entitled What’s going on with Section 13ZA? (pdf), written about by the Learning Disability Alliance Scotland (LDAS) and the Scottish Independent Advocacy Alliance (SIAA).  The report is about the involuntary placement of adults with learning disabilities in care services in Scotland under s13ZA Social Work (Scotland) Act 1968.  The relevant section is copied in full at the bottom of this post (as the relevant statute isn’t up to date on legislation.gov).  

Section 13ZA basically says that where a local authority has decided that an adult’s needs call for the provision of a community care service, and it appears to them that the person lacks “mental capacity”, then ‘the local authority may take any steps which they consider would help the adult to benefit from the service.’  Section 13ZA requires the local authority to apply the principles of the Adults with Incapacity (Scotland) Act 2000 in exercising this power.  These are broadly similar to the five principles of the Mental Capacity Act 2005 (MCA) of England and Wales, and the procedure for ascertaining a person’s best interests (although there are some interesting differences, but I won’t dwell on those today).  

The procedure was introduced, according to the LDAS and SIAA, to resolve a perceived problem with ‘bed blocking’ by older patients with dementia, who could not consent to their placement in a care home.  The process of appointing a guardian with the requisite legal authority to make this decision on their behalf was considered to take too long and to be ‘too invasive’, so this power is used instead for one-off decisions about placement in care services.

Concerns about the use of s13ZA

The concerns of the LDAS and SIAA about the use of s13ZA are fourfold:

1. Sometimes Section 13ZA decisions are taken without reference to the specific legislation or letting people know what is happening. This restricts people’s rights to challenge decisions as it assumed that the council has the full power for what is being done and the right of other “professionals” to challenge the decision is not spelled out.
2. In section 13ZA cases decisions are taken by interested professional e.g. social worker, nursing staff, occupational therapists. Independent Advocates are not being treated as “interested professionals”. This means that while local authorities will pay “due regard” to the view of advocates and provide them with minutes of the decision making meetings, they cannot be part of the decision making process itself.
3. The process of decision making does not require the active agreement of all interested professionals. In Child Protection cases, the standard practice is when a decision is to be taken all professionals are asked to state their agreement or their dissent. This forces all parties to be clear about their responsibility for the decision. In Section 13ZA meetings the process can be a proposal and a general request for dissent. If no voices are raised then it is assumed this is agreed. This is not simply a different process but one which can allow the unstated “conflict of interest” between social worker as the purchaser of care services and as the arbiter of an individual’s care.
4. A fourth concern is that care plans are often not agreed in detail prior to a section 13ZA decision being agreed. The care plan can be as broad as a “moving to a care home” or moving “to the first available place out of a group of 4 care homes.” The legal duty is clear that there has to be agreement on the future care prior to considering the use of section 13ZA. There are many quality differences between care homes and they cannot be treated as if they were a single unit. In some cases, mitigation of the change, such as temporary transfer of staff could have been included if the detail had been made available. Decision on the authority prior to the care plan may undermine this.

The Mental Welfare Commission of Scotland have expressed concern (pdf) that local authorities ‘must consider whether any action taken under section 13ZA will result in a deprivation of liberty because this is not specifically authorised under the Social Work Act’ (p35).

The LDAS and SIAA also raise concerns that nobody is monitoring the use of this provision in Scotland, and they themselves have been unable to gather any statistics on how often it is used under the Freedom of Information Act 2000 because only a small handful of local authorities are actually recording this data, or at least not in a way where its use on people with learning disabilities could be easily extracted.

Scattered thoughts…

  • In Scotland, there is a greater emphasis on formal authority for making substitute decisions, which is why often a guardian has to be appointed, and s13ZA had to be created to place “bed blockers” (don’t you hate that phrase?!) into care homes without their consent (if you are as woefully ignorant of Scottish incapacity law as I am, you might find this introduction by Adrian Ward and Jill Stavert from the 39 Essex St Mental Capacity Act Newsletter helpful).  In England and Wales, we didn’t have this problem as we have a ‘general defence’ for acts connected with care and treatment – including involuntary placement – which is based on the case of Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, and codified in s5-6 MCA.  I often hear people say that the general defence is ‘not a power’, but it’s striking that it can be used to effect exactly the same ends as the formal power that is used north of the border.  The general defence is really a power in all but name – but what are it’s limits?
  • The problem of a lack of clarity about who is responsible for a decision made under s13ZA is if anything exacerbated under this ‘general defence’ approach, as the Best Interests Decisions Study found.
  • Even though in Scotland the authority to place somebody in a care service without their consent is formalised as a power.  The point made by LDAS and SIAA that often local authorities do not explain the source of their power to place people in care services making it hard for people to challenge points to a wider problem about upholding people’s rights: unless a person understands the power that they are subject to and its limits, how can they challenge it?
  • On both sides of the border, there is a lack of clarity about when involuntary placement constitutes deprivation of liberty (*drums fingers, checks the UK Supreme Court website, no sign of a judgment in Cheshire West this week*).
  • Both the Scottish approach and that taken under the MCA are likely to conflict with the UN Convention on the Rights of Persons with Disabilities (CRPD) – including elements on legal capacity (Article 12), independent living (Article 19) and possibly also the right to liberty (Article 14).  The Article 12 issue is likely to involve violations in three main respects: 1) an approach to involuntary placement based on mental incapacity is likely to be considered discriminatory and in violation of Article 12(2), which requires that people with disabilities enjoy legal capacity on an equal basis with others; 2) neither England and Wales, nor Scotland, has any detailed or meaningful legal framework for providing support for the exercise of legal capacity, in contrast with other jurisdictions; 3) there are very few safeguards on the decisions made under either s13ZA or the ‘general defence’ of the MCA (in violation of Article 12(4)).  At some point I will put up a resources page on legal capacity and the CRPD… I promise.

Section 13ZA Social Work (Scotland) Act 1968 – full text

(1)     Where—

(a)     a local authority have decided under section 12A of this Act that an adult’s needs call for the provision of a community care service; and
(b)     it appears to the local authority that the adult is incapable in relation to decisions about the service,
the local authority may take any steps which they consider would help the adult to benefit from the service.
(2)     Without prejudice to the generality of subsection (1) above, steps that may be taken by the local authority include moving the adult to residential accommodation provided in pursuance of this Part.
(3)     The principles set out in subsection (2) to (4) of section 1 of the 2000 Act apply in relation to any steps taken under subsection (1) above as they apply to interventions in the affairs of an adult under or in pursuance of that Act.
(4)     Subsection (1) does not authorise a local authority to take steps if they are aware that—
(a)     there is a guardian or welfare attorney with powers relating to the proposed steps;
(b)  an intervention order has been granted relating to the proposed steps; or
(c) an application has been made (but not yet determined) for an intervention order or guardianship order under Part 6 of the 2000 Act relating to the proposed steps.
(5)     In this section—
(a)     “the 2000 Act” means the Adults with Incapacity (Scotland) Act 2000 (asp 4);
(b) “adult” has the meaning given in section 1(6) of the 2000 Act;
(c)     “community care service” has the meaning given in section 5A of this Act;
(d)     “incapable” has the meaning given in section 1(6) of the 2000 Act;
(e)     “intervention order” is to be construed in accordance with section 53 of the 2000 Act”;
(f)     the reference to a guardian includes a reference to—
(i)     a guardian appointed under the 2000 Act; and
(ii)     a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;
(g)     the reference to a welfare attorney includes a reference to—
(i)     a welfare attorney within the meaning of section 16 of the 2000 Act; and
(ii)     a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.
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