1. Introduction
1.1 Under Section 10 of the Act the Local Authority has a responsibility to receive and investigate complaints relating to personal welfare.
1.2 These complaints may be in connection with Welfare Attorneys, Guardians or persons authorised to act under Intervention orders. [Section 10 (i)(c)]. Note - Anyone with powers to act on behalf of an adult with incapacity is know as a 'Proxy'
1.3 The Local Authority may also be asked to investigate the personal circumstances of any person who seems to them to be at risk. [Section 10 (i)(d)]. (Such risks may include financial exploitation, physical abuse, neglect and risks to personal safety, e.g. wandering, fire hazard, etc).
1.4 If a member of the public contact the Local Authority indicating that they believe that another individual, or they themselves, are at risk that at least an initial assessment must be carried out.
1.5 The Public Guardian has identical duties to investigate complaints or situations of risk concerning property and financial matters. Finance and property issues are often closely linked to concerns of a welfare nature therefore staff involved with any investigation need to liaise with the Public Guardians Office. (OPG)
1.6 Complaints or concerns may be brought to the notice of the Local Authority in any manner and must be passed to the appropriate Community Care or Mental Health Team without delay in order that the necessary assessment may be carried out.
1.7 All first line contacts must be aware that all assessments and investigations to be carried out under this legislation will be done by qualified staff. In some circumstances this task can be delegated to professionals not employed by the Local Authority.
2. Initial Assessment
2.1 The purpose of the initial assessment is to ascertain if there is any need to take action to safeguard the personal welfare of the adult, whether or not formal intervention may be required.
2.2 As a result of the initial assessment it may become clear that the adult concerned does not fall under the remit of this legislation as he or she does not lack capacity. However that individual may be vulnerable due to other reasons and alternative legislation may need to be invoked by the appropriate Service. For example the individual may be vulnerable due to physical frailty or may not have reached the age of sixteen years. (Please see Vulnerable Adults Guidelines)
2.3 In such a situation the officer undertaking an initial assessment will have a responsibility to ensure that the individual's circumstances are brought to the attention of the appropriate service.
2.4 Consideration should be given to use of the Care Programme Approach at this stage..
2.5 If, as a result of the initial assessment, consideration needs to be given to a formal investigation, the following procedure will be carried out.
3. Investigation Procedure
3.1 Please note: Reference must be made to Part 4 of the Local Authority Code of Practice before an investigation is undertaken. If the allegation is such that it is suspected that an offence has been committed advice is required from the police. The Team Leader or Investigating Officer should contact the local Inspector of Police without delay in order to pursue evidence and facilitate police investigation if necessary. This does not assume that criminal action has taken place, but does provide an opportunity for advice and consultation. It is important that if police investigation is required there is no delay in reaching this decision, which could hamper or prejudice the investigation.
3.2 The Investigating Officer will be a qualified professional and high priority will be given to this work.
3.3 Qualified professionals who carry out investigations under this legislation will be experienced members of staff who have received appropriate training.
3.4 The professional who is to be the Investigating Officer should seek to establish if the adult is already subject to any intervention under this legislation. For example has a welfare or continuing attorney been appointed or has an Intervention Order or Guardianship Order been pursued. Information about other family and professional contacts should also be obtained.
3.5 Where in the opinion of the Team Leader or other nominated officer the enquiry or complaint is one where urgent action is required the case will be allocated immediately to the appropriate professional who will carry out a preliminary investigation into the adult's circumstances.
3.6 On occasions a complaint may be about how a member of the Local Authority staff is carrying out the duties of Welfare Guardian or under an Intervention Order. In such a situation it would be inappropriate for the investigation to be carried out by a member of the same team. The Team Leader should consult with his or her line manager to determine who should carry out the investigation.
3.7 Consideration should be given to the withdrawal of the member of staff, whose actions are under investigation, from the case while the investigation is being carried out.
3.8 When the investigation is complete it may be appropriate to reallocate the responsibilities under the Act to another worker even if the concerns prove to be unfounded. This will be a matter for the line manager to discuss with the worker and all other relevant people.
4. Duties of the Investigating Officer
4.1 The Investigating Officer should open a file on the adult. It should remain a separate file for the purpose of the investigation.
4.2 The Investigating Officer must check with Highland's Adults with Incapacity Central Database to ascertain if any information is known about the adult in respect of the Adults with Incapacity (Scotland) Act 2000. Access to information contained in this database will be made available to Investigating Officers or team Leader Community Care and Mental Health as required.
4.3 Before any initial visit the Investigating Officer should check whether any other information is known about the adult. This would involve contacting other Teams, the OPG, the Mental Welfare Commission (MWC), as well as GPs, Hospitals, CPNs, District Nurses, etc.
4.4 The MWC and the OPG may have relevant information about the adult. Early contact with each organisation will ensure that all relevant information is gathered and may avoid duplication of effort.
4.5 The OPG will be able to advise if a power of attorney was granted after 1 April 2001, or if the adult has been subject to an application to withdraw funds. The OPG will also have information about applications for Intervention orders or Guardianship orders made after 1 April 2002.
4.6 The Investigating Officer should alert any other team or any other statutory authority that has knowledge of the adult that a matter of concern is being investigated.
4.7 The Investigating Officer should record all contacts made with other Teams or other agencies. Any matters of concern reported as a result of these contacts should be carefully documented.
4.8 The Investigating Officer should contact any Welfare Attorney, Guardian or person authorised to act under an Intervention Order to alert them that a matter of concern is being investigated.
4.9 The Investigating Officer should contact appropriate relatives and carers to advise them that an investigation is being carried out.
4.10 The Investigating Officer will need to be alert to the situation where the complaint is about the manner in which the Welfare Attorney, Guardian or person authorised under an Intervention Order, is carrying out their duties. The Investigating Officer will need to give careful consideration as to how and when that individual is informed about the investigation, and should discuss this with their line manager.
4.11 In some circumstances, especially where there us evidence that the adult is at risk from their carer(s), consideration should be given to not informing that individual about a proposed visit.
4.12 Similar careful consideration will be required when the complaint is about a relative or carer who has not been authorised to carry out any duties under the Act.
5. Contact with Adult and Proxies
5.1 The Investigating Officer should arrange to visit the adult as soon as possible.
5.2 The Investigating Officer should consider the Council’s policy on lone working. Where it appears appropriate to do so, visits to the adult and others involved in the complaint should be made by two people.
5.3 If it appears likely that access to the adult will be denied and where it appears that the adult is at risk due to mental disorder it may be necessary to implement action under Section 117 of the Mental Health (Scotland) Act 1984. This would require the involvement of a Mental Health Officer.
5.4 On the initial visit the Investigating Officer should explain the purpose of the visit to the adult and to all others who are concerned.
5.5 The Investigating Officer will need to take into account the principles of the Act and in particular should seek to ascertain the adult's past or present views of his /her situation.
5.6 The Investigating Officer should take particular care to establish clear communications with the adult. This may require the use of an interpreter, mechanical means or by the presence of an independent advocate. The advocate may be from an advocacy project or may be an independent person whom the adult trusts.
5.7 If the adult has not previously been determined to be incapable in terms of the Act it will be important to establish if the Act could apply.
5.8 It may be necessary to arrange for a formal assessment of capacity to be carried out but the investigation into the areas of concern should not be delayed while waiting on a formal assessment. The local authority may still have a responsibility to the adult as a vulnerable person.
5.9 The views of the adult, nearest relative, primary carer and anyone else having an interest in the adult’s affairs should be sought.
5.10 The Investigating Officer should interview everyone who appears to have an interest in the welfare of the adult
5.11 On completion of the investigation the Investigating Officer concerned should prepare a report on his findings which should incorporate recommendations for future action by the Local Authority or other agency where appropriate.
5.12 The recommendations of the Investigating Officer may include the possibility of further action under the Adults with Incapacity (Scotland) Act 2000 or some other legislation, eg Mental Health (Scotland) Act 1984.
6. Future Action
6.1 On completion of the Investigation the Investigating Officer should discuss his/her findings with his / her line manager.
6.2 The report will require to justify any action proposed as a result of the investigation. The Investigating Officer should in consultation with his/her line manager ensure that this is clear in the report.
6.3 Where a complaint has been received about the actions or omissions of a carer or proxy, the report’s findings, but not necessarily the full report, should be sent to the complainer and where appropriate to others consulted during its preparation
6.4 Consideration should be given to the need to hold a case conference to discuss the investigation and the report.
6.5 When a case conference is held all relevant people and agencies should be represented at this case conference, including a representative of the Council’s legal service. (Also please refer to Intervention and Guardianship Procedures).
6.6 A formal minute of the case conference should be taken. This will be especially important when the decisions to be reached at the meeting might include future action under the Act.
6.7 Where the investigation is carried out as a result of a complaint against a proxy, or against a carer who is not a proxy, it will be important to decide at an early stage if that person should attend the case conference.
6.8 If a proxy is excluded from the case conference for any reason he or she should nevertheless be made aware of the outcome of the investigation.
6.9 Consideration should also be given about the adult's attendance at the Case Conference. In many cases it will be entirely appropriate that the adult attends. In any event care should be taken to ensure that the adults interests are taken into account. This could be achieved through the presence of an advocate who may be from an advocacy project or could be an independent person whom the adult trusts.
6.10 A copy of the report and the decisions of the Case Conference must be sent to the MWC and to the Public Guardian.
6.11 The results of the investigation should be entered into Highland Council’s Adults with Incapacity Central Database. The person who chairs the case conference will be responsible for ensuring that the information is passed to the database holder, within three working days.
6.12 Where appropriate recommendations from the case conference should be incorporated into the adult's care plan.
7. Reference Material
7.1 Reference must be made to the Act, its Explanatory Notes, the Local Authority Code of Practice the Codes of Practice for Persons Holding Powers of Attorney, Guardianship or persons Acting Under an Intervention Order.
7.2 Copies of the Act, Explanatory Notes and Codes of Practice will be available on the Highland Council's website.
7.3 Access to the Act, Explanatory Notes, Codes of Practice and other information may also be obtained from the Scottish Office website at; www.scotland.gov.uk/Topics/Justice/Civil/awi
7.4 Information and advice concerning the Act may be obtained from The Mental Welfare Commission for Scotland K Floor, Argyle House, 3 Lady Lawson Street Edinburgh EH3 9SH Tel: 0131 222 611 e-mail: support@mwcscot.org.uk
7.5 Information and Advice, particularly concerning issues of property and finance, may be obtained from the Office of Public Guardian, Hadrian House, Callander Business Park, Falkirk, FK1 1XR Tel 01324 678300 e-mail: opg@scotscourts.gov.uk website address: www.publicguardian-scotland.gov.uk
7.6 Information and advice is also available from many other agencies including Alzheimer Scotland – Action on Dementia 0131 243 1453, Age Concern Scotland 0131 220 3345, Capability Scotland 0131 313 5510, and ENABLE 0141 226 4541.
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