WELCOME Aims for today Pass on results from recent AWI consultation - PowerPoint PPT Presentation

WELCOME Aims for today Pass on results from recent AWI consultation • Advise main themes emerging from consultation • Set out next steps •

Overall view and main themes 316 responses Themes emerging  Clear need for change to legislation.  Even more need for change to practice.  Consultation does not go far enough in meeting requirements of UNCRPD.  Actions needed to provide support for decision making, and support for carrying out decisions.  Must strike right balance between supporting individuals and upholding their rights and viable provision of care and support. Consultation does not do this.

Overall view and main themes 316 responses Themes emerging  Multi agency training needed.  Independent advocacy should be given same status in AWI legislation as it holds in Mental Health legislation.  Must avoid overly prescriptive legalistic systems.  Agreement around areas of law needing change – less so on how to achieve effective change.

Do you agree with the overall approach taken to address issues around significant restrictions on a person’s liberty? 142 responses YES - 118 NO – 18 BUT WITH COMMENTS 6  Offers more flexibility and  Concerns about consistency of clarity. terminology given deprivation of  Accurately describes careful liberty is term used by the Supreme decision making. Court.  ‘deprivation of liberty’ – ‘too  Concerns might result in every black and white’. person in a care setting having a  Must consider how a person guardianship order. lives as well as where they live.  Preference for ensuring that the  Question of consent needs focus returned to the will and more consideration – consent preference of the adult. must be fully informed and  Unwise to include statutory freely given. definition: duty to ensure reasonable steps had been taken to avoid restrictions on liberty was essential.

In particular we are suggesting that significant restrictions on liberty be defined as the following: The adult is under continuous supervision and control and is not free to leave the premises; Barriers are used to limit the adult to particular areas of premises. The adult’s actions are controlled by physical force, the use of restraints, the administration of medication or close observation and surveillance. YES - 99 NO - 24  Preference for retaining term  Still concerns around clarity of ‘deprivation of liberty’ – restrictions language. on liberty considered ‘too soft’  Need for strict guidelines to  Need to consider ‘regular’ use of minimise misuse. restrictions before steps taken;  Need to consider other types of  Help should be given before matters get to this stage; restrictions such as restrictions on  Concerns re how capacity would be meeting with people, use of IT and assessed, who would determine the way surveillance might be this; carried out.  For persons with dementia a  Must have clear process for suitable environment can help a lot scrutiny and review, system must so lack of this could arguably be be flexible enough to allow for restricting freedoms of the adult. short term use.

Are there any other issues we need to consider here? 61 answers  Ensure legislation could cope with short term and long term loss of capacity, dynamic fast changing situations.  Resources huge concern.  Facilitate someone’s capacity, rather than simply assess.  Ensure a connection with risk of harm and need for restrictions on liberty and for that risk to be proportionate.  Definition of valid consent.  Consider at what point everyday restrictions become an infringement in liberty.  Overlap of legislation.  Might address the law but it is at variance with priorities in relation to hospital discharge.

What next?  More work over the summer and put findings to a small working group in the autumn.  New proposals to be tested out early Jan 2019.  Must find balance between protecting and upholding peoples’ rights and a viable system of care – but avoid bureaucracy that has hampered DOLS scheme in England.

Principles of the Adults With Incapacity Legislation Proposed new principle There shall be no intervention in the affairs of an adult unless it can be demonstrated all practical help and support to help the adult make a decision about the matter requiring intervention has been given without success.

Questions Do you agree we need to amend the principles of the AWI legislation to reflect Article 12 of the UNCRPD? YES – 117 NO – 24 Does our proposed new principle achieve that? YES – 75 NO – 51 Is a further principle required to ensure an adult’s will and preferences are not contravened unless it is necessary and proportionate to do so? YES – 69 NO – 53 Are there any other changes you consider may be required to the principles of the AWI legislation? YES – 41 NO - 73

Summary of responses to all questions on principles  Better to amend existing principles to reflect requirements of the UNCRPD as a whole.  Must give more prevalence to the will and preferences of the adult.  Consider following model in mental health legislation.  Need for guardians and attorneys to be aware of and adhere to the principles necessary.  By far strongest message is that the duties attached to the principles and the scrutiny of the performance of those duties requires to be much more robust.  “The problem with principles has been they are rarely enforced and often ignored”.

What next?  We will work with our legal colleagues to draw up amendments to the existing principles that more accurately reflect the wider requirements of UNCRPD.  We will test out these principles early in 2019.

Do you agree that there is need to clarify the use of powers of attorney in situations that might give rise to restrictions on a person’s liberty? No-5 Yes-135  Defined wording set out by regulation  The granter is given guidance on best would provide clarity. practice to select an attorney. The  Individualised and comprehensive PoA level of power is delegated to the attorney who will interpret the detailed powers will better protect the appropriate level of restriction on a granter. person’s liberty.  Granter must think about when an attorney can consent to circumstances amounting to confinement.  Periodic review by some form of judicial body or authority if restriction on person’s liberty.  PoA would require significant alterations to meet Article 5 ECHR requirements.

If so, do you consider that the proposal for advance consent provisions will address the issue? No-35 Yes-86  Clarity on the powers would provide  Significant level of detail is required assurance for all involved at times with regard any restrictions on when decisions around the use of liberty that are to be put into effect. restrictions need to be made.  The adult’s view will change over  Would act as a safeguard for the time and consent provision needs adult, in that their future care to reflect this.  Disquiet as to how such powers arrangements would be clear.  Compliance with Article 12 (4) CRPD would be monitored and by whom. must contain safeguards: are free of  Substitute decision makers should conflict on interest/undue influence, never be able to consent to proportional and tailored to the arrangements which would amount adult’s circumstances and apply for to a deprivation of liberty . the shortest time possible.

Is there a need to clarify how and when a power of attorney should be activated? No-9 Yes- 117  The granter can specify how his lack  Complexity of the process will put of capacity should be determined people off declaring a power of and confirmed. attorney .  “The current 16 (ba) clause in the  Extra cost and hassle of AWI Act is “in practice worthless”. continuously reviewing their  The PoA should include clear powers of attorney . instruction on the management of fluctuating capacity.  The document is registered straight away, distributed appropriately and proper system of notification that a PoA has been activated

If you have answered yes and have views on how this should be done, please comment here.  Clear tests in place to make it clear when a power of attorney has been activated as a result of loss of capacity.  A non-exhaustive menu of processes for activation as well as staged activation in cases where an adult loses capacity to take some decisions but not others.  Safeguards in place by way of challenge to Office of Public Guardian if it is perceived that a power of attorney has been activated early.  A document should specify the triggers for bringing its provisions into force, or, in the case of continuing powers of attorney come into force immediately upon registration. Preserve the grantor’s right to autonomy and self -determination and improve clarity of when a power of attorney is activated.

Summary  A reinvigorated look at powers would benefit all parties involved by reducing the number of resources required in the guardianship process.  In cases where an adult changes their mind the only restrictions applied are those which are absolutely necessary.  The grantor must be fully aware of the extent and consequences of authorisation.