The Use of Section 13ZA.
Section 13ZA was a recent addition to the Social Work (Scotland) Act 1968. It was designed to end bed blocking in the NHS. Many older patients with dementia no longer had the capacity to consent or disagree with a decision to move into a care home in the community. As the guardianship process took so long to conclude, a large queue built up. 13ZA allowed social work and other interested professionals to act quickly in the person’s best interests. This was in line with the principle of “least invasive” intervention.
However there have been some recent concerns that Section 13za could be used to move people with learning disabilities from individual tenancies to cheaper care home placements. Many of the people who use support services are now over 65 after having been in long stay hospitals for over 20 years of life. But these placements are relatively expensive compared to care homes for older people.
Our 2011 report “Stuck” looked at the experience of people with learning disabilities who had been placed in Care Homes for Older People. There were many problems—lack of training, communication difficulties and significant age gaps between residents
As social workers are purchasers of care home placements as well as the operators of section 13za actions, there is a fear that unless basic safeguards are put into place then people may be unfairly moved.
Some of the problems that have emerged are over the practice of applying the legislation.
1. In section 13za cases decisions are taken by interested professionals e.g. social worker, nursing staff, occupational therapists. 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 process itself.
2. Decision making often does not require the active agreement of all interested professionals. In Section 13za meetings the process can be a proposal and a general request for dissent. If no voices are raised then agreement is assumed. This can allow the “possible conflict of interest” between a social work manager as the purchaser of care services and the social worker as the arbiter of an individual’s care to remain unstated.
A third 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 exact future care prior to considering the use of section 13za.
The Mental Welfare Commission is worried that there is a lack of sufficient safeguards. They found that local authorities are already falling well short in supervision of Welfare Guardianship under the Adults with Incapacity Act and that local authorities do not routinely monitor the use of 13ZA at present. There, in fact, is no one monitoring the use of 13ZA in Scotland.