6 The Community Setting
Introduction
6.1 This section documents the views and experiences of those who work in the community setting. It is based mainly on data drawn from interviews with managers of care homes and with the Care Commission. The views and experiences of other organisations are also included where appropriate. Data collected via the questionnaire in the first stage of the study is also presented.
6.2 The community setting is diverse and there are a wide range of organisations offering a variety of services to different groups of people in this sector. The variety of systems and establishments has resulted in a number of different approaches to implementing or working with AWI. Our findings reflect this variety. Whilst we found considerable variation between health boards, differences in this sector were even more apparent.
6.3 As stated in Chapter 4, health boards are now operating in a different social and policy environment than that which existed when the AWI legislation was first drafted. So too are care homes. Many people who would previously have been cared for in hospitals now live in community settings. As a result the care homes are now looking after and provide care and assistance to a much more diverse population many of whom are frail and vulnerable. As a consequence some of their residents for example now have much higher nursing needs than would have existed 10 years ago. There are now many more people who would be defined as incapable under legislation living in care homes and this has impacted on care home practice.
6.4 In selecting the sample of Care Home managers for interview we tried recruit some who had experience of using Part 4, although they were difficult to find. Three homes were identified which claimed to have residents with finances managed under Part 4, however we feel fairly sure that one of these managers had confused Part 4 with DWP Appointeeships.
Use of AWI Part 4 in the community setting
Uptake
6.5 In their return to the questionnaire the Care Commission reported that there were 30 establishments in Scotland with residents whose finances were being managed under AWI Part 4. As with the figures from the Health Boards, these results must be treated with care. The Care Commission reported that their current recording practices make the provision of this sort of data difficult. At the time of the research all Part 4 certificates were issued and recorded locally. Initially, there was no central register of the certificates issued by each of the five Care Commission Regions. However, following a review of this practice, it is intended that a record of all certificates of authority issued will be held centrally at the Care Commission's head office in Dundee. This should enable auditing to be carried out more easily in the future.
6.6 There were, according to the Care Commission, no residents with finances managed under Part 4 in either independent hospitals or private psychiatric hospitals. This, it was reported, was due to the relatively short length of time patients would reside in such establishments, between two weeks and two months, and the time taken to process an application. One exception to this was provided by the Care Commission where a private psychiatric hospital had applied for Part 4 to manage savings accrued from benefits and protect such funds from the patient's family. This application was refused on the basis that such funds should be managed under DWP Appointeeship, as the least restrictive option. The Care Commission confirmed that no applications for limited registration had been made by any organisation.
6.7 Uptake of AWI Part 4 appears to be much lower than expected. Given the lack of availability of statistics at the time of the research it is difficult to determine to what extent these figures accurately reflect the use of AWI Part 4 in care homes across Scotland.
6.8 Data from interviews with care home managers, the representative from the Association of the Directors of Social Work ( ADSW), the Care Commission, the Office of the Public Guardian and with representatives from voluntary sector organisations would suggest that by far the greatest number of incapacitated adults living in the community have their funds managed through DWP Appointeeships. The representative from the ADSW for example reported "I'm not sure that many of our providers are actually taking up, em, the chance to do it. It is more through DWP". The representative from Alzheimer Scotland felt sure that there were many more people who might benefit from AWI; while other organisations were unsure. One organisation felt that there was one person in one of their homes who may be covered by AWI Part 4 and they were looking in to this.
Number of people in the community care sector that might benefit from AWI Part 4
6.9 There are no statistics available that would allow us estimate how many people there are in Scotland living in registered settings in the community with incapacity who would fall under, or would benefit from, AWI Part 4. In 1999 the Scottish Executive estimated that there were approximately 150 patients in Greater Glasgow discharged from hospital 'without being fully mentally capable' with a similar proportion in other health board areas. This number was expected to rise by 540 across Scotland in the following year (Thorpe and Wright 1999). These figures would suggest that there is under usage of Part 4 in the community. It is, however, difficult to quantify.
6.10 Estimates can be made of the number of people living in Scotland with dementia, with a learning difficulty or with a severe mental health problem. What cannot be estimated are the number of those who already have awarded a power of attorney, the number of people with a private income source and the number of people who have someone who can act on their behalf. There are too many assumptions to be made to generate meaningful figures and consequently the number of people who may be eligible for and may benefit from AWI Part 4 cannot be estimated from the available data.
Knowledge of and views on AWI Part 4
6.11 Most of the care home managers and owners had at least some knowledge of AWI in general and Part 4 in particular. They had a basic understanding of the principles of the Act and the intentions of Part 4. However, very few had detailed knowledge of AWI and even fewer had experience of either the practical implications of the legislation or of working with the Act. In the interviews very few of our informants were able to discuss the Act in any detail. We were, for example told " I couldn't tell you what the main aims of the act are because I've not sat and read it, but then I've never needed to." Others were even less knowledgeable, "I would have to say, can you actually remind me what Part 4 is?" The data generated in this study suggests that AWI Part 4 is as the Care Commission had suggested very rarely used in care homes.
6.12 Many of the care home staff interviewed, had only been in post a relatively short time. This is typical of staff in this sector, where there is very high turnover at all levels ( NCF 2008). It was clear that many of the managers interviewed had had no training in AWI Part 4 and had not had to deal with residents who they considered came under AWI Part 4. All care home managers interviewed felt that more information and more training on AWI would be beneficial. Many felt that current information was inaccessible and was too legal in its approach. It was reported to 'put off' rather than help many people. Managers wanted ' easy to read' guidelines. Some of the larger care homes or those that were part of a larger organisation had developed their own information on the topic and had leaflets detailing their own policies and procedures for using AWI Part 4.
6.13 There were mixed views on the legislation itself. All those interviewed supported the spirit of the legislation. Managers recognised the importance of AWI Part 4 in protecting and upholding the rights of clients to access monies. They were also aware of the potential Part 4 offered both them and their residents in terms of protection. Those that had used it, or who had some knowledge of the Act, saw it as a good way of ensuring that their residents got access to their funds quickly and safely:
Probably get everything they need quicker than if a relative was involved. If they need new clothes it is possible to speak to the owner of the home and get the necessary funds to purchase clothes. Care home manager
6.14 One care home manager described how he had used the legislation as a way of 'protecting' an individual from her own family, who did not give her access to her money and as a result she had no money to spend on hairdressing, clothes, confectionary etc By using Part 4 the manager had put a system in place to ensure that families did not abuse this money and that the money was made available to the resident. Being able to use Part 4 in this case was described as a real benefit.
6.15 The wording of AWI, as in the health sector, was seen as ambiguous, overly complex, difficult to operationalise, inflexible and too demanding. The scale of the documentation required was described by one respondent as ' monumental'. The application form is nearly 20 pages long. People felt that they had ' enough responsibility without taking this on'. Whilst in general many care home managers recognised the potential offered by AWI Part 4, they were loathe to take on both the workload and the responsibility entailed in both applying for a certificate and in managing somebody's funds. They were aware that if they did not fulfil this role then their residents would not have access to their funds and their quality of life might be affected. However, Part 4 was seen as placing too many demands on them as a manager. It was too complicated for what it gave. This created a dilemma for many of the managers. Respondents told how demands made by the Care Commission were very time consuming and that people working in the registered establishments did not have the time to comply with all the requirements. One interviewee commented:
'Our staff have backs against the wall as it is, here's another piece of bureaucracy'
Another insisted
'I'm a nurse not an accountant'.
Yet another claimed that
"75% of my job as a care manager is doing paperwork we are too focused on paperwork and bureaucracy".
6.16 The Care Commission commented that the complexity of the application procedure was forced on them by the demands of the legislation. The requirements laid out in the AWI were the driver behind the current procedure and until this was changed they could not simplify the process.
6.17DWP Appointeeships were seen as being much less demanding and much easier to use. The representative form the Association of Directors of Social Work made this point eloquently:
People seem reasonably happy as well with the processes that they already had in place. So, in terms of an audit trail, they already have very good audit trails there for administering any money that they are helping with, em, and folks seem happy with that.
6.18 These feelings were shared even by those who had residents with finances managed under AWI Part 4. They felt that as long as the numbers were kept relatively low they were prepared to continue but:
I think when you've only got say, three residents out of twenty-two that's okay but when you end up wi, like twenty-three residents out of twenty-three then that would be a, much more a, em, you know, onus on your shoulders, sort of thing, you know. Em, so, I wouldn't like to be in the position that I was, em, you know, responsible for twenty-three residents (Care Home Manager)
6.19 There were two care managers who took an opposite view. They argued that the management of financial affairs was a crucial aspect of their notion of care. For these managers, care was not simply about attending to the physical needs of clients but encapsulated a notion of holistic care one which incorporated physical, financial and spiritual matters. Care is ' not just giving tablets and blowing noses'. AWI Part 4 was seen as being an essential part of this model of care.
6.20 All managers felt that Part 4 was seen as placing too many demands on them and that it was difficult to claim recompense for this work. Costs were cited as a major stumbling block. One reason given for care home not using AWI Part 4 was because they did not get paid for it. Financial management of the scale demanded under the AWI"could be a job in itself". In theory the legislation does allow care managers to claim back money for time taken to either prepare an application for a Certificate or to actually manage a resident's finances, but many felt uncomfortable doing this. They felt it would be hard to justify these costs to the Care Commission or other auditor. Typical comments from care home managers included:
We don't get paid for the responsibility
Surely the social work department should take on this responsibility
The care home is not a legal body to take on that responsibility
6.21 Some care home managers questioned whether providing financial support was part of their contractual duties:
We are part of a contracting culture and as such we are contracted to provide a service to the Local Authority, they are commissioned to do a job and their role is to support an individual, that level of support is defined by the Local Authority in the contract… It should not be [our role] to administer this.
6.22 Respondents reported that not only was the process of applying for a certificate of authority to manage funds too complicated, the process of getting a resident assessed as incapable of managing their own finances was also highlighted as a problem. The process was felt to be cumbersome, time consuming and expensive, with some GPs charging up to £100 for this service.
6.23 Some care home managers also expressed the opinion that local authorities, health boards and the Care Commission could not cope if the care homes started to submit applications for certificates for all those who were eligible to apply. Consequently people who may lack capacity were not assessed, one care home manager reported:
There is a conspiracy of silence; we don't ask questions, this is held by the LA, by us and by the private sector. There is an unspoken understanding. We don't ask questions.
6.24 When originally drafted AWI Part 4 was intended to be an option of last resort and it has comfortably achieved that. Many care homes have instituted a range of policies and procedures which almost seem to be designed to avoid the necessity of using AWI Part 4. Whilst many of the care homes have no policies or procedures specifically on AWI Part 4 they do have policies and procedures for guardianship and actively take steps to encourage their residents to take out power of attorney. Some homes have procedures in place that seek to encourage families or others, if anyone suitable can be found, to manage the finances of residents rather than taking on the responsibility themselves. This was the practice before AWI Part 4 was in place and care homes have continued to do this. Care home managers described how, during the early stages of discussion about entering the care home, the care home manager would discuss POA or guardianship for finances and welfare with the potential resident and/or their family. This enabled the establishment of a POA or guardianship but these were not initiated until needed. This practice removed uncertainty as all concerned were then aware of exactly who was handling affairs and in what circumstances and all could be included in the decision making processes.
6.25 There was some evidence to suggest that some care homes were using or promoting the idea of Guardianship to circumvent the need to use other legislation such as AWI Part 4. One large charitable organisation with a number of care homes for example told us that they always took this route with their residents and a discussion on Guardianship was part of the initial assessment prior to admission to the home. The Mental Welfare Commission and the Office of the Public Guardian interviewees both suggested that there had been a recent rise in the number of Guardianships.
6.26 We found no indication of care home staff selling off residents' valuable assets. Again people were uncomfortable with this part of the legislation. In order to sell assets managers are required to apply a cost benefit analysis to weigh up what would be in the best interest for the individual. It is the discretionary nature of this area of AWI Part 4 that managers struggled with.
6.27 Some of the respondents expressed concern about the potential for AWI to remove autonomy from the individual. Capability for example reported that the majority of their clients have some capacity and, as an organisation, they promote people's rights. One care home argued that AWI Part 4 went against its fundamental principles. They adopt what they termed a 'person centred approach' and aimed to support independent living and encourage residents, where possible to take control of all aspects of their lives. They felt that through employing these work practices they were able to ensure that all actions they took were of benefit to the adult. This perhaps reflects a poor understanding of the legislation. The purpose of the AWI Act is not to disempower individuals, it is to take steps to promote their quality of life and this misunderstanding suggests that more information and better training is needed.
6.28 It is important to point out however that despite these misgivings and concerns only one service provider contacted had 'opted out' of the Act. All other care providers recognised that they had a duty to keep the possibility of using AWI Part 4 open. They wanted the processes and procedures associated with the management of residents' finances to be above board and legal. They felt that the principles behind AWI Part 4 protected not only their residents' rights but also their staff's. The position of the officer from the organisation who had opted out was that there was 'no point delving into it at the moment as it was not needed'.
Care Commission as a Supervisory Body
6.29AWI Part 4 has the potential to place considerable demands on the Care Commission. Unlike the health boards it has to prepare policies and procedures that are applicable to organisations that are not under its direct control. These include organisations drawn from the voluntary sector, the private sector and local authorities who provide services to people with a range of needs. The Care Commission covers the whole of Scotland. They operate in a completely different environment to the health boards and the State Hospital. Despite this, all three have to operate to the same Code of Practice. This was seen by many in the community sector as a major problem with the legislation.
6.30 The Care Commission itself has had to set up its own interpretation of the Code of Practice and its own policies and procedures. This was, they felt, the only way they could satisfy both the work of the organisation and attempt to meet the guidance contained within the Code of Practice. The Care Commission was in the process of revising its guidance and its policies and procedures at the time of the research. It recognised that many of its procedures were complex. They reported that there were currently 16-20 different procedures that could be used depending on the complexity of a case and that complex cases could take from three to six months to process depending on the knowledge of the care manager applying. The Care Commission respondent acknowledged that this could cause concern for care home managers.
6.31 The Care Commission have identified a number of other issues in the Code of Practice. There is for example currently no guidance or procedures for organisations that have previously opted out of Part 4 to opt back in again. And this has been referred back to the Scottish Government by the Commission. There are also no processes in place if a service user dies. There is no obligation placed on the manager for a statement of account neither is there any guidance on 'statement of authority' in the event of a death.
6.32 Perhaps the biggest issue that affected this sector was the issue of DWP Appointeeships, which has been discussed previously (Paras 4.39 and 4.40). The Care Commission base their policy and practice on legal advice they have received. The Care Commission do not issue certificates to manage any funds accrued from benefits:
Where we run into difficulty is for people with learning disabilities who are now in Care Homes and they've accrued lots, huge sums of money, eh, and we can't issue a Certificate for that because most of, or, ninety-nine point nine of the time it's money accrued from benefits.
6.33 Many of the care homes we spoke to said that they took their lead from the Care Commission, and consequently worked on the principle that all money accrued through benefits should be managed under that scheme, no matter how large that accrual. This has caused a great deal of confusion and concern, especially when dealing with Health Boards.
6.34 Concern was expressed, about the suitability of the Care Commission to act as a supervisory body. Some of the care home managers felt that the Care Commission's expertise lay in the regulation of care and that they did not have the necessary knowledge base to carry out the role of a supervisory body and they have no experience of financial audit:
'They are used to scrutinising paper trails but they are not accountants'.
6.35 The Care Commission themselves shared this view although they reported that they do have access to accountants and auditors if required. The Care Commission respondent commented that they 'have always felt uncomfortable with this role'. They would much prefer to hand this responsibility on to another body, possibly the Office for the Public Guardian.
6.36 Many of the managers of care homes commented on the role of the Care Commission as a supervisory body, although it must be again pointed out that only three of the managers we interviewed had had direct experience of AWI Part 4. It was also at times, difficult to separate out their views on the Care Commission as a supervisory body from their views of the Care Commission in general and their experiences of inspections. The managers views varied and they seem to be dependent on who their Care Commission officer was and their relationship with that officer. Managers were concerned that the Commission was 'constantly changing the goalposts'. Some people felt that the Care Commission did not have a thorough understanding of the problem and that their particular officer knew as little about AWI Part 4 as they did whilst others reported satisfaction in their dealings with the Commission.
6.37 Some care home managers felt that the Care Commission were very rigid in their application of AWI Part 4 and, as one manager described it ' very black and white, very clinical'. She went on to say they were unwilling to adapt the rules and were very exact in their interpretation of the legislation. Another care manager wanted to share responsibility for a resident's finances with another officer in the organisation, but reported that the Commission refused, demanding that only one person could be a signature to an account.
Managing residents' finances
6.38 This next section looks at how care homes are managing residents' finances under AWI Part 4. It is important to again note that these data are based on the limited experience of the legislation of 3 respondents.
6.39 Some policies that managers referred to when asked how they made decisions about managing their residents' finances were based on policies they have developed to help them spend resident's income where their finances are managed through DWP Appointeeships. It was difficult to separate out these two issues.
6.40 Banking was one of the major issues raised by the care homes in relation to managing residents' finances. There was a hope that AWI " would be a, a big solution for us in terms of bank accounts and all that and it's not". Many respondents reported problems in opening accounts, in managing accounts once opened and in moving money across different accounts in some banks. These concerns related not just to current accounts but also to savings accounts and to other saving schemes such as Individual Savings Accounts ( ISAs). There appeared to be some disparity between what different banks could do and were willing to do. There was some evidence to suggest that English banks were less aware of the legislation than their Scottish counterparts. They felt that the banks did not understand the legislation. One manager reported that the bank staff were constantly changing and that it was difficult to build up a relationship with the bank:
trying to get an …account set up so that you are co-signatory, em, is very, very difficult because you need so many forms of identification, you need so many letters from the GP and things like that and the banks just don't have these type of accounts in place, em, to set them up.
6.41 Under AWI Part 4 an individual's money must be held in a named account. Managers are not allowed to pool money. This, it was felt, increased workload for a manager if they were managing the finances of a number of residents.
6.42 The actual management of finances was also raised as an issue. Many of the limited number of managers interviewed felt unqualified to make the necessary decisions about where best to place a resident's money to achieve the best return whilst ensuring that their finances were safe. They did not know what to do with stocks, shares, bonds or other saving schemes and the Care Commission were not in a position to help them. Managing these sorts of finances caused, or could cause, high levels of anxiety. Whereas in hospitals a patient fund manager might be able to draw on the expertise and support of others from within their own organisation, care home managers have to take these sorts of decisions on their own.
6.43 As in the NHS hospital setting, care home managers also expressed concern about the amount of work involved in trying to spend all of a resident's income. There is only so much that can be spent on hairdressers and flowers. Many people only have limited needs and wants. Spending a resident's money can entail considerable effort and there was concern expressed about charging for this. One care home manager made the point that if they do not spend the money there is a danger that a resident may accrue enough savings that would take them over the cut off point for benefits and their income might be reduced.
6.44 The care home managers interviewed used a variety of means when trying to decide how to spend a resident's money. All held individual case conferences, where they invited family members, friends, and relevant health and social care professionals to discuss options. All decisions were based on their knowledge of the resident. It was the view of one respondent that 'Staff need to know residents inside out in order to be able to make decisions on their behalf'. Managers tried to weigh up the costs and the benefits to be gained for the resident. All managers talked about trying to combine care and finance into one package. They all spent the money carefully and all finances were monitored through the case review with associated key workers.
6.45 Residents' money was used to purchase a variety of goods and services. These included hairdressing, clothes, day trips, outings to the theatre, aromatherapy and satellite television subscriptions (particularly for football). Some care homes used the money to decorate their room in a particular colour, or to buy furniture, in particular specialist furniture such as an electric bed or a reclining chair. Some of these services were provided routinely and occasionally care home managers described how this could cause problems as the legislation specifically rules out charging for services that other residents do not have to pay for. One home reported that they had tried pooling resources to buy a bus, but would not repeat this. There were problems with 'buying the person out' when they moved or died.
6.46 Some care homes had looked at paying for befriending schemes where people were paid either to come in to the home and spend time with the resident or, to take them out on trips. However, whilst that these might be recognised as beneficial and could improve an individual's quality of life some managers expressed concern about being able to justify using money for this. Being able to justify expenditure was another issue raised by the managers. Many had tried to put in place a range of procedures so as to prove that they had spent money wisely. One had even gone so far as to film and photograph activities.
Summary
6.47 This chapter has reported on the findings from the community sector. Our findings suggest that there is very little use of AWI Part 4 in this sector and mirror the findings in the health sector. This low level of uptake meant that few (3) of the twelve care home managers interviewed had any direct experience of using AWI Part 4 and this must be taken into account when reading the findings.
6.48 In general AWI Part 4 was seen as a necessary piece of legislation and the protection it afforded both care home staff and residents was welcomed. The potential it offered residents was also acknowledged. However, many care home managers felt that the policies and procedures around AWI Part 4 were too complex and too demanding, both in terms of time and resources, again mirroring findings from the health sector. Concern was expressed by care home managers about their ability to claim for their time from the patient's funds, confusion about what they could spend the money on and also whether this duty was part of their contractual obligations. .Managers voiced the need for more 'user friendly' information, support and training on AWI Act.
6.49 Many of the care home managers interviewed expressed concern about the level of responsibility placed on them by AWI Part 4. They did not feel they had the necessary expertise and skills to manage the clients' finances. Banks, who might have been able to offer this sort of help, were deemed to have varying levels of awareness of the legislation and as a result care home managers experienced difficulties in establishing and managing bank accounts for residents.
6.50 The role of the Care Commission as a supervisory body was also questioned, both by the Commission itself and by those in the sector.