Adults with Incapacity Amendment Act: consultation

The proposals contained within this consultation aim to streamline and improve the Adults with Incapacity Act (AWI Act), enhance the rights of incapable adults and address the challenges around deprivation of liberty for incapable adults.

We know that nearly 20% of all delayed discharges are people in hospital settings, recorded as being adults with incapacity. These can be in-patients for planned care such as a hip replacement, or as an emergency through Accident and Emergency.

Clinicians will ensure that they receive the most appropriate care to support them to become clinically fit to be discharged. If someone is deemed not to have the capacity to make decisions on their own, as to the care and support needed at this stage and in particular where they might live, provisions under the AWI Act can be used.

Some patients will have made provision for this kind of situation by granting power of attorney to a friend or relative to make decisions on their behalf. However, if no such provision is in place, or the power of attorney does not give authority for the set of circumstances the adult is faced with, and the adult even with support is unable to make decisions for themselves, a welfare guardianship may be required. This process can take time, as it rightly ensures that the rights of the individual are fully protected.

This accounts for nearly 400 people each week who, despite no longer needing  hospital care, are currently staying in that hospital rather than in a setting that would be more appropriate. In many circumstances  this is not the least restrictive option to meet their health and care needs. Within the hospital setting, people are often disconnected from their families, friends and social connections which impacts on their rights to respect for private and family life.

Of particular concern is the duration of discharge delay for those that are classified as AWI-related delays. Compared to ‘standard delays,’ whose average length of delay is 16 days, we know that this increases to 66 days for AWI.

Part 2 of this consultation set out proposals for change to powers of attorney,  part 6 of the consultation sets out proposals for change to guardianship orders, and later in part 7 of the consultation, we have set out the suite of options proposed to address the challenges around deprivation of liberty and incapable adults.

We are very interested to hear your views on whether there are additional steps that could be implemented to ensure those individuals, who are a delayed discharge from hospital and who are currently going through the guardianship process, could be moved out of an acute setting and into a more appropriate care setting. An example would be a care home, that better meets their needs, while ensuring their rights are safeguarded.  

We are also interested in your views on using different care settings, out with the NHS, for those who no longer need acute hospital care but for whom the guardianship process has not yet concluded.