Social workers involved in hospital discharges should be knowledgeable about the application of specific legislation in relation to their powers and duties, along with broader guidance and good practice. They should use this knowledge to aid decision making and the delivery of care which supports choice and control, wellbeing and safety for individuals and their families or carers.
Social workers should be familiar with the following key pieces of legislation.
Social Work (Scotland) Act 1968
The Social Work (Scotland) Act 1968 is the primary legislation for social work intervention in Scotland and creates the duty under section 12 to 'promote social welfare'.
Section 13ZA of the Social Work (Scotland) Act 1968
Section 13ZA of the Social Work (Scotland) Act 1968 permits local authorities to arrange the provision of community care services ‘where it has been decided that an adult’s needs call for the provision of a community care service and it appears to the local authority that the adult is incapable in relation to decisions about the service’. It states that local authorities ‘may take any steps which they consider would help the adult (with incapacity) to benefit from the service’, this would include moving an individual to a care home (residential accommodation). Involvement of a Mental Health Officer might be appropriate in cases where an individual is considered to lack capacity.
Undertaking a move under this provision should only happen if:
- there is no identified guardian or welfare attorney
- there is no application in the process of being determined for an order under the Adults with Incapacity (Scotland) Act 2000 relevant powers
- there are no objections from the individual involved or any interested party.
Any decisions taken under this section of the Act should be clear and accountable paying specific attention to the needs and past and present wishes of the individual involved. If any individual needs help to put their views across you can seek the use of an independent advocacy service. If there are specific communications issues you should get specialist advice on how best to facilitate the person to share their views.
Any moves to a care home under the provision of section 13ZA should be agreed by all professionals and carers/family members involved and not result in any restrictions of liberty for the individual. You should follow your local policy and guidance on the use of S13za.
Adults with Incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act provides a legal framework for making decisions on behalf of another person (if the individual has been assessed as lacking capacity to make such decisions). It can cover welfare, property, financial affairs and medical treatment. It recognises that, as far as possible, people should have autonomy and be able to control their own lives, and another person can only make decisions on their behalf when it is justified and necessary.
Mental Health (Care and Treatment) (Scotland) Act 2003
The Mental Health (Care and Treatment) Act sets out when and how people can be treated if they have a mental illness, learning disability or related condition (called a 'mental disorder' in the Act) and when they can be treated or taken into hospital against their will. The Act contains 10 principles and a range of safeguards (such as 'Advance Statements') to help professionals protect and promote the rights of people receiving care.
Adult Support and Protection (Scotland) Act 2007
The Adult Support and Protection (Scotland) Act 2007 aims to protect those adults who are unable to safeguard their own wellbeing, property, rights or other interests and they are at risk of harm because they are affected by disability, mental disorder, illness, physical or mental infirmity. Harm means all harm including neglect and organisational or institutional harm.
Social Care (Self-directed Support) (Scotland) Act 2013
The Social Care (Self-directed Support) (Scotland) Act 2013 requires local authorities in Scotland to offer people four choices on how they can get their social care: direct payment; person receiving services directs available support; local authority arranges support; a mix of the other options.
Human Rights Act 1998
The Human Rights Act gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights. In care settings, the Human Rights Act supports and strengthens the other Acts listed here. Everyone, wherever they live in Scotland, is entitled to have their human rights protected and as a social worker you play a key role.