Commentary on Sections Section 17 – Assessments under section 12A of the 1968 Act: assistance
53.Section 17 inserts section 12AZA after section 12A of the 1968 Act. It applies where the authority is assessing a person’s needs under section 12A of the 1968 Act. It is similar to, although at an earlier stage than, the duty under section 6 requiring assistance to an adult making a choice of an option for self-directed support.
54.Section 12AZA places a duty on authorities to take reasonable steps to identify and involve people to assist the individual where either it appears that because of mental disorder the supported person would benefit from assistance in relation to the carrying out of the assessment, or where it appears that because of difficulties in communicating due to physical disability the supported person would benefit from receiving assistance to communicate in relation to the carrying out of the assessment.
55.Subsection (4) places a duty on the local authority to take reasonable steps to identify people who are able to assist the supported person and, if the supported person agrees to the relevant persons providing such assistance, to involve the relevant person or persons in assisting the supported person in relation to the carrying out of the assessment or communicating in relation to it. The person or persons providing assistance may be relatives and friends of the individual but it may include other persons who can assist via what is commonly known as a “circle of support”. The requirement to have the agreement of the supported person makes it explicit on the face of the Act that section 12AZA applies only in relation to supported persons who have capacity, but due to mental disorder or difficulties in communicating, may require additional assistance in order to understand, arrive at or communicate their decisions about the options for self-directed support.
56.Subsection (3) sets out conditions which must be satisfied before subsection (4) can be applied. The duty should not be applied when there is a guardian, continuing attorney or welfare attorney with relevant powers present, or when an intervention order has been granted which relates to the provision of assistance with the assessment. Such an attorney or guardian (or individual empowered by an intervention order) would have the power to make self-directed support decisions on the adult’s behalf (in accordance with the principles of the Adults with Incapacity (Scotland) Act 2000).
57.Subsection (5) provides definitions for the various terms used in subsections (1) to (4).