Mental Welfare Commission "concerned" at rise in guardianship

Concerns have been expressed today by the Mental Welfare Commission at the continued rise in the use of guardianship orders in Scotland.

A report published today by the body responsible for safeguarding the rights of people with mental disabilities charts the rise over the past decade in particular in welfare guardianship orders, used to safeguard those who lack the capacity to make their own decisions. The Commission calls for the streamlining of the law to make it less resource-intensive and to ensure care can be provided when it is needed.

The main findings of the 2017-18 statistical monitoring report for the Adults with Incapacity (Scotland) Act 2000 are:

• The number of existing guardianship orders (13,501) has risen again, and is up by 12% since 2016-17 (12,082).
• The number of new welfare guardianship applications granted also continues to rise. In 2017-18 there were 3,084 applications granted across Scotland, a 5% rise since 2016-17 and a 149% increase in the 10 years since 2008-09.
• Private applications represented 74% of all applications. The total number of private applications is up 4% this year, and 165% since 2008-09.
• Local authority applications are up 10% to 792, and account for 26% of total applications.
• A fifth (21%) of welfare guardianship applications granted this year are for people in the 16-24 age group with learning disability.
• Although the number of indefinite guardianship orders has decreased, there are 4,990 indefinite orders as of 31 March 2018, or 37% of total active guardianships.

The Commission comments that the rise in private applications "places local authorities under increased pressure to fulfil their statutory duties to provide reports for applicants. Local authorities have no control over this demand-led system".

However it does not generally favour the use of indefinite orders, except perhaps in the case of an elderly person with advanced dementia. "Otherwise we believe it is not good practice or consistent with the principles of the legislation... European case law makes clear the need for regular review."

Today's report shows quite wide variations in the use of welfare guardianships by Scotland's local authorities, with South Ayrshire making more than three times as many applications per 100,000 of population as Aberdeen, Edinburgh, Orkney or Shetland. It comments that all authorities have shown considerable variation over the past 10 years, though some have consistently been above or below the average.

Of the total guardianships in Scotland, the majority are for people who either have learning disability (45%) or dementia/Alzheimer's disease (41%).

Mike Diamond, executive director (social work) at the Mental Welfare Commission, commented: "The continued steep rise in guardianship applications is concerning. Most relatives find guardianship helpful, but it is a complex legal process and takes up a considerable amount of time for care professionals, particularly mental health officers. Sometimes it is required to allow people to access self-directed support, which gives greater control over their own care to people who receive services.

"We believe the law needs to be modernised and streamlined to ensure care can be provided when it is needed, and to better protect the rights of people with dementia and learning disabilities. We welcome the commitment of the Scottish Government to reforming the Adults with Incapacity Act, and look forward to working with them on this in the coming year."

Click here to view the report.