Adults with Incapacity Amendment Act: consultation

Part 6: Guardianships

There has been dissatisfaction with the present guardianship system, dating back to the Public Guardian’s paper on graded guardianship in 2011^[47] . Concerns related to the pressures on the system leading to lengthy delays in getting a guardianship order. This resulted in delays in discharging people, often elderly, from hospital beds, with consequent deterioration in their condition.

We consulted on guardianship changes in 2018^[48], publishing our summary and analysis shortly after^[49]. The graded guardianship model reflected the aspiration to have a more flexible system, giving preference to the rights, will and preference of the adult in line with the UNCRPD.

However, feedback was that the proposed model did not achieve those aspirations. The consultation proposals were too wide ranging and risked creating more complex systems than before.

Since 2018, the pressures on the system have increased. At the same time there has been criticism that the AWI Act contains no emergency or urgent order provision. Taking this into account, in 2021 we undertook stakeholder engagement on a proposed AWI emergency or urgent order, to sit separately from the guardianship system.

The outcome of this work was that it was clear that such an order had to be integrated with the guardianship system. Many of the powers proposed related to further social care and therefore required a guardianship order for ongoing powers after the urgent order. Having two separate orders did not work. This consultation therefore proposes using an amended interim guardianship in cases of urgency.

Aside from the ideas we are consulting on here, there are numerous, technical changes to the AWI Act that we intend to take forward without consultation. They will result in more efficient use of the AWI Act and have been proposed by the Public Guardian and Law Society, with the majority also put forward by the SMHLR^[50] .

We recognise that in the longer term the SMHLR recommends that there is a framework in place that ensures the will and preferences of the adult are first and foremost. This includes moving away from guardianships altogether, with a model of a decision making representative instead.

“The Decision Making Representative must act within the framework of Supported decision making and respecting the Autonomous decision making test (see Chapters 4 and 8 of the SMHLR respectively) and, where it is applicable, ensure the person’s human rights are enabled, in line with the Human Rights Enablement (see Chapter 8)”^[51].

Such a significant proposal for change takes time to consider and evaluate and may form part of a wider reform of mental health and incapacity law. In the short term we are taking a step towards this by ensuring that priority is given to the adult’s will and preferences in the principles of the AWI Act, ahead of the other principles as set out in Part One of this consultation.

Guardianship law as it stands (sections 57-79A)

Presently, guardianship cases are decided by the Sheriff Court which is most local to where the adult lives. Guardians are appointed by the Sheriff.

An application to court is generally made by a solicitor who will ask the Sheriff to appoint the guardian(s), listing the welfare and financial powers which are requested. The application will give a brief background of the adult and the reasons for the guardian’s appointment. It will also list any interested parties, in order that the Sheriff can instruct that they are sent a copy of the application.

The application has to contain certain reports as follows:

• A report from a registered medical practitioner, generally the adult’s GP, from an examination carried out not more than 30 days before the lodging of the application. This should state that the adult is incapacitated in relation to the powers sought.
• A report from a doctor who has specialist experience in the diagnosis and treatment of mental disorder (where the incapacity is by reason of mental disorder), often a psychiatrist. Again, the examination has to be carried out not more than 30 days before the lodging of the application and it should state that the adult is incapacitated in relation to the powers sought.
• Where the application relates to the personal welfare of the adult, a report from a Mental Health Officer containing their opinion as to the appropriateness of the order sought. This will be based on an interview and assessment of the adult carried out no more than 30 days before the application is lodged. It will also contain their opinion on the suitability of the nominated individual to be guardian. In coming to their views, the Mental Health Officer will consider each of the principles of the AWI Act and seek out the views of the adult and interested parties.
• Where the application relates only to the property and financial affairs of the adult, then a report from a person who has sufficient knowledge to make such a report is required. This will follow the same format and have the same requirements as the Mental Health Officer report.

Once the application is received at court, it will then be sent back to the applicant with a court hearing date and an instruction from the Sheriff to send the application to interested parties, allowing them a reasonable time to respond before the hearing is due.

All interested parties can attend the hearing and have their say on the application. The Sheriff can continue the matter to another hearing for a number of reasons. These include ensuring all interested parties have received the application and had enough time to respond and to receive any further reports.

Once the Sheriff grants the guardianship, they inform the applicant and OPG of the powers granted. If there are financial matters the Sheriff may well have set an amount of caution that the guardian has to find before acting. This is an insurance bond to protect the adult against misuse of their funds. Once the guardian has found caution (if so required) then OPG will issue them with their certificate of appointment. If no caution is required, then OPG will issue the certificate of appointment on receipt of the order from the Sheriff.

Renewal of guardianship requires a further summary court application, including one medical report and appropriate Mental Health Officer and/or Public Guardian’s report.

Our proposals

Medical reports

The need to obtain two reports from a GP and a psychiatrist, can result in delays in the application. Incapacity reports are not included in the GP contract and GPs are not obliged to carry them out. Where they do so they are entitled to charge for their services. GPs are not experts in incapacity assessments, so may not feel confident, or may refuse because of the volume of their existing work.

There are fewer psychiatrists, but they are experts at assessing incapacity where it results from mental disorder. It is generally part of their contract to complete incapacity reports. Even so, ideally the person completing the report should know the adult and psychiatrists may refuse if they are not familiar with the adult.

Given this difficulty we are considering reducing the number of medical reports required from two to one for guardianship applications, including interim applications. On balance we think that, in considering who should complete a single report where incapacity is by reason of mental disorder, the wider option of either a GP or a psychiatrist would be preferable. This pragmatically recognises the difficulty in getting these reports and also that one of the professionals may not be comfortable in providing a report for a particular patient. Where incapacity is by reason of inability to communicate because of physical disability we suggest that the single report should come from a GP. The vast majority of cases of incapacity under the AWI Act relate to mental disorder.

In reducing the requirement to one report, we are very conscious that this report needs to meet the needs of the case and provide sufficient information to enable the sheriff to make a decision. Clear guidance will set out what is required of the report, including the need to adhere to the principles of the AWI Act. If the sheriff is not happy with a report, there will be the option to request an additional report but we would hope, with appropriate guidance, a single report will provide adequate information in the majority of cases.

We are also proposing that clinical psychologists may be added as a third category of professional who can complete incapacity assessments for guardianship cases where incapacity is by reason of mental disorder. We think, given that the requirement is to assess incapacity, rather than diagnosing the mental disorder causing the incapacity, the skills and knowledge of a clinical psychologist would be of the appropriate level to assess incapacity by reason of mental disorder for the purposes of a guardianship order

Question:

49. Do you think the requirement for medical reports for guardianship order should change to a single medical report?

50. Do you agree with our suggestion that clinical psychologists should be added to the category of professional who can provide these reports (where the incapacity arises by reason of mental disorder)?

Mental Health Officer Reports

We know that delays in the obtaining of a guardianship result from an accumulation of delays in a number of different areas. One of the areas that has been brought up in the past is the Mental Health Officer report.

Recent Public Health Scotland statistics show that allocation of and completion of reports by Mental Health Officers is one of the biggest causes of delay in obtaining a guardianship order. There are numerous reasons behind this, one of which is the lack of Mental Health Officers.

The requirements of the Mental Health Officer report for a guardianship application are in regulations^[52]. The Mental Health Officer has to consider each principle of the AWI Act which includes taking account of the views of the nearest relative and any person who may have an interest in the adult. We have been told that there can be delays where the Mental Health Officer tries to track down the opinions of every possible relative. We are considering whether the Mental Health Officer form for guardianship applications could be improved to make it more concise, whilst retaining the requisite information and would appreciate your views on this.

Questions:

51. Do you think the Mental Health Officer form for guardianships can be improved, to make it more concise whilst retaining the same information?

Person with sufficient knowledge reports for guardianship relating to property and financial affairs

This report has a wide qualification criteria for who can complete the report. Any person who has sufficient knowledge to complete the report^[53] can do so, although they have to explain why.

The format of this report is the same as the Mental Health Officer report, so we are considering whether the same information can be provide in a more concise manner.

In addition, we have been told that the ‘person with sufficient knowledge’ report often is seen of little value. This is both because of the lack of detail but also because of the qualifications of the person completing the report. It may be a social worker, or it could be a friend or family member of the adult. We are interested in your views on whether this needs to change.

The first part of the report is a comment on the appropriateness of the order. The person with sufficient knowledge is required to state if the order will benefit the adult, if it is the least restrictive option , the wishes and feelings of the adult and the views of the nearest relative, primary carer, named person, guardian and relevant person(s). We would like to hear your views on whether the ‘person with sufficient knowledge of the adult ‘ should remain as the author of the report for a financial and property guardianship.

The second part of the report relates to the proposed guardian’s suitability. OPG have in recent times introduced a guardian’s declaration form^[54] informally into proceedings.

This was introduced following the experience of OPG of the performance and preparedness of financial guardians once they had been appointed. Often OPG have found that appointed guardians had little or no knowledge of the reporting duties they were required to undertake as supervised by OPG.

Both the OPG form and the ‘person with sufficient knowledge’ form cover the proposed guardian’s suitability. The OPG form requires a lot more detailed financial information than the second part of the ‘person with sufficient knowledge’ form. We think this information is more appropriately collected by OPG, who then provide a copy of the report to the court, with their own comments on the guardian’s suitability attached. This allows the sheriff to consider suitability and the OPG comments before appointment.

We therefore propose that the second part of the ‘person with sufficient knowledge’ report is no longer required. Instead we propose that in the same way an applicant has to give notice to the chief social work officer of their intention to make an application for guardianship with welfare powers ^[55]notice should be given to the Public Guardian for an application including financial powers. Following this the applicant will be required to complete and send the guardian declaration form to OPG. OPG will then submit this to court along with any comments on the suitability of both the guardian and the application.

Questions:

52. Do you think the ‘person with sufficient knowledge’ form can be improved, making it more concise whilst retaining the same information?

53. Should the person with sufficient knowledge continue to be the person who prepares the report for financial and property guardianship?

54. Do you agree with our proposal to replace the second part of the ‘person with sufficient knowledge’ report with a statutory requirement to complete the OPG guardian declaration form?

Sheriff discretion to consider MHO reports outwith 30 days limit

At present the sheriff has discretion to consider an application if the medical reports are out with the 30 day limit. This is only if the sheriff is satisfied there has been no change in circumstance since the examination and assessment was carried out^[56].

We think the same discretion should be afforded to the sheriff in the case of Mental Health Officer reports. Presently we know of occasions when a report is just over the 30 day limit, with no change of circumstance. But the rigidity of the legislation requires a whole new report to be compiled, with the accompanying delay.

Question:

55. Should sheriffs be afforded the same discretion with Mental Health Officer report timings as they are with medical reports?

Amendment of interim guardianship order for urgent cases

As mentioned above, there has long been a call for some type of ‘urgent’, ‘emergency’ or ‘short term placement’ order. We consulted in 2018 in chapter 10 of our consultation on the idea of a short term placement order^[57]. Our analysis of the responses showed that out of 104 responses, 95 were in agreement with the proposal for a short term placement order and 9 were against. However the views of those who agreed were caveated with concerns around safeguarding and a need for more detail to be added.

We considered this proposal in more detail in 2021, with a stakeholder working group going into considerable detail. A variety of stand-alone (from guardianship) models were developed as the working group considered the issue. At the end the working group were of the view that a bespoke order was not compatible with the guardianship process.

Welfare guardianship orders invariably involve social care powers and are therefore ongoing, rather than time limited or one off powers. This makes them more suitable to guardianship orders. That meant that a separate, bespoke, short term placement type of order would always have to be followed up by a guardianship order, bringing potential for a gap in the orders, or a situation where the bespoke order might take longer than the guardianship order (on appeal for instance). Therefore it made more sense to focus attention on using the interim guardianship system.

At the moment a full guardianship order application is required in order for interim powers to be asked for. We propose that the AWI Act be amended so that an interim guardianship can be applied for separately and used swiftly where an urgent order is required, for instance where there is a need to move someone due to an imminent risk to their welfare.

An application for interim guardianship may be made to the sheriff court. A single medical report will be required. It will require an abbreviated MHO report, that will report only on the appropriateness of interim powers. This report will however still require to demonstrate the principles have been adhered to – in line with Part one proposals. Given the abbreviated nature of the report, we suggest that rather than a requirement to prepare this report within 21 days the requirement should be that it is prepared within seven days of notice being given to the local authority by the applicant. If a full guardianship order is considered necessary, the full report can be submitted to court in the usual timescale, with a hearing be scheduled on receipt of the full report.

We propose there should be a timescale of 5 calendar days, once the application is received by the court , for the sheriff to make a decision on the interim powers. We do not propose any change to length of time the interim powers can be sought for. At present interim powers can be sought for 3 months beginning with the date of appointment, with flexibility allowed to the sheriff to appoint for a longer period not exceeding 6 months. We recommend these timings remain.

Questions:

56. Do you agree that the best approach to cater for urgent situations is to amend the existing interim guardianship orders?

57. Do you agree that an abbreviated mental health officer report together with a single medical report should suffice for a guardianship order to be accepted by the court ?

58. Do you agree that there should be a short statutory timescale for the court to consider urgent interim applications of this sort?

Variation of guardianship order to add financial or welfare powers

There may be situations where a guardian has been appointed with only financial powers and circumstances change so that welfare powers need to be added or vice versa.

At present the AWI Act requires that in both the above cases, a whole new application is required. That means a new summary application, two new medical reports and either a mental health officer report or a ‘person with sufficient knowledge’ report. This, as we know, will be very time consuming. Very often it will be well established that the adult lacks capacity by reason of the existing guardianship order, meaning that two new medical reports may not be necessary.

We think a more efficient way would be to require only the additional mental health officer report, or ‘person with sufficient knowledge’ report together with the OPG guardian declaration form, to be required. The sheriff can ask for more medical reports if required, but they should not be mandatory.

Question:

59. Do you agree that further medical reports are not required when varying a guardianship to add either welfare or financial powers?

Length of Guardianship orders

At present, an initial guardianship order can be made for 3 years, which can be increased to 5 years on renewal. However the Sheriff has discretion to appoint a guardian for ‘such other period , including an indefinite period as, on cause shown, he may determine..’^[58]

ECHR case law makes clear that there is a need for regular review of any restriction of a person’s liberty and whilst guardianships do not necessarily restrict a person’s liberty in all cases, they do by their very nature significantly impact on the adult who is subject to the guardianship.

Financial guardianships are subject to scrutiny by the OPG and welfare guardianships should be regularly reviewed by the local authority as set out in regulations^[59]. Time limited guardianships should be subject to regular review by the Sheriff Court and either the OPG or local authorities, or both, depending on the type of guardianship.

Indefinite guardianships should be subject to regular review by OPG and/or local authorities, again depending on the type of guardianship. The MWC has stated that in certain specific cases, such as an elderly person with advanced dementia, indefinite orders are appropriate but such cases are limited.

In the majority of cases, periodical judicial scrutiny of orders should be the norm, as it removes the onus from the adult or another party to challenge the order if circumstances change. It should be noted however that the frequency of indefinite guardianship orders has reduced substantially in recent years, from 32% of orders in 2013-14 to 3.8% in 2022-23.^[60]

However despite these safeguards, the review of guardianship orders has been criticised in a number of cases, in particular Aberdeenshire Council v SF^[61] .

This case concerned a guardianship order in respect of an adult living in support accommodation in England but habitually resident in Scotland. The placement constituted a DOL which was ostensibly authorised by the guardianship order. The case was before Poole J, to seek recognition and enforcement of the guardianship order. The Court was required to conduct a limited review of the case.

Due to lack of evidence that the adult in question had been given an opportunity to give views to the court, and the wide powers given the guardian, namely that the order was proposed to be indefinite and was made for 7 years, the court did not recognise and enforce the particular guardianship order in this case. It stated to do so would be contrary to a mandatory provision of the law of England and Wales as it would breach article 5(4) of ECHR and therefore the Human Rights Act 1998. In his conclusion Poole J stated :

“Natural justice required that in a case where SF’s liberty was being put into the hands of others for a period of seven years, she should have had an opportunity to be heard and/or an opportunity to be represented. SF’s access to the court should not have been dependent on her taking the initiative. Effective access should have been secured for her. As it is, there were no measures taken to ensure that her Art 5(1) rights were upheld”

It is of concern that in this case the principles of the AWI Act do not appear to have been followed. We would suggest that the changes proposed to the principles of the Act, set out in part one of this consultation should eliminate the possibility of the adult not being given an opportunity in the future to express their views to the court. However this does not address the question of the length of the guardianship order.

In this case an adult was placed under a guardianship order for 7 years, in circumstances that are quite different to those considered acceptable for indefinite guardianships by the MWC, such as elderly adults with advanced dementia. In light of this we wonder whether therefore we need to revisit the approach to length of guardianships generally.

In the next part of this consultation chapter we set out our approach to DOL and suggest time limits for guardianships which authorise deprivation of an adult’s liberty.

But we would also be grateful for views on whether we need to change the current approach to length of guardianship orders more generally, and in particular if there is a need to remove discretion from the sheriff to grant an indefinite guardianship order.

In doing so, we need to consider the application of the AWI Act principles, namely whether in every case there will be a benefit to the adult in requiring them to go through the renewal procedure. And if we do continue with the sheriff’s discretion to grant an indefinite guardianship, what safeguards would need to be put in place to ensure regular reviews take place and account can be taken of changes in circumstances.

Question

60. Does the current approach to length of guardianship orders provide sufficient safeguards for the adult?

61. Do changes require to be made to ensure an appropriate level of scrutiny for each guardianship order?

62. Is there a need to remove discretion from the sheriff to grant indefinite guardianships?

63. If you consider changes are necessary, what do you suggest they would be?

Adding additional exclusions to AWI Act

The AWI Act presently states that there are some things that a guardian or an attorney may not do. They are very limited lists of powers and are identical for guardians and attorneys. There is no equivalent list for interveners.

At the moment the following powers are excluded from guardians and attorneys in the AWI Act:^[62]

• Place the adult in a hospital for the treatment of mental disorder against their will;
• Consent on behalf of the adult to any form of treatment in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2);
• Make, on behalf of the adult, a request under section 4(1) of the Anatomy Act 1984 (c. 14);
• Give, on behalf of the adult, an authorisation under, or by virtue of, section 6(1), 16F(1)(a),17, 29(1) or 42(1) of the Human Tissue)Scotland) Act 2006 (asp 4);
• Withdraw an authorisation, on behalf of the adult, by virtue of section 6A(1) of that Act;
• Make, on behalf of the adult, an opt-out declaration by virtue of section 6B(1) of that Act;
• Withdraw an opt-out declaration, on behalf of the adult, by virtue of section 6C(1) of that Act; or
• Make, on behalf of the adult, a nomination under section 30(1) of that Act

Over the past 20 years in the operation of the AWI Act, it has become clear that it would be helpful to add to this list of exclusions to clarify the roles and responsibilities of guardians and attorneys.

Question

64. We propose that the following powers should be added to the list of actions that guardians, attorneys and interveners should be expressly excluded from. Do you agree?

• consenting to marriage or a civil partnership,
• consenting to have sexual relations,
• consenting to a decree of divorce
• consenting to a dissolution order being made in relation to a civil partnership
• consenting to a child being placed for adoption by an adoption agency,
• consenting to the making of an adoption order,
• voting at an election for any public office, or at a referendum
• making a will
• if the adult is a trustee, executor or company director, carrying discretionary functions on behalf of them,
• giving evidence in the form of a sworn affidavit

65. Are there any other powers you think should be added to a list of exclusion?