Guardianships delayed by pressure on resources, says Faculty

When a guardianship order is being sought under the Adults with Incapacity (Scotland) Act 2000, notice is given to the local authority and a report by a mental health officer (MHO) is supposed to be produced within 21 days.

However, advocates practising in this area have found that it can take “a number of months” for an MHO to be appointed in a case.

“In the meantime, of course, the guardianship application is unable to progress,” said the Faculty.

The Scottish government is consulting on a report by the Scottish Law Commission on adults with incapacity, and while the emphasis is on concerns raised by the commission in relation to deprivation of liberty of people who are unable to consent to their living arrangements, views are also sought on the working of the 2000 Act.

In a response, the Faculty said: “Overall, our answer to the question of whether the 2000 Act is working effectively in safeguarding the welfare and financial affairs of people is a qualified yes.

“From members practising in this area, we are aware of severe and growing pressure on resources. This is particularly evident in relation to the time taken to appoint an MHO and to obtain MHO reports in support of guardianship applications in a number of local authority areas.”

Referring to the 21-day period, the Faculty continued: “That timescale is frequently not observed…We are aware of a number of instances where it has been a number of months before an MHO has been appointed and thereafter has reported.”

The Faculty supported the commission’s proposals in relation to potential deprivation of liberty in general hospitals, and also agreed that a process is required for authorisation of deprivation of liberty in a community setting.

The approach suggested by the commission of formulating a concept of “significant restriction of liberty” and constructing a process around that was also endorsed by the Faculty.