Severe pressure on resources is causing lengthy delays in the appointment of guardians to people who are unable to look after their own affairs, according to the Faculty of Advocates.
Faculty has raised the issue in its response to a Scottish Government consultation on the Scottish Law Commission's report on adults with incapacity, in which views were also sought on the working of the current legislation.
The problem arises because on an application for a guardianship order 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, and the guardianship application is unable to progress in the meantime.
Faculty therefore gives a "qualified yes" to the question whether the 2000 Act is working effectively in safeguarding the welfare and financial affairs of people.
“From members practising in this area, we are aware of severe and growing pressure on resources", the response states. "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.”
Faculty supports 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, also has Faculty's backing.
It comments that the question of what constitutes a deprivation of liberty is not a straightforward one, but to think in terms of "significant restriction" may work to the advantage of the person affected, with a focus on freedom to leave premises being a correct one.