Adults with Incapacity Amendment Act: consultation

The present need to obtain two reports from a GP and a psychiatrist for a guardianship order 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 Adults with Incapacity Act (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