Adults with Incapacity Amendment Act: consultation

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.’

European Convention on Human Rights (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 dult who is subject to the guardianship.

Financial guardianships are subject to scrutiny by the Office of the Public Guardian (OPG) and welfare guardianships should be regularly reviewed by the local authority as set out in regulations. So 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 Mental Welfare Commission (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.

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

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 order as 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 Adults with Incapacity Act (AWI Act) do not appear to have been followed. We would suggest that the changes proposed to the principles of the AWI 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 Deprivation of Liberty 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.