New data shows rise in numbers of guardianship orders in Scotland

New figures published today by the Mental Welfare Commission show a continued rise in the use of guardianship orders in Scotland – up from over 6,400 people on a guardianship order in 2012, to almost 16,000 at March 2020. This is the highest figure ever recorded.

Guardianship orders are used to safeguard those who lack the capacity to make their own decisions.

The majority of guardians are private individuals, usually a relative or friend. Local authorities have a duty to make an application for welfare guardianship where it is needed and no-one else is applying.

A total of 3,199 guardianship orders were granted in the year 2019-20, a seven per cent rise on the previous year.

The majority of guardianship orders granted in 2019-20 were for people who either have a learning disability (49%), or dementia/Alzheimer’s disease (36%).

The Commission monitors the use of these orders in relation to the Adults with Incapacity Act and publishes details at national and local authority level in today’s report.

What did people think of their guardianship order?

The Commission also visits people who are on a guardianship order, and in 2019-20 met over 300 individuals. The new report contains example case studies of some visits, highlighting the views of both people subject to guardianship orders and their guardians.

In most cases people subject to a guardianship order were positive about how decisions were made on their behalf. Guardians, too, were mostly positive. In the few cases where issues were raised they mostly related to restrictions (from the individuals) or to the quality and level of care provided (from guardians).

Key gaps the commission identified

Three key gaps that the Commission itself identified during these visits include the lack of support and supervision for private guardians; only 76% had received a visit from a supervising officer in the past six months. A second concern was that only 76% had the correct medical certification from doctors for their medical treatment.  A final area of real concern was the fact that for 67% of individuals with a do-not-attempt CPR (DNACPR) form, it was either unclear if guardians had been informed, or guardians had not been informed.

Main findings 

The report’s main findings are:

• The number of guardianship orders (15,973 in year 2019-20) is the highest ever recorded, and is up from 13,501 in 2017-18 when data was last published, and up from 6,407 in 2012.
• A total of 3,199 guardianship orders were granted in the single year 2019-20, a seven per cent rise on the previous year.
• The majority of granted guardianship orders in 2019-20 (74%) were private, from relatives or friends, which is similar to the last five years of reporting. The remainder were from local authorities.
• Almost half (46%) of guardianship orders granted last year were for a period of five years or less, while 47% were more than five years and 7% were indefinite orders. The proportion of orders granted that are indefinite has declined steadily over time.
• There has been a marked decline in indefinite guardianship orders, from 48% in 2010-11 to 2% in 2019-20.
• The lowest rate of guardianship orders granted last year was in Inverclyde, and highest in South Ayrshire. 

Julie Paterson, chief executive, Mental Welfare Commission, said:

"Guardianship orders are designed to protect some of the most vulnerable people in our society. This new report includes a detailed statistical breakdown of what’s happening in relation to guardianship orders across Scotland, and also the views of people who are living with these orders - both individuals and their guardians.
"In previous years we have said that we believe the law needs to be modernised and streamlined to ensure care can be provided when it is needed, and to better protect the rights of people with dementia and learning disabilities. We welcome the commitment of the Scottish Government to reforming the Adults with Incapacity Act, which will be considered alongside the review of the Mental Health Act. 
“Meantime, we hope that local authorities, integration joint boards, health and social care partnerships and others find the information in this report valuable as they plan and operate their services. We particularly ask that the issues we raise in relation to findings on our visits are addressed.”

Notes to editors

The Mental Welfare Commission monitors the use of legislation related to welfare provision and parts of the law related to medical consent and research.
The Commission also publishes advice and good practice guidance on the operation of the legislation.

Indefinite guardianships are those that do not have an expiry date. The Commission has always suggested that orders be time-limited, especially for young people where circumstances may change. Indefinite guardianships should be reviewed regularly, in keeping with both the principles of the Act and the code of practice.