Created on 24 April 2015

By law, if an adult is unable to make key decisions about their own life and future, a court can appoint a ‘welfare guardian’ to do this. Amnesty International say a good test must be like the driving test

The number of orders has risen by of 9.6% in the last year making a 58% increase in the last 4 years.

Dundee, Glasgow, Stirling, Scottish Borders, South Ayrshire, and West Lothian  had the highest increases in Welfare Guardianship.

The number of people with learning disabilities under guardianship has continued to rise until it is neck and neck with dementia as the main reason for guardianship .

Cuts in budgets worry families of adults with learning disabilities and without guardianship they have no legal right to a say in the care of their loved ones.

But how do we know that guardianship is working properly?

Amnesty International have suggested a “Driving Test” model to make sure it works.  The Test must be hard enough so that some people fail.  If it was too easy, then bad drivers would be on our road.  After all, no one would want a Driving Test where the examiner just asked 3 people whether the learner could drive and took a majority vote.   Especially if some of them had a financial interest in the learner passing.

But that is exactly what happens when an application for guardianship is made.    The lawyer chooses a psychiatrist  to give their opinion of an individual  This can be done in 30 minutes and may be just 3 questions.  The psychiatrist is paid an average of £350.  On occasion fees of £700 have been paid.  A GP is asked to provide a secondary report and they get between £60 and £200 for this.

The third report from a Mental Health Officer is a statutory duty and provided at no cost.   Surprisingly the MHO report often says guardianship is not appropriate but the courts overrule it saying that majority rules and that one opposing report is not enough.

You can even hire your own psychiatrists off the internet with one company boasting that they carry out 25% of Scottish guardianships.

Some people are worried that courts treat Psychiatrists as being  unquestionable when they are really just “doctors for hire”.

One story told to us recently was about a quite able woman who is good at speaking up for herself but finds it hard to contradict her mum.  The Psychiatrist who interviewed her concluded that since she wouldn’t answer a question without first looking at her mum than she lacked capacity to make independent decisions.  A guardianship order was subsequently granted.

The lawyer also gets substantial fees and the more cases they win, then the more cases they will get.  What’s to stop lawyers choosing Psychiatrists and GPs who are more likely to agree with the granting of guardianship?

There need be no conflict between medical reports.  Lawyers don’t have to use a negative report they can just go and get another.

The Sheriff Court is meant to sort this out so we used the “Driving Test” model to see if the Sheriff Court system was providing a robust challenge.

We sampled a Sheriff Court in Central Scotland to see how many people had been turned down.

They told us that in 2014, out of 221 guardianship applications on people with learning disabilities, only 1 was refused by the Sheriff.

This is less than half of one per cent –  0.5%.

Lawyers and professional staff who know a lot about guardianship applications confirm that they don’t know of any being turned down.  Good lawyers do good work but what if not all lawyers have such high standards.

For the real driving test the fail rate is 46%.  If you want to drive you have to be checked out properly.

But maybe sheriffs are just doing their best with a bad law.   Many people think Scottish legislation is now out of step with the UN’s view on how these matters should be handled to better protect the rights of people with learning disabilities.