Young people and welfare guardianship
Introduction
In the Adults with Incapacity (Scotland) Act 2000 (the Act), welfare guardianship provides the means to protect people who lack capacity to make particular decisions or take particular actions for themselves. Its use is underpinned by a set of general principles.
These principles require that, in taking any actions under the Act:
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the adult's present and past wishes and feelings and the views of the nearest relative and primary carer of the adult are taken into account;.
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any interventions are of benefit to the adult;
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interventions are the least restrictive option in terms of the freedom of the adult;
and
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the guardian encourages the adult to exercise what skills they have to the extent possible and to help the adult develop new skills.
The Mental Welfare Commission for Scotland has a safeguarding role in relation to welfare guardianship orders. Beyond this, our responsibilities under the Mental Health (Care & Treatment) (Scotland) Act 2003 extend to all adults who have an incapacity as a result of a mental illness, learning disability or other mental disorder. We scrutinise guardianship applications, correspond with adults and their guardians and ask the guardian or local authority supervising officer advise us of any changes of individual circumstances, or concerns they might have. Where we have concerns about the welfare guardianship arrangements, we will also visit the individual concerned.
Through our monitoring and scrutiny work we have become aware of the increasing use of welfare guardianship for young people with a learning disability. The use of guardianship changed dramatically since the the 2000 Act was put in place. We have seen an increase in applications for adults under 25.
In addition to an increasing use of guardianship for younger people, we have seen orders being sought for longer, often indefinite, periods with a larger number of powers being sought and granted. Not infrequently these orders relate to young people with a mild to moderate learning disability. Where in the early years of the Act applications for young adults were mostly made by local authorities, it is now parents who are the main applicants for guardianship orders.
The issues parents face when their child with a learning disability moves from child to adult health and social care services are quite considerable. Services their child has been receiving from familiar staff are suddenly at risk. It is not always clear what will be put in place and who will step in to continue to provide this care and support. A number of important case conferences and case discussions are held during this transition period. Key decisions have to be made and actions taken by, or on behalf of, the young person that may have a long lasting impact on their health and welfare. Parents understandably may fear a loss of control.
Equally understandable, parents may not trust those in statutory services to exercise the same care and attention, based on a thorough knowledge of their child, which they had been exercising as parents. It is therefore not surprising that many parents seek welfare guardianship as a means to maintain some control and influence over important decisions and actions that have to be taken in respect of their child. While it is understandable that parents seek guardianship orders to give legal authority to their continuing parental role, the law acknowledges that as their child becomes an adult, he or she gains a new legal status with the rights that go along with this status.
Because welfare guardianship removes some of these rights, the law provides a number of safeguards. Central to these safeguards is the role of the local authority supervising officer. Over the years we have found a number of cases where we have been concerned about the quality of local authority supervision. In some cases, the statutory requirement placed upon the local authority to supervise guardians is not being carried out at all.
Through a more detailed analysis of the use of welfare guardianship for young adults we wanted to find out:
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what information private guardians are given about the role at the stage of applying to be guardians;
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how aware private guardians are of their statutory responsibilities;
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the views of private guardians about the involvement of social work in supporting them to exercise their powers;
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the preparation and support given to supervising officers and delegated guardians to enable them to act in this capacity;
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the systems in place in different authorities for appointment of supervisors/responsible officers;
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the governance arrangements in local authorities to ensure that supervisors and responsible officers are fulfilling the statutory requirement to visit the guardian and/or adult;
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the views of guardians, both private and local authority, and those of local authority supervising officers on what impact they feel they have had;
and
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the methods and standards of recording contacts/visits by local authority supervisors and responsible officers.
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