‘Outdated’ guardianship orders risk human rights abuses, says watchdog

Thousands of vulnerable people could be having their human rights infringed, the Mental Health Commission for Scotland has warned.

The commission reports a doubling of the number of people who lack capacity being subjected to guardianship orders.

It claims the laws governing such orders are outdated and out of step with modern-day expectations of rights and anti-oppressive practice.

There were a record 20,152 individuals on the orders at the end of March this year, a 5.6 per cent rise on the previous year and more than double the number ten years ago.

In its annual monitoring report, the commission warns that the Adults with Incapacity (Scotland) Act 2000 (AWI) is “decades old and not keeping pace with human rights expectations”.

It is calling on the Scottish government to deliver on planned reforms to update the act.

Suzanne McGuinness, executive director (social work) of the Mental Welfare Commission said it was unclear what is driving the rise in orders.

But she added: “The rising number of people relying on the AWI Act means we need an up-to-date legal framework that protects their human rights and welfare. 

“The current AWI Act was groundbreaking for its time, but international human rights law has moved on. Delay is a luxury we cannot afford, and reform is needed sooner rather than later.”

Most guardianships – 76.9 per cent – were private orders granted to family or carers. 

Social worker Louise Gallacher has warned of such orders routinely being given when children with learning disabilities transition to adulthood as a “tick-box exercise”.

She said there is a danger of other less restrictive solutions being overlooked.

The most common main reason for granting a guardianship was learning disability (52 per cent) followed by dementia (33 per cent).
South Ayrshire had the highest rate per hundred thousand population and Moray the lowest.