Rising numbers of guardianship orders in Scotland slowed by the pandemic

New figures published today show that the year-on-year increase in people subject to a guardianship order in Scotland was significantly slowed by ‘stop the clock’ legal changes made in response to the pandemic in 2020-21.

These orders are made when a person lacks capacity to take decisions for themselves, and decision-making authority for that person is given to a relative or local authority. It is most commonly used for people with learning disabilities or those with dementia.

In April 2020 the government introduced new emergency legislation as part of the Coronavirus (Scotland) Act that meant the time for existing guardianship orders to expire was paused. This dealt with the issue of possible expiry of guardianships before a renewal application could be lodged at court.

The Mental Welfare Commission, which publishes data on welfare guardianship orders every year, said the impact of this is seen in the data – in 2020-21 a total of 2,194 guardianship orders were granted, which was 30% fewer than in 2019-20. Before this, there had been a consistent year-on-year rise, averaging at 12% a year.

There was nevertheless still a very slight increase in overall numbers, with 16,033 people subject to a guardianship order on 31 March 2021, compared to 15,973 on 31 March 2020. This would have been expected to be significantly higher had the law not changed.

Suzanne McGuinness, Executive Director for Social Work at the Mental Welfare Commission, said: “The Coronavirus (Scotland) Act 2020 introduced ‘stop the clock provisions’ to delay the expiry of section 47 certificates and guardianship orders for those people already known to services and protected by adults with incapacity legislation.

“Renewal rates for guardianship orders significantly reduced, as expected, as a result.

“We understand why this happened, and agree it was done to ensure that this vulnerable group of people was protected by the law, no matter the pressure on the court system during lock down. This Coronavirus legislation was suspended in September 2020, and normal timescales and processes were reintroduced.

“With services remobilising, and with a return to as close to ‘business as usual’ as possible, there is a need for closer monitoring by local authorities and health authorities, as well as by the Commission, to ensure that the ‘stop the clock’ impact is an exceptional circumstance which we do not anticipate seeing in future.

“This is important because – although we believe that for the longer term, changes to the law could reduce the constant rise in numbers – while the law remains as it is, those rising figures reflected the growing need for protection under the law for this vulnerable group.

“Those who lack capacity because of mental illness, learning disability, dementia and related conditions are some of the most vulnerable adults in our community and have a right to be protected by the law.”

Of all granted guardianship orders, 91% were new orders compared to 78% in 2019-20. This increase follows from a consistent downward trend in new orders since 2011-12.

Private guardians (meaning relatives or carers as opposed to local authorities) accounted for 72% of all guardianships granted, which was similar to previous years.

The most common primary diagnosis was learning disability (47%), followed by dementia (38%).

Most of the granted orders were for a period of five years or less (77%), while 17% were for six years or longer, and 5% were indefinite orders.

“Amongst all of the data we publish today we note the continued decline in indefinite guardianship orders, which are orders granted without an expiry date,” McGuiness added. “We welcome that decline, which is driven by fewer people with learning disability being granted an indefinite guardianship order - from 27% in 2011-12 to only one per cent last year. Indefinite orders do not allow for judicial oversight or improvements in capacity, and should only be used in very specific circumstances, such as where a person has advanced dementia.”