mwcScotlandThe use of legislation to safeguard people who lack the capacity to make their own decisions has continued to rise over the past year, including a 15% rise in guardianship orders, new figures have revealed.

Figures from the Mental Welfare Commission found that the number of new guardianship applications granted rose by 8% to 2,657 in 2015/16. This represents a 99% increase since 2009/10. The number of guardianship orders has risen by 15% since the previous year, to 10,735.

The Commission monitors the use of welfare provisions of the Adults with Incapacity Act, and publishes an annual report on this data. The report includes information on the use of welfare guardianships and intervention orders across all of Scotland's local authorities. 

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

In addition, 74% of guardianship order applications were from private individuals, an increase of 5% on the previous year, and of 117% since 2009/10. The remainder of applications were from local authorities, an increase of 17% on the previous year and of 60% since 2009/10.

The highest proportion of welfare guardianships were sought for people who had dementia (45%) or learning disabilities (41%).

Data released in England and Wales this week also show that use of the equivalent legislation there, the Deprivation of Liberty Safeguards, had also risen in the past year.

Mike Diamond, executive director (social work) of the Mental Welfare Commission, said: "The continued steep rise in guardianship applications is concerning. Most relatives find guardianship helpful, but it is a complex legal process, and takes up a considerable amount of time for care professionals, particularly mental health officers. Sometimes it is required to allow people to access Self Directed Support, which gives greater control over their own care to people who receive services. 

“Recent court cases have also led to uncertainty about when legal measures are needed to place someone in a care home if they are not able to agree to the move. 

“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 in their draft mental health strategy to a review of the law, and we hope to see early progress.”