Section 57(3)(b) of the Adults with Incapacity (Scotland) Act 2000 requires welfare guardianship applications to be accompanied by a report in prescribed form from a mental health officer (“MHO”) (or in cases where incapacity is said to result solely from inability to communicate, the chief social work officer). During the legislative process concerns were expressed that it would be unacceptable for applicants to encounter delays in proceeding with applications because of this requirement. It was recognised that there might be workload and resource implications for MHOs and their employing authorities. It was concluded that it was clearly essential either to impose a time limit for submission of reports or to permit an alternative source of reports. The Parliament opted for a time limit. Accordingly, there was inserted in the Act a provision which had not appeared in the draft Incapable Adults Bill proposed by the Scottish Law Commission (annexed to the Commission’s Report No 151, September 1995). Section 57(4) of the Act requires applicants, other than the local authority, to give notice to the chief social work officer of intention to apply for welfare guardianship and provides that the required report “shall be prepared by the chief social work officer or, as the case may be, the mental health officer, within 21 days of the date of the notice”. That obligation is absolute. It is an essential safeguard for vulnerable people who might otherwise be left unnecessarily in inappropriate accommodation (including blocking beds in hospitals), or otherwise “in limbo” while necessary decisions in relation to their personal welfare (and, in “combined” applications, their property and financial affairs) cannot be made. Not even an interim order can be obtained until an application, accompanied by the necessary reports, has been submitted to court.

Following introduction of Part 6 of the 2000 Act with effect from 1st April 2002, failures by local authorities to comply with their statutory obligations were relatively rare, but were addressed by the courts in Frank Stork and others, 2004, SCLR 513. See also Application in respect of AD, a decision on appeal by Sheriff Principal Bowen, Glasgow Sheriff Court, 27th June 2005.

Regrettably, since then there has been a creeping disregard by local authorities of their statutory obligations, and the important human rights purpose of those obligations, by several Scottish local authorities. Some authorities have pretended that their obligation is to allocate the matter to an MHO within 21 days of intimation, rather than to produce the report within that period. Even that approach has been subject to slippage. It is reported that one authority generally regarded as amongst the most speedy in this respect nevertheless usually takes around four weeks from intimation to allocate an MHO. Another has introduced yet a further step by initially responding to intimations by advising the name of the person responsible for allocating an MHO. Thereafter, the allocation is still delayed. It is reported that one social work office makes the allocations on the first Friday of each month. Yet another local authority now appears to have standardised and institutionalised its breaches of statutory duty and of human rights by issuing in response to all intimations a standard response including the following: “Unfortunately, due to the pressure of requests for such reports and limited availability of MHOs available to take on this work, it is not possible to allocate this report request at present. We are currently operating a waiting list for allocation and unfortunately I am unable to advise you at present when it will be possible for the report to be allocated. However I anticipate this will be 10-12 weeks from the date of the request unless a review, as undernoted, indicates that the allocation should be prioritised on a risk basis.

While these intimations continue with explanations of the risk assessment process and conclude with an apology, no indication seems to have been given by this or any other authority as to the measures to be taken as a matter of urgent priority to end their failure to comply with statutory obligations and their consequent disregard of the rights, welfare and needs of vulnerable people.

In terms of human rights, the delays impact on the person’s right to a fair hearing within “a reasonable time” as directed by Article 6(1) ECHR. Moreover, during the period of delay potential deprivation of liberty situations engaging Article 5 ECHR may arise where the person is left exposed without the greater protective framework provided for under the 2000 Act.5 An individual applying for welfare guardianship in such circumstances may also have the best available knowledge of the person’s will and preferences but may be unable to ensure that these are regarded with consequences for that person’s right to private and family life (Article 8(1) ECHR).

This is not a sudden or unpredicted emergency. There has been no dramatic and unexpected rise in the number of relevant applications. Local authorities have had years within which to plan for the recruitment and training of adequate numbers of MHOs or, as an alternative, to request Scottish Government to re-consider the alternative of permitting other sources of required reports. That local authorities should presume to decide which statutory duties to perform and which to disregard is an affront to the basic principle of the rule of law, and to the Scottish Parliament. One can only sympathise with existing MHOs themselves, under-resourced and facing competing pressures.

Adrian once found it necessary to apply to a sheriff under s3(3) of the 2000 Act for a direction requiring a local authority to produce an MHO report. He intimated to the local authority that that application had been sent for warranting. Remarkably, the awaited report arrived on his desk in time to withdraw the s3(3) application before it was warranted. Even if they are impervious to other considerations, local authorities might care to consider whether it might not be a better use of resources to ensure compliance with their obligations rather than to face a stream of such s3(3) applications, each no doubt concluding for awards of expenses against the local authority.