10 March 2015
This amendment was sought because in many cases it appeared to
be consistent with the social work priorities of the local
authority to reduce or cease supervision in some circumstances.
However, there was no legal way to do this, and no measure in place
to protect the rights of the adult on guardianship if supervision
did stop. The guardian and adult were often not involved in the
decision or told that supervision was stopping.
Those local authorities who were not complying with the
legislation, and were not allocating a supervisor in every case,
also often did not have a system in place for deciding which
guardians to supervise and which not. There was no mechanism in
place for the adults on guardianship, and their guardians, to be
allocated a supervisor if they wanted one.
Following a period of consultation with various voluntary
organisations and local authorities the Adults with Incapacity (Supervision of Welfare
Guardians etc by Local Authorities) (Scotland) Amendment
Regulations 2014 were laid before the Scottish Parliament
on the 8 May 2014 and came into force on the 9 June 2014.
In the policy note produced by the Scottish Government to
accompany the new regulations, it stated that the Mental Welfare
Commission would publish guidance to assist local authorities on
how to complete the form of notification that shall be used to vary
or cease supervision of a welfare guardian.
In particular, we thought it would be helpful to give guidance
on the circumstances it would be appropriate, with the agreement of
the guardian and adult, either to reduce the frequency of
supervision, or cease to supervise a welfare guardianship
We also thought it would be useful to consider how to ensure the
views of an adult with incapacity can be taken into account, and
what to do if there are differences of opinion between the adult,
the guardian and the local authority.
The New Regulations
The new regulations apply in particular where a guardian with
functions in relation to the personal welfare of an adult has been
appointed for a period of one year or more.
However, there are changes to what happens when a guardian has
been appointed for a period of less than one year. The local
authority must arrange for the adult, and the guardian, to be
visited within three months of the guardianship order being granted
and for the guardian to be contacted no less than three months
before the expiry of the guardianship, in order to consider renewal
and any other arrangements for the welfare of the adult. Contact
has been redefined here to include email, or telephone
Most guardians are appointed for more than a year, and as before
it is necessary in compliance with the law to supervise the adult
and the guardian:
- within three months of the guardianship order being granted
- at least once at an interval of not more than 12 months after
the order has been granted.
The new regulations:
- Increase the minimum time permitted between supervision
contacts thereafter to every 12 months (unless otherwise agreed,
- Allow that supervision would meet the requirements of the
legislation, whether the supervision contact with the guardian was
by email, telephone or a visit.
- Give flexibility to local authorities to vary the interval
between supervision contacts with the agreement of the guardian and
adult, so that it is more than every 12 months, or
- Give flexibility to local authorities to cease the supervision
arrangements with the agreement of the guardian and adult.
If the period is to be varied, or ceased, certain protective
measures have been put in place, and these are detailed in the next
section. It is worth highlighting here that if the local
authority, the guardian or the adult, wish the supervision
arrangements to resume, then they will resume, with the frequency
of at least every 12 months.
Although the regulations set out the minimum supervision contact
between the supervisor, and the adult and guardian, the frequency
of supervision should occur more regularly if the circumstances are
such that this is considered necessary.
The circumstances where supervision should be more frequent than
every 12 months are not defined, but may include:
- Where the use of powers has a significant impact on the freedom
of the adult, such as the use of seclusion or restraint (see
Commission guidelines on these 'Use of seclusion', 'Rights, risks and limits to freedom').
- Where the use of powers is contrary to the expressed wishes of
the adult, or other significant people, and is used to overcome
- Where there is significant risk to the welfare of the adult, or
other people, if the care arrangements break down.
- Where the application of the principles of the AWI Act are
complex and can be conflicting, such as the benefit to the adult
versus their past and present views.
- Where the care arrangements are complex and there are no other
care management review arrangements in place.
- Where an application has been made to the sheriff for
directions, or to recall, replace or remove the guardian, or powers
to force compliance have been sought.
It is worth noting that the regulations also changed to
establish that a welfare guardian must, on request by the local
authority, provide a report or information about the personal
welfare of the adult, the operation of the welfare guardianship,
and the use of welfare powers, as may be reasonably required (i.e.
it should avoid being a burden on the guardian). This report
could be used to help the local authority decide if supervision
frequency needed to increase again, or recommence.
Varying or Ceasing Supervision
As mentioned above the change to the Act was sought because
there was no legal way to vary, or cease supervision, even where
this seemed to be appropriate and consistent with local authority
Adults on guardianship and their guardians were not involved in
the decision and there was no mechanism in place for them to be
allocated a supervisor if they wanted one. It was important
therefore, that if supervision was to be reduced or stopped,
measures should also be put in place to protect the rights of
adults and guardians.
The new regulations set out a process for local authorities to
follow where they believe supervision of the guardian and adult
serves no continuing purpose, or where the guardianship
arrangements can be safely supervised at longer intervals than
every 12 months.
They also set out a protective mechanism to ensure that if the
local authority, the guardian or the adult believe supervision
should recommence, or increase in frequency to every 12
months again, they can order this.
Where a local authority decides in consultation with guardians
and adults, to cease, or lengthen the period of supervision visits
beyond every 12 months, it must notify the Mental Welfare
Commission in the form prescribed in the Schedule to the
Where either the adult or the guardian objects to the proposed
variation or cessation, then the arrangements shall not be varied
The form of notice requires the local authority to confirm that
the initial visit within three months of the order being granted,
and the subsequent visit within 12 months of the order being
granted, have been carried out. If either of these
supervision visits have not been carried out, then the local
authority is already in breach of its legal duty.
We would recommend that a supervision visit is carried out now
that complies with the guidance set out in the Good Practice Guide:
Supervising and supporting welfare guardians.
It should be made clear to the guardian and the adult, where this
is practicable, the legal duty of the local authority to provide
supervision, and its potential benefits.
In normal circumstances, where the initial visit and the visit
after 12 months have been carried out, it will be necessary for the
local authority to next confirm on the form that the adult and
guardian do not object to the decision to cease or vary. Where the
adult does not have capacity to understand this discussion this
should be stated. It was fully intended that should the adult
not have the capacity to take part in the decision, it would be for
the guardian and the local authority to make it in accordance with
the principles of the Act. So for instance, any previously
expressed views of the adult should be considered.
It is necessary for the supervisor to give details on the form
of the discussions that have taken place, and what has been done to
inform the adult and guardian of the decision.
Reasons should be given to justify the decision to vary or cease
supervision. The reasons may include:
- That although the guardian continues to want to hold welfare
powers they are not actively being used, or
- That the guardian has authorised a care arrangement that is now
stable and uncontroversial, or
- That the guardian has evidenced through the exercise of welfare
powers over time that they are competent to continue in the role
without further need for supervision, and/or
- That the local authority has robust alternative care management
arrangements in place that would alert the person with
responsibility for allocating supervisors to any changes or
concerns in the use of welfare powers.
The supervisor should then provide a brief description of the
current circumstances of the adult and guardian and note what, if
any, of these have changed since the application for guardianship
The local authority must confirm that they have provided
information to the adult and guardian on how they can contact the
local authority if either wishes the supervision of the
guardianship arrangements to restart.
It would be best practice to give the guardian and adult a
letter or leaflet about the process of how the decision to vary or
cease supervision has been reached, and how they can restart these
by contacting a named person within the local authority. It may be
possible in some circumstances to develop an easy read leaflet that
would make this information accessible for people with a learning
Once the form of notice to cease or vary has been completed a
copy of it should be sent by email from secure networks only, to
the Mental Welfare Commission secure email address Mwc.email@example.com.
Or by post to: The Mental Welfare Commission, Casework Manager,
Team C, Thistle House, 91 Haymarket Terrace, Edinburgh EH12