Appendix 1 Reports needed to support an application for an order
1 Medical Reports - needed for all applications
- from the adult's general practitioner (or other doctor) who will need to carry out an examination and assessment of the adult in relation to the specific areas of decision-making for which you are seeking powers;
- the other medical report, in the case where incapacity is caused by mental disorder, has to be from a relevant medical practitioner who has been approved under section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (as having special experience and qualifications in the diagnosis and treatment of mental disorder). If the person has a specialist consultant, they may be qualified to do this, so you should ask them first. If they are not able to do so then you can ask the Medical Director (at the NHS Board local to the adult) for a list of Approved Medical Practitioners.
The two doctors should examine the adult separately and complete their reports independently of each other. These have to be submitted on a prescribed form which the doctors will obtain.
Where an adult lives outwith Scotland and lacks capacity because of a mental disorder, a suitably qualified local practitioner will be able to visit and prepare the second report after discussion with an officer or Commissioner from the Mental Welfare Commission for Scotland.
2 'Suitability' Report - needed for all applications
a) Where the report is to support an application for welfare powers
The local authority has a duty to provide the suitability report for all applications for welfare powers. However, the officer responsible for doing this will depend on whether the application relates to an adult with mental disorder or an adult with severe communications problems caused by a physical condition.
- Where the adult lacks capacity as a consequence of mental disability
- a report from a Mental Health Officer is required.
- Where the adult lacks capacity as a consequence of inability to communicate due to a physical condition
- a report from the Chief Social Work Officer is required. This will be delegated to a social work officer who does not need to be a specialist in mental health.
As soon as you have decided to go ahead with the application, you should write to the Chief Social Work Officer at the local authority, with notice that you will be requesting a suitability report and asking for a contact person with whom you should discuss the timing. Under the Act, you are required to give the MHO (Mental Health Officer) or chief social work officer 21 days to prepare a report on an application for a guardianship order or Intervention Order relating to personal welfare (see more on time-table below).
b) Where the report is to support an application for financial powers only
In this case a report is required in prescribed form, based:
- on an interview and assessment of the adult by a person who has sufficient knowledge to make such a report on the appropriateness of the order sought and the suitability of the proposed guardian.
You could engage the services of an accountant to write the report, or ask a relative or friend, so long as the person has the appropriate skills, and knowledge of the circumstances. The person you ask to write the report may need some background to the Act. You could invite them to read the section below on 'content of suitability reports' and 'factors the sheriff must take into account' and/or to read the Code of Practice on Intervention Orders and Guardianship - Parts 1 and 6 obtainable from the Scottish Government (see Appendix 5).
3 Timing for reports
- In the case of all reports, the interview or examination of the adult must have taken place not more than 30 days before the application is lodged with the sheriff court.
- In certain circumstances, sheriffs have discretion to accept medical reports which are more than 30 days old.
- Under the Act, you are required to give the local authority 21 days to prepare a report on an application for an order relating to personal welfare.
- For welfare order applications, notify the local authority social work department and medical practitioners in advance to ensure they set the time aside. This will minimise the risk of any of the reports being out of date by the time you are in a position to lodge the application. If they are out of date then they will have to be carried out again. The mental health or social work officer would prefer to see the medical reports or be in contact with the doctors before completing their report.
You should also notify the person who is to provide a report in the case of an application relating solely to financial or property matters.
To note - Where any one report submitted to the sheriff, is more than 30 days old and is not accepted, it may render all the reports invalid. This means the whole process of interviews and assessments will have to be carried out again.
4 Content of the 'suitability' report
It is helpful for you, the applicant, to understand why you may be asked personal questions by the MHO or other professional responsible for carrying out the assessment of your suitability and completing the report. Sometimes this can feel like an unnecessary intrusion into your privacy, but the aim is to provide adequate information for the sheriff to make his/her decisions.
Where the application is for welfare powers, the mental health or social work officer will also interview the adult, to obtain, as far as possible, their views. The officer will also take account of the views of others with an interest in the adult.
The report must contain the social worker's conclusions on the suitability of the applicant and the appropriateness of the order applied for, and how these were reached. It should also cover any conflicts of interest identified.
The content of the report should also take into account the factors which the sheriff must consider before appointing a guardian. These factors are:
- that the person is aware of the adult's circumstances and condition and of the needs arising from such circumstances and condition;
- that the person is aware of the functions of a guardian [this would include an understanding of, and an ability to apply, the general principles];
- accessibility of the person to the adult and to his/her primary carer;
- the ability of the person to carry out the functions of a guardian;
- any likely conflict of interest between the adult and the person;
- any undue concentration of power which is likely to arise in the person over the adult;
- any adverse effects which the appointment of the person would have on the interests of the adult;
- such other matters as appear to be appropriate.
Generally, the fuller the reports received by the sheriff, and the more preparation you have done by way of applying the general principles to your application, the less likely it is that there will be complications in court. Therefore it is worth investing time in preparation as set out in the guidance above.
5 What can happen if the adult or others refuse to co-operate?
It is possible, however, in some circumstances that the adult or other people will not co-operate with your application. For example, there is no power in the Act to compel the adult to comply with an assessment of his or her capacity before you make application to the court. It may be necessary to lodge an application with imperfect reports, if, for example, access to the adult has been refused by the adult or a carer. The sheriff can then direct the adult to be assessed or interviewed and any person obstructing that requirement would be in contempt of court.
Email: Alison Mason