An application for a Guardianship Order becomes necessary when an individual is assessed as lacking capacity as a consequence of suffering from a diagnosed mental disorder and they do not have a Power of Attorney in existence.  To safeguard the rights of that individual at the centre of the decision making process, a legal intervention is necessary to ensure that all decisions made on behalf of the adult are in the adult’s best interest and follow the underlying principle of minimum intervention. 

We regularly provide advice and guidance to families in this area.  Very often it is families who are facing the difficult situation in which an elderly relative requires to be removed from their home so that long term care can be provided within a residential care home setting.  Another common scenario where a Guardianship Order may be necessary is when a child diagnosed with a learning disability or other mental illness is about to turn 16 and the parents (who have provided principal care to the child during their lifetime) then require this legal authority to continue making decisions and providing the necessary ongoing care to that individual. 

The Local Authority will always play some role in any Guardianship Order application.  This is due to the fact that a Mental Health Officer employed by the Local Authority requires to prepare a report (alongside two medical reports) to support any Guardianship Order being made.  Furthermore, if someone is assessed as lacking capacity and there is no suitable person (whether it be a family or friend) who is able or prepared to take on the role of Welfare Guardian, the Local Authority have an obligation to do so. 

Having sixteen years’ experience in this field we can provide expert assistance and guidance to individuals who find themselves thrown into a situation like this.  We are considerate of the fact that the individual may also be dealing with the distressing news of a family member’s recent diagnosis of an illness such as dementia. 

In relation to costs involved in making a Guardianship application, the Scottish Legal Aid Board do provide funding and we can also advise clients on that and alleviate any worry they may have in relation to expensive legal fees. 

The Act established the Mental Health Tribunal for Scotland.  Historically, if an individual suffering from a mental health disorder required to be detained in hospital for either assessment or treatment, there was a very brief hearing before a Sheriff with often very little enquiry made into the background of the detention request.  One of the main problems with this was that the person suffering from a deterioration in their mental health was often brought to a sheriff court for such a Hearing.  Understandably the process was deemed wholly unsuitable.  Since then there has been a complete shift with the creation of the Mental Health Tribunal for Scotland which ensures that more appropriate locations are provided for Hearings and puts the individual concerned at the heart of the decision making process.

The position now is that if an application is made by a psychiatrist to detain an individual for either assessment and/or treatment of a mental health disorder, a Hearing must take place before a Tribunal.  The Tribunal is made up of a legal chair, a medical member and a lay member.  This ensures that at all stages of detention enquiry is made leading to an impartial check on the decisions being made and the treatment being provided or proposed.

Our solicitors have an in-depth knowledge of this legislation having worked in this area since the inception of the Act.  We have solicitors who have provided training on the legislation to both mental health professionals and consultants over the years.  We represent individuals in a legal capacity when they wish to challenge a decision taken in relation to them either to apply for a Short Term Detention Certificate or a Compulsory Treatment Order.  We provide advice and guidance on the procedures as well as appearing on behalf of individuals at Tribunal proceedings.  We can assist in ensuring that individuals are aware of their rights to have orders reviewed at certain intervals and we can also provide this advice and guidance to family members who may wish to have their views noted and challenge any legal order being imposed on a family member.  We can provide guidance to individuals on the possible alternatives to hospital based treatment (e.g community based orders) available in certain circumstances.

This is a specialist area of law which has completely changed over the last decade.  There is now a system in place which allows for solicitors to assist individuals who previously may have felt that they had nowhere to turn when facing possible detention for a mental health related issue.  Our firm will continue to play an active role in assisting individuals who wish to be more pro-active in determining what is best for them in relation to their mental health care and treatment.

This Act created the term “additional support needs” and a major focus of the legislation was to ensure that children requiring additional support could be provided with that support within a mainstream school framework.  The Act places duties on education authorities to identify, meet and keep under review the needs of pupils for whom they are responsible.  It gives parents a number of rights including the right to access mediation, dispute resolution and refer decisions to the Additional Support Needs Tribunals for matters concerned with a co-ordinated support plan.

People who have children at school who are diagnosed with Asperger’s syndrome, ADHD, learning disability or autism will be aware of the existence of these co-ordinated support plans but are not always aware of their rights in relation to review and/or enforcement of that. 

The Additional Support Needs (ASN) Tribunal hears references from parents and young people against decisions of education authorities regarding the provision of educational support.  Children aged between 12 and 15 years who have capacity to make a reference can also do so in their own right in certain circumstances.  The Equality Act 2010 provides the right to make a claim to the ASN tribunal in respect of disability discrimination relating to pupils in school education.  The Tribunal will always wish to hear the views of the child when they are tasked with deciding on any application lodged with them.

We appreciate that for most parents and young people, dealing with schools and senior officials within the education authority can be a very daunting and sometimes intimidating prospect.  Our solicitors are experienced in this field and can provide assistance and guidance in this area of additional support needs. 

We can also provide advice and guidance in relation to placing requests where an individual feels that their child’s additional support needs cannot be met within the mainstream school setting and are seeking to place the child elsewhere. 

Over the last few years there has been a drive from various agencies, charities and health organisations to ensure that mental health and problems associated with poor mental health are recognised in the same way as any physical illness would be.  Thankfully we are now seeing a positive impact from these campaigns.  This has resulted in legal routes being opened up to allow solicitors to provide support and assistance to people who may be suffering from mental health issues. 

As the stigma surrounding mental health issues diminishes over time we are seeing more and more people able and willing to open up about the illness.  Given the nature of the work we do as local solicitors within Fife, we very often see people during very difficult periods in their lives.  The difficulties they are experiencing might arise as a consequence of a diagnosis of a mental illness or the individual may suffer from a deterioration in their mental health due to the associated stress of dealing with the legal issue which they are contacting us about. 

An integral part of the role of a solicitor is to be considerate of the circumstances in which your client finds themselves in and to provide reassurance that each individual case is not simply a number to our firm.

Over the course of this week we intend to contribute to Mental Health Awareness week by publishing a series of short blogs highlighting the main areas of mental health work which we carry out.  We will cover the topics of employment, mental health law, guardianship orders and additional support needs within education.