The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008

Scottish Statutory Instruments

2008 No. 55

ADULTS WITH INCAPACITY

The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008

Made

20th February 2008

Laid before the Scottish Parliament

21st February 2008

Coming into force

1st April 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 57(3), 60(3) and 86(2) of the Adults with Incapacity (Scotland) Act 2000(1) and all other powers enabling them to do so.

Citation and commencement

1.  These Regulations may be cited as the Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Amendment Regulations 2008 and come into force on 1st April 2008.

Amendment of the Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Regulations 2002

2.—(1) The Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Regulations 2002(2) are amended as follows.

(2) In regulation 3 after “section 57(3)(a)” insert “, or, as the case may be, section 60(3)(a)(3),”.

(3) In regulation 4 substitute for “in relation to an application for” with “in respect of applications for a category (a) or (c) order below, or by a mental health officer under section 60(3)(b) in respect of an application for a category (b) order below”.

(4) In regulation 5 substitute for “in relation to an application for” with “in respect of applications for a category (a) or (c) order below, or under section 60(3)(b) in respect of an application for a category (b) order below”.

(5) In regulation 6 substitute for “in relation to an application for” with “in respect of applications for a category (a) or (c) order below, or by the Public Guardian under section 60 (3)(c) in respect of an application for a category (b) order below”.

(6) In Schedule 1–

(a) for “section 57(3)(a)” where it first appears substitute “sections 57(3)(a) and 60(3)(a)”;

(b) for Part A substitute Schedule 1 to these Regulations;

(c) in Part C for the footnote for “mental disorder” substitute:–

• “mental disorder has the meaning given to it in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003, namely that it means any mental illness; personality disorder or learning disability however caused or manifested, but an adult is not mentally disordered by reason only of sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on, or use of, alcohol or drugs; behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; or acting as no prudent person would act.”; and

(d) in the last sentence of Part C after “primary carer” insert “named person”.

(7) In Schedules 2, 4, 5, 7, 8 and 10 in Parts D after paragraph 5 insert the text in Schedule 2 to these Regulations as paragraph 5A(4).

(8) For Schedule 3 substitute Schedule 3 to these Regulations.

(9) For Schedule 6 substitute Schedule 4 to these Regulations.

(10) For Schedule 9 substitute Schedule 5 to these Regulations.

FERGUS EWING

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

20th February 2008

Regulation 2(6)(b)

SCHEDULE 1

Regulation 2(7)

SCHEDULE 2

Regulation 2(8)

SCHEDULE 3

Regulation 4(b)

SCHEDULE 3

Regulation 2(9)

SCHEDULE 4

Regulation 5(b)

SCHEDULE 6

Regulation 2(10)

SCHEDULE 5

Regulation 6(b)

SCHEDULE 9

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Regulations 2002 (“the 2002 Regulations”) and are in consequence of the commencement of section 60 of the Adult Support and Protection (Scotland) Act 2007 (asp 10) (“the 2007 Act”) which amends the provisions on guardianship orders in Part 6 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (“the Act”).

The amendments in paragraphs (2) to (6)(a) of regulation 2 reflect the new sub section (3) in section 60 of the Act substituted by section 60(3) of the 2007 Act which provides for a simplified procedure for renewal of guardianship orders.

Regulation 2(6)(b) substitutes new Parts A1 and A2 in Schedule 1 to reflect the new sub-section (6B) of section 57 of the Act inserted by section 60(1)(b) of the 2007 Act, namely to provide for medical examinations to be carried out outwith Scotland.

Regulation 2(6)(c) substitutes an updated footnote for the definition of “mental disorder”.

Regulation 2(6)(d) inserts reference to the adult’s “named person” in the list of people that a medical practitioner may consult when forming his or her opinion as to the adult’s capacity.

Regulation 2(7) also inserts a new part in the forms in Schedule 2, 4, 5, 7, 8 and 10 requiring the applicant to obtain the views of the adult’s “named person”.

Regulations 2(8) and (9) substitute new Schedules 3 and 6 respectively to reflect the new section 60(3)(b) of the Act, namely the requirement for a report from the mental health officer where an application for renewal of guardianship order relates to the adult’s personal welfare.

Regulation 2(10) substitutes a new Schedule 9 to reflect the new section 60(3)(c) of the Act, namely the requirement for a report from the Public Guardian where an application for renewal of guardianship order relates to the adult’s property or financial matters.

(1)

2000 asp 4, as amended by the Adult Support and Protection (Scotland) Act 2007 (asp 10). See section 87(1) and (1A) for the definition of “prescribed” and section 86(1) as to the power to make regulations.

(2)

S.S.I. 2002/96.

(3)

Section 60(3) of the Adults with Incapacity (Scotland) Act 2000 was substituted by section 60(3) of the Adult Support and Protection (Scotland) Act 2007.

(4)

The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), Schedule 1, paragraph 28(2) inserted “named person” in section 1(4) of the Adults with Incapacity (Scotland) Act 2000 as one of those persons whose views should be taken account of in determining if an intervention is to be made