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Cite as: [2004] ScotSC 87

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SHERIFFDOM OF LOTHIAN AND BORDERS

AW4/03

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC

in the appeal

in the cause

THE CITY OF EDINBURGH COUNCIL

Applicants (Respondents)

against

Z

Respondent (Appellant)

_________________________

Act: C M Campbell QC, Doohan; City of Edinburgh Council

Alt: J J Mitchell QC; Garden Haig

EDINBURGH, 23 December 2004.

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; varies the interlocutor of 29 June 2004 complained of (1) by deleting the word 'additional' where it occurs between the words 'with the' and 'following powers', and (2) by deleting the words 'from today's date' and substituting therefor the words 'upon the issue to him by the Public Guardian of a certificate of appointment; authorises the Public Guardian to issue to him a certificate of appointment, and decerns'; quoad ultra adheres to the said interlocutor; finds no expenses due to or by either party in respect of the appeal.

NOTE

Introduction

[1] This is said to be the first appeal under section 2(3) of the Adults with Incapacity (Scotland) Act 2000 ('the Act'). The appeal is taken against a decision of the Sheriff in an application for a guardianship order under section 57 of the Act in relation to an adult woman, Z. The applicants are the local authority for the area in which Z resides (section 87(1)). They have lodged a summary application (section 2(2)) seeking an order appointing their Director of Social Work as the guardian of Z with the following powers in relation to her personal welfare:

(a) the power to decide where Z should reside;

(b) the power to allow access to Z to all relevant professional staff; and

Z opposes the application and has lodged answers. On 29 June 2004 the Sheriff, having heard evidence and the submissions of counsel for both parties, granted the application and appointed the Director of Social Work to be the guardian of Z for a period of three years (section 58(4)). Z now appeals.

The statutory framework

[2] The local authority's application is for an order appointing one of its office holders as guardian in relation to Z's personal welfare. The following provisions of the Act are accordingly of primary importance in this case. Section 57 provides, so far as material:

57. - (1) An application may be made under this section by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing an individual or office holder as guardian in relation to the adult's property, financial affairs or personal welfare.

(2) Where it appears to the local authority that -

(a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and

(b) no application has been made or is likely to be made for an order under this section; and

(c) a guardianship order is necessary for the protection of the property, financial affairs or personal welfare of the adult,

they shall apply under this section for an order.

(Subsection (2) is incorrectly printed in the annotated versions of the Act.)

[3] Section 58(1) provides that the Sheriff 'may grant' an application under section 57 where he is satisfied that:

(a) the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be so incapable; and

(b) no other means provided by or under this Act would be sufficient to enable the adult's interests in his property, financial affairs or personal welfare to be safeguarded or promoted.

The words 'may grant' indicate that if these two conditions are satisfied, the granting of the application is a matter within the discretion of the Sheriff.

[4] Section 58(4) provides:

(4) Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as a 'guardianship order') appointing the individual or office holder nominated in the application to be the guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown, he may determine.

[5] Section 1(6) provides that for the purposes of the Act, and unless the context otherwise requires, 'adult' means a person who has attained the age of 16 years, and 'incapable' means

incapable of -

(a) acting; or

(b) making decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder [...];

and

'incapacity' shall be construed accordingly.

(This definition is also incorrectly printed in the annotated versions of the Act.) 'Mental disorder' means 'mental illness (including personality disorder) or mental handicap however caused or manifested' (section 87(1)).

[6] It is convenient to notice here that Z is an adult of 28 years of age, and that it is common ground that she is 'incapable' by reason of 'mental handicap', the condition now generally referred to as 'learning disability'.

[7] Section 1 of the Act states the general principles to which a Sheriff is obliged to give effect when determining an application of this kind. It provides, so far as material:

(1) The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any proceedings under this Act for or in connection with an adult.

(2) There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.

(3) Where it is determined that an intervention as mentioned in subsection (1) is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.

(4) In determining if an intervention is to be made and, if so, what intervention is to be made, account shall be taken of -

(a) the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise) appropriate to the adult; [...]

(b) the view of the nearest relative and the primary carer of the adult, in so far as it is reasonable and practicable to do so; [...]

[8] Section 64 makes provision as to the functions and duties of a guardian. It enacts:

(1) Subject to the provisions of this section, an order appointing a guardian may confer on him -

(a) power to deal with such particular matters in relation to the property, financial affairs or personal welfare of the adult as may be specified in the order;

(b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order; [...]

(2) A guardian may not -

(a) place the adult in a hospital for the treatment of mental disorder against his will; [...]

[9] The effect of the appointment of a guardian is stated in section 67:

(1) The adult shall have no capacity to enter into any transaction in relation to any matter which is within the scope of the authority conferred on the guardian [...]; but nothing in this subsection shall be taken to affect the capacity of the adult in relation to any other matter.

The facts found by the Sheriff

[10] The following statement of the facts is derived from the Sheriff's judgment. Z, who is now 28 years old, has suffered throughout her life from Prader-Willi's Syndrome ('PWS'). This condition is physiological in origin. Its effect is that she will go on eating for as long as she can obtain food, because the part of her brain that should control the mechanism whereby she would normally feel satiated does not function. As a result she is liable to continue eating without ceasing if not prevented, with the result that her weight will increase to a level that is dangerous in the sense that she is liable not only to die suddenly of a heart attack but also to become more susceptible to certain serious illnesses. Because of her condition she is unable to take any kind of rational decision as regards food. There are no lengths to which she will not go to obtain food if she is not prevented. In other areas of her life she is capable of making adequately sensible decisions. She does, however, suffer from a mild degree of mental disability.

[11] Z has been living in a small flat in Edinburgh. She received care there for 47 hours a week. Her care workers did their best to prevent her from abusing food, but they did not have any power to prevent her from doing so. That arrangement has broken down, and its breakdown has led to the present application.

[12] If the present application were to be granted, Z would move for the period of the order to Gretton Homes in Kettering, a special residential home for persons with PWS. It is not a hospital for the treatment of mental disorder. It is a proven success. Z has been there on at least four occasions for 'respite'. When she has been there she has done well and has been reasonably happy. The benefits arising out of her eating being controlled have included weight loss and an improvement in her general health. She is able to pursue her interests there, which include caring for animals and charity shop work. There is nothing of significance in terms of hobbies or interests that she could do in Edinburgh but could not do in Gretton Homes. Her parents would be able to visit her at Gretton Homes to the same extent as they do at present.

[13] Z does not want to go to Gretton Homes. She would prefer to stay in Edinburgh in private accommodation with 24-hour care by a team of supervisors. The accommodation would not be in the flat where she has been living, since it would be too small to allow another person to stay there overnight to care for her. At least one worker would have to be with her 24 hours a day. That worker would have to be in Z's presence except when Z was locked in her bedroom in circumstances in which it was clear that there was no food in the bedroom. When allowances are made for sickness, leave and other contingencies, this arrangement would require a trained team of at least six or seven carers. They would have to be people who had an understanding of Z's illness and its ramifications. They would also have to be trained to operate as a team even though it is probable that only one of them would be in the accommodation at any given time.

[14] Z does not oppose the application for a guardianship order. She wishes, however, that any power given to the guardian to decide where she should live should be limited. Before the Sheriff, it was submitted on her behalf that the power should be restricted to 'her own tenancy and in the Lothian area', but that that limitation should not apply for the first three months of the order. In the grounds of appeal and at the hearing of the appeal, it was proposed on her behalf that the power should be conferred for only six months: see [19] and [26] below. The object of conferring a power limited in either of these ways would be to give the local authority an opportunity to try to put in place the arrangement proposed by Z. That would involve creating a plan that provided for general care in her home for Z; for the provision of such services as dietary, medical and social work advice; for the obtaining of new accommodation in a location acceptable to Z with enough rooms to allow a carer to stay overnight; for the recruitment and specialised training in the subject of PWS of staff in sufficient numbers to provide both 24-hour cover and back-up; and for an adequate monitoring service to make sure that her care was being provided appropriately. None of this would be necessary were she to move to Gretton Homes.

[15] In particular, the arrangement proposed by Z would involve the following practical difficulties. It may be that no one would want the job of caring for Z in these conditions. The job would not be well paid and it would be very stressful. The workers would have to be trained in the specialities of PWS. It would be necessary to devise some kind of system whereby, first, each of the various carers knew what the others were doing and, secondly, the system was constantly checked to make sure that it was not breaking down through a weak link. It is not clear how many carers would be required: one would have to allow not only for three people each working an eight-hour shift, but also for cover for sickness and holidays. It would not be possible to put an untrained person into such a team even as a short-term measure. Even if it were possible to recruit and train staff, there would be nothing to stop them departing without notice, leaving the whole team critically short. Thus the system would be continually susceptible to breakdown, with very serious consequences for Z.

[16] The arrangement proposed by Z is to all intents and purposes unworkable. It is very likely either never to come into operation through unavailability of staff or to break down quickly because of the demands made upon it. Even if it were not unworkable, it would be more restrictive than the arrangement proposed by the local authority. Under Z's proposed arrangement, she would never be alone except when she was locked in a room which had been checked to ensure that there was no food in it. She would not be able to form a relationship because of the constant presence of a third party. She would enjoy a much more relaxed atmosphere at Gretton Homes.

The Sheriff's decision

[17] The Sheriff found these facts to be established, and considered whether he was satisfied that the two conditions stated in section 58(1) applied (see [2] above). There was no dispute as to the first: it was conceded that Z was incapable in relation to decisions about, or of acting to safeguard or promote her interests in her personal welfare and that she was likely to continue to be so incapable. As to the second, it was also accepted that no means provided by or under the Act, other than a guardianship order, would be sufficient to enable Z's interests in her personal welfare to be safeguarded or promoted. Those two conditions having been met, it was for the Sheriff to decide, in a proper exercise of the judicial discretion confided to him by the Act, whether to grant the application. Here he was required to give effect to the three principles set out in section 1(2) to (4) (see [5] above). As to the first principle: clearly both parties were agreed that intervention in the form of a guardianship order would benefit Z and that such benefit could not reasonably be achieved without that intervention (section 1(2)). The Sheriff considered the second principle and concluded that an order in the terms sought by the local authority would be the least restrictive option in relation to the freedom of Z, consistent with the purpose of the intervention (section 1(3)). As to the third, he took account of the feelings and wishes of Z (section 1(4)(a)) and said:

The application as regards the three additional powers is opposed by Z herself. The reason for this is that she would prefer to live in Edinburgh in supported accommodation. Partly the reason for her opposition is that she wishes to continue to live in Edinburgh per se, partly it is that she would prefer to live in her own flat, rather than in residential accommodation. These wishes are of course entirely understandable and weight has to be given to them as expressed. (Page 2.)

While I appreciate that Z has expressed a wish not to go to live [at Gretton Homes], I have to say in the first place I do not think she is well placed to judge her own best long-term interests, and, in the second place, to say that I have given anxious consideration to her wishes, but conclude that it is a situation that other considerations overwhelmingly demonstrate that they should not be given effect to. (Page 16.)

The Sheriff also took account of the views of Z's parents (section 1(4)(b)), who supported the application. He concluded that the arrangements for 24-hour home care proposed for Z were to all intents and purposes unworkable, and that even if they were reasonably feasible, they would be more restrictive than residential care at Gretton Homes. He accordingly granted the application and appointed the Director of Social Work to be the guardian of Z for a period of three years. He was not invited to consider the detailed aspects of any of the three powers sought, and in particular he was not asked to determine whether the power to decide where Z should reside should subsist for a shorter period than three years.

The note of appeal

[18] As I have noted, this is understood to be the first appeal under section 2(3) of the Act. When the appeal was marked, doubts were expressed as to the correct form of the note of appeal, and I was asked to advise. While the application to the Sheriff must be made by summary application (section 2(2)), no provision as to the form of the note in an appeal to the Sheriff Principal is made either in the Act or in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, Chapter 2, Part II, or Chapter 3, Part XVI. I recommended that an appellant should follow the rules prescribed for appeals in ordinary causes by rule 31.4 of the Ordinary Cause Rules 1993. Thus the note should, amongst other things, state in brief specific numbered propositions the grounds on which it is proposed to submit that the appeal should be allowed or as the case may be (rule 31.4(3)). Similar specification is required in appeals to the sheriff under or in pursuance of the Act: Act of Sederunt, Chapter 3, Part XVI, rule 3.16.7(2) and Form 24. A note in such terms is helpful because it identifies for the respondent and the Sheriff Principal (and for the Sheriff, in a case where it is appropriate that he or she should be asked to write a note) the points which will be in issue at the hearing of the appeal and the nature of the argument in relation to these points (Smyth v Pearce Edinburgh Sheriff Court, 13 July 2004, unreported, at [14]; McCaskill v McCaskill Edinburgh Sheriff Court, 22 September 2004, unreported, at [4]; cf Cunningham v M Edinburgh Sheriff Court, 25 November 2004, unreported, at [11]).

[19] Z's legal advisers followed those recommendations and lodged a helpful document headed 'Grounds of Appeal and Note of Argument'. The document explains that it is accepted that a guardianship order is appropriate and necessary, and that the duration of the order should be three years, which is the normal life of a guardianship order (section 58(4)). The issues in contention are two of the three powers sought by the local authority and granted by the Sheriff: (a) the power to decide where Z should reside, and (c) the power to insist that Z attends daily activities when required (see [1] above). The primary issue is the duration of power (a), which was granted for a period of three years. The appellant contends that the Sheriff erred in law in granting that power for that period. On the evidence, it is said, he was only entitled to find that such a power should be granted for the immediate future. The second issue is power (c), which the appellant maintains is unclear and should be deleted. A form of order acceptable to Z would be in these terms:

[...] appoints the Director of Social Work [etc] as guardian of [Z] for a period of three years from today's date, with the following additional powers: (a) the power to decide where the adult should reside and (b) the power to allow access to the adult to all relevant professional staff, each for a period of six months from today's date [i e the date of determination of the appeal].

'Additional powers'

[20] Before I summarise and discuss the parties' substantive submissions it will be convenient to dispose of a dispute between them as to whether the powers sought are properly described as 'additional powers'. The appellant's legal advisers so describe them and characterise the application for these powers as an application for consequential or ancillary orders under section 3 of the Act, which provides:

3. - (1) In an application or any other proceedings under this Act, the sheriff may make such consequential or ancillary order, provision or direction as he thinks appropriate.

(2) Without prejudice to the generality of subsection (1) or to any other powers conferred by this Act, the sheriff may -

(a) make any order granted by him subject to such conditions and restrictions as appear to him to be appropriate; [...]

The Sheriff in his interlocutor likewise describes the powers as 'additional'. He appoints the Director of Social Work as guardian of Z 'with the additional following powers, viz [(a), (b) and (c)]'. The local authority, however, in the relevant crave of their summary application crave the court to grant an order under section 57 appointing the Director of Social Work as guardian of Z, and continue:

In particular the applicants seek the following power in relation to the personal welfare of [Z] (hereinafter referred to as 'the Adult'):- [(a), (b) and (c)].

At the hearing of the appeal Z's counsel referred to the powers as consequential or ancillary orders under section 3(1), while the local authority's counsel maintained that they were conferred by virtue of section 64(1) (see [8] above).

[21] In my opinion the powers conferred by the Sheriff cannot accurately be described as additional powers, because if they were to be deleted from the interlocutor, the guardian would not have any other powers. A guardianship order does not of itself confer any powers on the guardian. It only appoints him to be the guardian of the adult for a particular period (section 58(4): see [4] above). The court, having decided to intervene in the affairs of the adult by making an order, is then obliged to tailor the powers to be conferred on the guardian in such a way that the intervention will be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention (section 1(3): see [7] above). The capacity of the adult remains unaffected in relation to any matter which is not within the scope of the authority of the guardian (section 67(1): see [9] above). The powers that the court may confer are specified in section 64. In particular, the powers that may be conferred in relation to the personal welfare of the adult are stated in section 64(1)(a) and (b) (see [8] above). Those conferred by the Sheriff appear to me to be derived not from section 3(1) but from section 64(1): they are powers to deal with specified matters in relation to the personal welfare of Z, or with specified aspects of her personal welfare. I therefore consider that any powers conferred on Z's guardian should not be described as 'additional' powers.

Submissions
Submissions for the appellant
[22] The important issue, however, is whether the Sheriff has erred in law in the ways contended for in the grounds of appeal (see [19] above). The appellant's counsel began by pointing out that the case had a number of unusual features. It was the first example of an adult being sent to Gretton Homes under compulsory powers. The appellant's condition, PWS, was a physiological one which by itself could not justify her compulsory admission to Gretton Homes. It was only because of her mild mental disability that she was eligible for that course. Her guardian would not be entitled to place her in a hospital for the treatment of mental disorder (which included mental handicap: section 87(1) - see [5] above) against her will (section 64(2)(a): see [8] above). But Gretton Homes was not a hospital. It was also in England. The effect of the order would be that because she suffered from a mild mental disability she could be placed in a residential institution in England or Wales or Northern Ireland which was not a hospital. There were questions as to the consequences of her non-compliance with the decisions of her guardian when she was in England (section 70) and as to the consequences of her moving outside the area of the local authority (section 76). There had been one other case of an adult with PWS having been made the subject of a guardianship order (by the Sheriff at Jedburgh on 25 July 2003). That adult, however, had not been placed in residential care but had been afforded 24-hour care at home. The present case was an 'absolutely unique' instance in Great Britain of a person with an essentially physiological problem being sent against her will to an institutional setting outside her own area. Counsel emphasised that Z did not want to be sent away to an institution: she disliked aspects of community life and would prefer the personal freedom of being in a flat in or near Edinburgh, her home city.

[23] Counsel submitted that the court must look with extreme care at any suggestion that an order with such consequences should be made. While it was accepted that the Sheriff was entitled to find that in the short term such an order was a necessary measure, the critical issue was the easy assumption made by the local authority and the Sheriff that the powers conferred should stretch on indefinitely for what were suspected to be reasons of convenience. It was important to recognise that the purpose of the Act and orders made thereunder was, not to deal with imprudent decisions by adults, but to deal with the implications of the inability to make decisions rather than with the ability to make decisions which in the event turned out to be over-optimistic or imprudent. It was not disputed that a guardianship order should be made: what was in dispute was the proposition that the power to decide where Z should live should continue for three years. Powerful evidence would be required to demonstrate that no lesser intervention could meet the case. It did not appear that the duration of the power had been addressed or that the Sheriff had made anything more than an assumption that the power should endure for three years.

[24] Counsel then examined the evidence relative to that issue. He set against the evidence of Z the evidence of other witnesses. They had not dealt with the matter in any detail: Professor A J Holland at 74C-75A; Ms H Kurkowski at 198F-199E; Ms M MacLeod at 250C; Ms M C Healy at 274D, 303C-304B, 316C-318A; Dr F H Dowds at 412C-D, 421C, 427C-428B, 429F-431C; Dr A M Guzman at 453C-456E; and Dr N J Simpson at 483A-485C, 491A-493B. Dr Simpson's evidence was the clearest: he had indicated that a care plan for Z in a home of her own might be set up in three months. None of the witnesses had supported the proposition that Z would have to be directed where to reside for a period of three years. There was a likelihood that if she went to Gretton Homes for three years the order would simply be renewed at the end of that time. The local authority had failed to discharge the onus of overcoming the will of Z, the adult. Their evidence had been sufficient to satisfy the Sheriff that the power to decide where Z was to reside was necessary in the short term, but not in the long term.

[25] Counsel went on to present an argument to the effect that the Sheriff had fundamentally misunderstood the correct approach to the application of the principle in section 1(3) that any intervention must be 'the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention' (see [7] above). The Sheriff had accepted the opinions of a number of professional witnesses that Z would have greater freedom in residential care than she would in her own home. But the question of which option was the more restrictive should not be determined by the evidence of experts as to how they personally would prefer to live or as to how they believed an adult should think or feel. The question was a matter of the personal perspective of the adult in regard to her freedom. It was answered conclusively by asking which option would be more restrictive of her ability to live as she wished, not as others believed she ought to live. If she said truthfully - and the truthfulness of her evidence had not been challenged - that it would be more restrictive for her to live in residential care, that was an end of that question.

[26] Counsel further submitted that a fundamental difficulty with the Sheriff's approach was that he had nowhere dealt with the issue of whether Z should be subject for the whole three years of the order to a power to decide where she should reside. None of the professional witnesses had spoken to the granting of such a power for three years. Admittedly it was not clear that the matter had been addressed in the submissions made to the Sheriff, but it was a matter for the Sheriff himself to address. Counsel now submitted that the power should be conferred for a period of six months (see [19] above), which was twice the period of three months spoken to by Dr Simpson (see [24] above). There was no presumption that any power conferred in an order should last for the whole period of the order. This was a matter of central significance as far as the adult was concerned. It was clear from section 1 that the granting of a power required very clear justification, and it should only be granted for the shortest period of time consistent with the evidence.

[27] Counsel did not comment adversely on the second power granted to the applicants: '(b) the power to allow access to Z to all relevant professional staff'. He did, however, submit that the third power granted, '(c) the power to insist that Z attends daily activities when required', should be deleted. Counsel queried the purpose of this power, why it had been sought, and what were the 'activities' contemplated. The power had not been discussed in the evidence or in the submissions or in any of the reports which had been lodged. Counsel indicated that he could not have opposed an application for a power such as that conferred in the Jedburgh case (see [22] above): 'the power to ensure that the adult attends or participates in training and educational services/resources felt by the guardian to meet the needs of the adult'. Nor would counsel have opposed the granting of such a power for the full three years of the order.

Submissions for the respondents
[28] Counsel for the respondents submitted that the Sheriff had not erred in any way which would entitle this Court to interfere with his decision, but had dealt with the case in a careful and correct manner and had properly applied the relevant statutory provisions to the evidence. The duration of the power to decide where Z should reside had not been in issue at the proof. The Act clearly intended that the powers conferred by a guardianship order should apply throughout the period of the order. Either party could seek to persuade the Sheriff to fix a period other than three years for the duration of the order (section 58(4)). The appellant had not addressed the question of what would happen at the end of the proposed six-month period: thereafter the guardian would be powerless in that regard for the remainder, and the bulk, of the period of the order. The thrust of the appeal was that it was not appropriate that Z should be kept in Gretton Homes against her will. However, the power granted in the order was not specific to any particular location. The practical consequence that Z would reside at Gretton Homes might be likely, but it was not set in stone for the next three years. The guardian was under a continuing duty to exercise his powers in accordance with the 'least restrictive option' principle in section 1(3). If some facility closer to Edinburgh were to open, it would be within the guardian's powers to send Z there. Or if 24-hour care in the community in Edinburgh were to be a practicable and least restrictive option, there was no reason to suppose that the guardian would not act accordingly. If it were to be thought that the guardian was going wrong, any person claiming an interest in Z's personal welfare could apply to the Sheriff for directions under section 3(3): see Ward, Adult Incapacity, pp 74-76, paras 5-14, 5-15. Such a person could also apply for a variation of the order under section 74. The Mental Welfare Commission for Scotland also had relevant functions (section 9). There was evidence that the order would be the subject of regular internal review by the Social Work Department (Ms Kurkowski at 199C-D).

[29] The precise powers sought had not been an issue at the proof. No specific issue had been raised about power (c), and there was no good reason to interfere with it: it was clear from the answers lodged on Z's behalf that she was aware of her obligation to attend daily activities at Gretton Homes. The issues focussed at the proof, as recorded in the Sheriff's note, had been (1) whether 24-hour home care for Z was reasonably feasible; and (2) if so, whether it would be less restrictive than residential care at Gretton Homes. The Sheriff had decided (1) that the proposed scheme for 24-hour home care was to all intents and purposes unworkable, but (2), that even if it were reasonably feasible, it would be more restrictive than the option of residential care at Gretton Homes.

[30] At root, the proposal for the appellant was that there should be some pre-ordained and relatively short time limit on Z's stay at Gretton Homes in the hope that during that time a care package of the kind rejected by the Sheriff could be put together and made to work in a satisfactory manner. The Sheriff's unchallenged findings showed that there was no basis for that hope. In any event the Sheriff had been entitled to hold that such a package would be more restrictive for Z. The appellant's submissions as to the meaning of 'restrictive' had not been foreshadowed in the written grounds of appeal. In any event the terms of section 1(3) indicated that it was for the Sheriff to determine whether an option was 'the least restrictive' and to apply an objective test: the views of the ex hypothesi incapable adult could not be conclusive. The Sheriff had considered which of the two options restricted the adult's freedom to the greater extent. He had been obliged to take the adult's wishes and feelings into account (section 1(4)(a)) and he had done so, but the adult's views were not conclusive. Expert evidence by appropriately qualified witnesses was unobjectionable and the Sheriff had been entitled to take it into account.

[31] Many of the issues raised at the hearing of the appeal had not been ventilated before the Sheriff. But the Sheriff had not gone wrong. He had recognised that Z's being resident in England was an anxious and important matter. There was no reason to consider that she would be sent there for reasons of convenience. The Sheriff had heard four days of evidence, much of it from well-qualified experts, and had concluded that the order was appropriate and would be beneficial to Z. Counsel referred to the evidence of Ms Kurkowski at page 237 to the effect that Z's move to Gretton Homes was not necessarily permanent. The Sheriff had weighed the evidence of the witnesses and had reached conclusions he had been entitled to reach.

Discussion
[32] Since this is said to be the first appeal under the Act, I have set out the relevant statutory provisions, the facts and the parties' submissions in some detail. I recognise that the result of the appeal is of great importance to Z and that the case has unusual features, as her counsel pointed out (see [22] above). I consider, however, that notwithstanding those features and the sympathy which Z's distressing condition must command, the appeal falls to be disposed of on fairly simple grounds. I have already noted how the Sheriff arrived at his decision (see [17] above). It was clear that the arrangements for the care of Z in her own home had broken down and that a form of intervention was required that would meet her needs. It was common ground between the parties that the two conditions in section 58(1) had been met and that effect should be given to the first of the three principles set out in section 1 by the making of a guardianship order. In considering whether to make an order in the terms sought by the local authority the Sheriff properly directed himself as to the terms of the other two principles. Thus far, he did not err in law.

[33] The appellant's primary complaint is that the Sheriff erred in law in granting for the period of the whole three years of the guardian's appointment the power to decide where Z should reside. It is scarcely possible, however, to find fault with the Sheriff for doing so, because it was not argued to him that he should grant the power for any lesser period. What the appellant asked him to do was to limit the place of residence to her own tenancy in the Lothian area after the first three months of the order had elapsed. In any event, such evidence as was led in relation to the matter was in my view much too sketchy to entitle an appellate court to conclude that the Sheriff erred in this respect. It cannot be maintained that there was a preponderance of relevant, credible, reliable and cogent evidence in favour of the appellant's proposal which no reasonable sheriff, properly directing himself, would have declined to accept. The only passage in the evidence that deals with the question with any degree of precision is the statement by Dr Simpson that a home care plan for Z might be set up in three months. That, in my opinion, is much too slender a foundation for an effective attack on the Sheriff's judgment on this point. The weight of the evidence, as assessed by the Sheriff after hearing skilled witnesses over four days, led him to conclude that the alternative option proposed on Z's behalf was to all intents and purposes unworkable. The Sheriff was clearly entitled to make that finding, and it remained unchallenged at the hearing of the appeal. On the evidence which the Sheriff accepted, the arrangements for the domestic care of Z had broken down and the only feasible option for the reasonably foreseeable future that was before the court was the option of residence at Gretton Homes. Accordingly it was plainly within his discretion to confer on the guardian the power to decide where Z should reside in the unqualified terms sought in the application.

[34] It is, I think, unnecessary for me to express any view on the question whether any power conferred on a guardian must last for the whole period of the guardian's appointment. That question was not discussed before the Sheriff. Since there is no evidence which would entitle this court to consider whether the power to determine where Z should reside should be limited to a shorter period, the issue does not arise for decision.

[35] It is also unnecessary, in my view, to discuss the correct approach to the principle of 'the least restrictive option' in section 1(3). Since there is no feasible alternative with which to compare the course of sending Z to reside at Gretton Homes, the need to make a comparison does not arise. In any event I would decline to entertain this question in the absence of notice of it in the note of appeal.

[36] I shall mention two other matters referred to by the appellant's counsel lest it be thought I have overlooked them. First, counsel pointed out that Gretton Homes was not a hospital for the treatment of mental disorder and that Z's guardian would not be entitled to place her in such a hospital against her will because of the terms of section 64(2)(a) (see [8] above). The object of that provision is, I think, to leave room for the operation of mental health legislation.

[37] Secondly, counsel criticised the Sheriff's assessment of the evidence of Dr Guzman, a clinical psychologist. The Sheriff said that he approached her evidence with some reservation because she had 'far exceeded the brief given to her by the petitioners and for this reason I do not think her conclusions can be regarded as sound.' Counsel observed with some justification that that was a non sequitur. The witness explained that she had provided information 'from an objective point of view in my professional perspective'. It is difficult to see any ground for objection to the giving by a skilled witness of relevant evidence that is within his or her area of expertise albeit beyond the scope of the instructions given by the party calling the witness. However, while Dr Guzman's evidence indicates that she did not favour the removal of Z to Gretton Homes and she thought the services necessary for Z could be provided locally, her evidence is not sufficiently specific to support the restricted form of order sought on behalf of the appellant.

[38] The appellant's second submission was that power (c) should be deleted from the Sheriff's interlocutor. That power, the 'power to insist that the adult attends daily activities when required', was not discussed in detail before the Sheriff. If it is considered in isolation, it is vulnerable to the criticisms made by the appellant's counsel (see [27] above). However, considered in the context of both parties' familiarity with the system at Gretton Homes, which was discussed in the course of the evidence, it is sufficiently intelligible. It is, for example, stated on the appellant's behalf in her answers that she does not enjoy staying there because, amongst other things, she 'has to join in activities with all the other residents'. It seems clear that the object of the power is to ensure her attendance at such activities.

Result
[39] In the result, I have decided to adhere to the Sheriff's interlocutor, subject to two minor variations. I have deleted the word 'additional' from the statement of the powers conferred since I consider that to be a misdescription (see [21] above). I have also provided that the appointment of the Director of Social Work as guardian of Z should commence upon the issue to him by the Public Guardian of a certificate of appointment (see section 58(7)).