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Cite as: [2005] ScotSC 35
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Glasgow City Council v. AD [2005] ScotSC 35 (27 June 2005)
AW56/04
JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the Summary Application by GLASGOW CITY COUNCIL for appointment of a welfare guardian to AD
Act: Cherry, Advocate, instructed by Legal Services, Glasgow City Council.
Alt: Doohan, Advocate, instructed by Gallen & Co.
GLASGOW, 27 June 2005.
The Sheriff Principal having resumed consideration of the cause refuses the appeal and adheres to the Sheriff's interlocutors dated 8 February and 15 March 2005.
NOTE:
[1] On 23 September 2004 Glasgow City Council (hereinafter referred to as "the respondents") presented a summary application under the provisions of Sections 2 and 57 of the Adults with Incapacity (Scotland) Act 2000 for appointment of a Welfare Guardian to AD. The application sought the appointment of the Chief Social Work Officer for Glasgow City Council as Welfare Guardian, and sought in particular power to convey AD to a specialist dementia unit. The application narrated that she suffered from vascular dementia and was incapax. The application further indicated that AD resided at home with her son MD (hereinafter referred to as "the appellant") but that a "suitable care environment" did not exist for her at that address.
[2] On 24 September 2004 the sheriff appointed the Chief Social Worker to be interim guardian in terms of Section 57(5) of the Act. He also appointed a safeguarder. The interim appointment of the guardian was renewed on 17 December 2004. Thereafter a contested proof on the merits of the application took place over a period of eight days with a judgment being issued by the sheriff on 8 February 2005. It is important to note that the need for appointment of a Welfare Guardian to AD was never in dispute. The essence of the dispute was whether it was appropriate for AD to continue to live at home and to be cared for by MD who vigorously opposed the application for special power. Representations supporting that position to some extent were made by witnesses led on behalf of the safeguarder. Two other sons of AD appeared on their own behalf and supported the granting of the special power.
[3] On 8 February 2005 the sheriff granted the application including the special power. He issued a lengthy and detailed Note dealing with the history of the application and the merits of it. He noted that AD had been a patient in the Southern General Hospital and thereafter in Leverndale Hospital from 21 October 2003 until 18 September 2004. On the latter date she was removed by MD against medical advice and without AD's informed consent. Having reviewed all the evidence the sheriff made the following observations in respect of MD's care of his mother. He said:
"He cannot bring himself to admit that he has had a drink problem, that he has not properly used the financial resources contributed by benefits, that he has resisted help in the past, that he has failed to collect medication, failed to ensure constant taking of medication, failed to ensure the proper provision of food, allowed her to resume smoking when that was unwise and created a risk, allowed her to have access to cooking facilities when she cannot properly cope with these, created a situation in which her family have been alienated, behaved quite inappropriately to staff when she was in hospital, allowed his own interests to prevail over hers to the point where he will not tolerate anyone having an opinion different to his, and obstinately refused to concede that he simply cannot provide the 24 hour supervision on his own which she needs".
[4] Immediately thereafter the guardian decided to implement the special powers and attempted to invited MD to co-operate in the removal of AD to the designated unit. That co-operation was refused. As a result the guardian presented an application to the sheriff under Section 70 of the 2000 Act requiring MD to comply with the guardian's decision and seeking warrant authorising a constable to "apprehend" AD under the provisions of Section 70(1)(b). This application was made on 18 February before the marking of an appeal by MD against the decision of 8 February. The sheriff heard submissions on 15 March 2005 by which date the appeal had been marked. On that date it was contended on behalf of MD that the effect of the marking of the appeal was to "sist all execution upon the decree" until the appeal had been determined. It was contended that the sheriff had no power to consider the application under Section 70. The sheriff records that this general proposition was not resisted by the respondents but they maintained that if the interlocutor of 8 February was suspended the matter reverted to the interim orders and that, in effect the interim guardian was still in office. The sheriff accepted this argument and considered that it was open to him to grant the power sought under Section 70 to the interim guardian. As more than three months had elapsed since the appointment of the interim guardian that appointment had lapsed by virtue of the provisions of Section 57(6)(b). The sheriff "recalled the interim order pronounced on 17 December 2004 and granted this of new". Having heard submissions on the merits, including a submission on behalf of MD that no circumstances of urgency had been alleged or demonstrated, he then granted the order sought under Section 70.
[5] In these circumstances there are two Notes of Appeal, the first directed against the interlocutor of 8 February 2005. It contains 14 grounds of appeal. The second is directed against the interlocutor of 15 March and contains two grounds of appeal. The first Note of Appeal contains, in the first three paragraphs, various propositions to the effect that the sheriff erred in law in relation to his disposal of the application under Section 57. The remaining grounds, nos. 4-14, set out various contentions along the lines that the sheriff erred in the exercise of his discretion in attaching weight to the evidence of certain witnesses, misdirected himself in relation to the evidence of certain witnesses, or gave undue weight to certain parts of the evidence. When the appeal called before me counsel for the respondents submitted that it was incompetent to entertain grounds of appeal relating to factual findings in an appeal of this nature. This was a summary application in which the evidence had not been recorded. No motion to record the evidence had been made. In the absence of Notes of Evidence the sheriff's conclusions on fact were binding and in consequence the appeal was limited to questions of law. Reference was made to passages in Macphail, Sheriff Court Practice, 2nd ed. at paras 16.33 and 25.25 and to the case of Allardyce v Wallace 1957 SLT 225, in particular in the Opinion of the Lord Justice-Clerk at p 227. The case of Allardyce had been followed by Sheriff Principal Nicholson in McGibbon v Sanchez 1998 GWD 736. Reference was also made to a passage in the speech of Lord Fraser of Tullybelton in G v G 1985 AC 649 at 653 where, in quoting from a passage in a speech of Bridge LJ in an earlier case his Lordship made reference to the inability of an appellate court to interfere with an exercise of discretion dependant on seeing and hearing witnesses when it lacked the essential material to do so. Reference was also made to Marsh v Taylor 1992 SLT (Sh Ct) 28.
[6] Counsel for the appellant was, in response to this, only able to submit that none of the cases referred to were of a similar nature to the present and contended that it was a matter of fairness to the appellant that he ought to be able to argue all the grounds of appeal which challenged the sheriff''s decision.
[7] In my judgement the argument advanced on behalf of the respondents in this respect is unanswerable. Whilst the case of Allardyce v Wallace was somewhat unusual in respect that the absence of a record of the evidence occurred because of the irregular nature of the procedure prior to the appeal, the remarks by the Second Division were of a general application and are in my view supported by other high authority. The passage cited from Lord Fraser's speech in G v G is pertinent. The reasons why it is incompetent to review factual conclusions based on assessment of witnesses by the judge of first instance are clearly articulated. On the appellant's argument it would be necessary to deal with questions of fact on the basis of his grounds of appeal which contain a necessarily tendentious narration of what ought to be found. Such a course would be contrary to the principles of justice and unfair to both parties.
[8] Having indicated that I did not consider that the appeal could proceed other than on questions of law counsel for the appellant confined his submissions on the principal Note of Appeal to the first three matters raised in it. The first of these is that "the sheriff erred in law in admitting into evidence and having regard to the report of the Mental Health Officer under Section 57(3)(b) of the 2000 Act". The ground of appeal sets out that the respondents failed to comply with the terms of Section 57(3)(b)(i) of the Act in that the said report was not based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application. It proceeds to narrate that the Mental Health Officer admitted in evidence that he had interviewed and assessed the adult on 17 February 2004 for the purpose of the application which was lodged on 4 September 2004. That assertion is not disputed.
[9] Section 57(3) of the Act provides that:
"There shall be lodged in court along with an application under this section (a)...
(b) where the application relates to the personal welfare of the adult a report, in prescribed form, from the Mental Health Officer,...containing his opinion as to (i) the general appropriateness of the order sought based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application; and (ii) the suitability of the individual nominated in the application to be appointed guardian".
In the schedule which accompanied the application in the present case the Mental Health Officer, Mr Marshall had not completed the date of the interview and assessment. Despite this blank the application appears to have been accepted by the Sheriff Clerk's Office and proceeded as indicated above.
[10] Counsel for the appellant contended that that the terms of Section 57(3) were imperative. It was clear why they should be so in the context of the terms of the Act. The court could only proceed to make a guardianship order in accordance with the principles set out in subsections (2) to (4) of Section 1 of the Act. The nature of mental disorders could fluctuate. A Mental Health Officer was an individual with special expertise and it was important that such individual should be properly and contemporaneously informed at the stage when the application to the court was made. The court should not have regard to the opinion of a Mental Health Officer who was less than properly informed and in these circumstances non-compliance with the provisions of Section 57(3) was fatal.
[11] Counsel proceeded, however, to indicate that the fact the Mental Health Officer's interview and assessment had been conducted more than six months prior to the making of the application had been raised in evidence in the present case. The "30 day rule" had been put to Mr Marshall when he gave evidence. A concession had thereafter been made to the sheriff at the close of submissions that no point was being taken in relation to the failure to comply with the provisions of Section 57(3). Counsel proceeded to submit, under reference to Miller v Dickson 2002 SC (PC) 30 that this should not be regarded as a situation where the right of objection had been waived as the solicitor's knowledge fell to be regarded as "imperfect". The decision to make the concession was, he maintained, "not based on knowledge of the significance of not taking the point at the time". The whole situation pertaining to the failure to comply with Section 57(3) was not, counsel accepted, dealt with at any point in the sheriff's Note. In his closing submissions he argued that the requirement of Section 57(3) was of such fundamental importance that the sheriff should have overruled any attempt to waive the requirements of it.
[12] The second ground of appeal commences with the submission that "the sheriff erred in law in having regard to the terms of the MHO report in the absence of a home assessment having been carried out...in relation to the adult". It proceeds to set out the contention that "the sheriff misdirected himself in finding the adult could not properly cope with cooking facilities when no assessment of her functioning abilities had been carried out". Counsel drew attention to the apparent finding by the sheriff that AD could not properly cope with cooking facilities (as quoted above in paragraph 3). He contended that the sheriff could not make that finding when it appeared to be acknowledged that the only functional assessment of AD had taken place in a hospital. There was thus a "gap" in the evidence, so counsel maintained.
[13] The third ground of appeal commences with the proposition that "the sheriff erred in law in failing to give due regard to AD's past and present wishes and feelings in terms of Section 148 of the Act". I shall not narrate the remainder of the ground of appeal which in my view is not entirely comprehensible. What I understood the submission to come to was that the sheriff had erred by observing at p 7 of his Note that AD was not competent mentally in June 2002. A social work assessment conducted in March 2002 contained the narrative that at that time she had indicated a wish to remain at home with the support of MD. The sheriff in consequence appeared to have erroneously taken the view that her expression of a wish to remain at home had been made at a time when she was not competent mentally.
[14] Finally, in relation to the second Note of Appeal counsel commenced by saying, as I understood him, that the sheriff should not have ordered intimation of the Section 70 application before the days for appeal against the interlocutor of 8 February had expired. At the end of the day, however, the substance of counsel's submission was that, standing the fact that there was an outstanding appeal in relation to the appointment of a guardian it was inappropriate, in the absence of considerations of urgency, for the sheriff to grant a warrant under Section 70 to an interim guardian on 15 March 2005. No direct authority was advanced in support of this proposition but a parallel was drawn with questions of the implementation of decrees after the noting of an appeal: see for example Macleay v McDonald & Anr 1928 SC 776; Fowler v Fowler 1981 SLT 78.
[15] In reply counsel for the applicants and respondents commenced her submissions with the preliminary observation that the appeal related only to the special power. The appointment of a Welfare Guardian was not opposed. It was difficult to see how the appellant could adopt the position that failure to comply with the terms of Section 57(3) of the Act vitiated the whole proceedings when the appointment of a guardian was not challenged. That apart her general submission was that the sheriff did not err in appointing the guardian in any way which would entitle an appeal court to interfere. He had dealt with the application carefully and had applied the relevant statutory provisions properly.
[16] Counsel's specific submission in respect of the first ground of appeal was that the appellant through his solicitor waived any right to take objection to the non-compliance with Section 57(3); alternatively she submitted that the provisions were directory not mandatory. She pointed out that the sheriff had not dealt with the issue of the interview and assessment by the Mental Health Officer being out of time in his Note. The reason was that no objection had been taken to Mr Marshall's evidence and indeed the appellant's solicitor had specifically stated that he was not taking the point in view of instructions which he had been given to that effect. This was a situation of express waiver. It was difficult to criticise the sheriff for admitting a report into evidence when it was never argued that it should not have been so admitted. Moreover, there was no evidential difficulty since as recorded on p 24 of the Sheriff's Note AD had been visited by a Mental Health Officer on 21 September 2004 who had produced a supplementary report on the following day. That report was before the court.
[17] In relation to the issue of waiver counsel pointed out that in Miller v Dickson it was held that "waiver" of a right to claim or raise an objection arose where a party's election to do so was "voluntary, informed and unequivocal". The only question which might arise in the present case was whether it was "informed". In Miller v Dickson the lack of informed choice arose out of the novelty of the legislation. Whilst in the present case the relevant legislation was new it could not be said that there was anything novel or difficult about the concept of an examination 30 days prior to the making of the application. The position adopted by the appellant's solicitor indicated that he knew that there was a point to be taken but had been specifically instructed not to take it. That position had been deliberately adopted in order to avoid delay. It was not reasonable for the point to be taken now.
[18] Alternatively counsel maintained that the provisions of Section 57(3) were directory not mandatory. Under reference to paragraph 11.76 of the Stair Memorial Encyclopaedia (Vol 12) she pointed out that the question of whether a provision in an enactment was mandatory or discretionary was a matter for construction depending on the whole scope of the statute. The Act did not impose any sanction for non-compliance with the provision. It was in the nature of a time limit and where a statute provided that something was to be done within a certain period of time that requirement was generally regarded as directory only: Dumfries & Galloway Regional Council v M 1990 SC 31. There had been substantial compliance with the spirit of the section in the light of the report of the visit on 21 September 2004. There was no suggestion that AD's condition had improved or changed since the time of Mr Marshall's report. In any event procedural irregularities should not undermine the purpose of the proceedings: Dundee City Council v M 2004 SLT 640. This was essentially a procedural requirement when examined in the context of the whole statute.
[19] In respect of the second ground of appeal counsel for the respondents pointed out that there was no statutory duty incumbent upon them to carry out a home assessment of the adult. The appellant's contention that the sheriff was not entitled to make a finding that the adult could not cope with cooking facilities was one, counsel contended, which strayed into areas of fact. If one examined the terms of the sheriff's Note it was clear that there was abundant evidence to justify his conclusion that AD could not cope with cooking facilities. A kitchen test had shown that she could not sequence things (see p 27). There was evidence that it was "not feasible" to have her working in a kitchen on her own (p 31), and Dr Hughes who gave evidence on behalf of the safeguarder conceded that doing any form of cooking on her own created a risk of harm (p 33). One of AD's other sons had carried out a risk assessment of the house which showed that it "contained all of the sort of hazards of domestic living which would be known to an appreciated by any adult of ordinary sensibility" but which AD had lost the capacity to understand (p 46). Any suggestion that the sheriff had not complied with his obligation to apply the general principles of Sections 1(2) and (3) of the Act requiring intervention to be beneficial to the adult and the least restrictive option had plainly been met. The sheriff said at p 55 of his Note that he was satisfied that the powers requested were needed now. He said that he was "satisfied that the sort of regime which is contemplated in the specialist unit will benefit the adult and it cannot be achieved at all, never mind reasonably without the intervention sought".
[20] Counsel maintained that there was no substance in the third ground of appeal. The sheriff had not overlooked AD's past expression of a wish to remain at home. He had specifically noted (p 22 of his Note) that AD said when she was in hospital that she wanted to go home "but was unable to say where home was". He had acknowledged that account had to be taken of her past wishes (p 48 of the Note). There was no error in law in this respect.
[21] Turning to the second Note of Appeal counsel accepted the general principle that the marking of an appeal sisted the execution of the decree to which that appeal related. It did not follow as a matter of principle that there was no power available to the court of first instance to make an interim order. A parallel was drawn with Ordinary Cause Rule 31.10 of the Sheriff Court Rules which gives power to make any interim order with due regard to the interests of parties. There had been no serious challenge to the view that if the appointment of a guardian was suspended the appointment of the interim guardian continued. His decision had not been complied with and he was accordingly entitled to make an application in terms of Section 70. Nothing in the Act suggested that the court only had power under that section to act in a situation of urgency. If the court could not act the adult would be left in the position where she was incompetent, vulnerable and completely unprotected by any order. In view of the evidence which he had heard the sheriff was bound to act taking into account the general principles contained in Section 1 of the Act. He had complied with that obligation.
Decision
[22] In my judgement the grounds of appeal insofar as they relate to the sheriff's judgment following proof are wholly without merit. In his submissions in respect of the first ground of appeal counsel for the appellant maintained that the 2000 Act "conferred a right to interfere with the freedom of an individual" and that in consequence any prescribed conditions for the exercise of that right should be treated as mandatory (see Bennion on Statutory Interpretation 4th Ed p 37). In my view that argument misconstrues the Act. Far from conferring a right on a local authority to interfere with the freedom of an individual Section 57(2) sets out certain circumstances in which a local authority is obliged to apply for an order. That is the situation which occurred here. Any "interference with the freedom of an individual" is carried out on the authority of the court. That being so the steps which a local authority are required to follow might be said to be of a procedural character with which failure to comply would not vitiate the proceedings: Dundee District Council v JM (supra). Moreover, the absence of any statutory "consequence" of failure to comply with Section 57(3) tends to support the view that the provision should be regarded as directory. Counsel was, I thought, on stronger ground when he contended that having regard to the principles of the Act it was fundamental to consideration of the application that the court should have available to it a contemporaneous report from the Mental Health Officer. That argument tends to point to the view that the requirement of Section 57(3)(b) should be regarded as mandatory. I find it unnecessary, however, to resolve this issue. As is indicated in Bennion (supra) p 40 even where a duty is mandatory in modern practice the court will not hold it to be contravened because of a formal or technical defect which "may be described as a defect that does not materially impair the remedy intended to be provided by the enactment". In the present case any right to take objection was clearly and explicitly waived on behalf of the appellant for good reason. I see no merit in the suggestion that this was does done through "lack of informed choice". The court had before it information (in the form of the report following the visit of 21 September) which enabled it to act in accordance with the principles set out in Section 1 of the 2000 Act. To take the view that failure to comply with the strict terms of Section 57(3)(b) at this stage would have the effect of undermining the entire proceedings and would have potential for grave prejudice to the well being of the adult. In my view the consequences of taking this point have not been fully considered and I have no difficulty in rejecting it.
[23] So far as the second ground of appeal is concerned this, it appears to me, does stray into areas of fact as counsel for the respondent suggested. Whilst I am reluctant to trespass into that area it is clear from the various passages in the sheriff's Note referred to by counsel that there was ample material before him to justify the conclusion that AD could not cope with cooking facilities and indeed that exposure to them constituted a risk to her.
[24] The third ground of appeal is equally without merit in my view. I tend to the view that it proceeds on a mis-reading of the sheriff's Note. I do not understand him to say in the passage referred to that AD was not competent mentally in June 2002. What I understand the passage to say is that at the stage that the appellant claimed that AD did not want the services of an occupational therapist she had ceased to be competent mentally. Even if I am wrong in that for the reasons advanced by the respondent's counsel I am satisfied that the sheriff did not err in his assessment of AD's expressed wish to remain at home or the weight to be attached to that.
[25] I have greater difficulty in relation to the appeal arising out of the interlocutor of 15 March 2005. Taking matters in sequence I reject any criticism of the sheriff for granting warrant to intimate the Section 70 application on 18 February; as the sheriff observes a court is not to know whether a party may decide to make an appeal, and it would not have been appropriate to delay intimation until the end of the period in which an appeal could have been marked. When the application called before him, however, an appeal had been marked. It is trite that once an appeal has been marked against an interlocutor of an inferior court that court is functus officio. Pending an appeal a sheriff has no power to pronounce further interlocutors except when authorised by statute to do so. In my judgement that authority is to be found in Section 3(2)(d) of the Act which provides that the sheriff may "may make such interim order as appears to him to be appropriate pending the disposal of the application or proceedings" (my emphasis).
[26] Whilst that provision was mentioned to the sheriff at the stage when the Section 70 application was heard, he appears to have acted on a different basis. The contention that "the effect of the marking of an appeal is to sist all execution upon the decree" (which is beyond question on the authority of McLay v McDonald) seems to have evolved into a view that the appointment of the guardian "was of no effect". In consequence, partly as a result of a concession, the sheriff was persuaded that the interim appointment which would ordinarily cease to have effect on the appointment of the guardian by virtue of Section 57(6)(b) was not terminated by that provision. The appointment had expired, however, because more than three months had elapsed since it was made, and the sheriff felt it necessary to make a fresh interim appointment.
[27] I am reluctant to express a concluded view, partly because the Act is not clear but more particularly because I was not addressed on the matter, but I am reasonably satisfied that this approach was wrong. I do not consider that the marking of an appeal meant that the appointment of the guardian "was of no effect". It may be that the guardian's ability to act on his appointment was suspended, but he nevertheless remained "appointed". That appointment terminated the interim appointment and I have difficulty in seeing how the marking of an appeal which did not challenge the appointment had the effect of nullifying the appointment and "reviving the interim powers". I do not see how an interim appointment could be made once a guardian had been appointed.
[28] In my view the sheriff ought to have treated the application before him as one made by the guardian which he had power to deal with under Section 3(2)(b). He ought to have taken into account that an appeal had been marked against the granting of the special power and would in consequence have had to give some consideration both to the prospect of success of that appeal as well as to the urgency of dealing with the application before the appeal had been determined, taking into account the principles of the Act. Had he refused the application that decision could have been appealed and reviewed by me as a matter distinct from the merits of the appeal. As it transpires the sheriff did not take that course but made a further interim appointment, the competency of which course I have the gravest reservations.
[29] I am not disposed to interfere, however, because it appears to me that, assuming that the fresh interim appointment was ever valid, it has again expired. I appreciate that there is a certain artificiality in drawing a distinction between the guardian and the interim guardian, but it was to the latter that the warrant was granted in terms of the sheriff's interlocutor of 15 March. By virtue of the refusal of the appeal on the merits any doubt about the position of the guardian or his authority to exercise the special power granted is now removed. If he requires a warrant to give effect to it there would appear to little to stand in the way of the granting of that of new. It is, I suspect, a forlorn hope that the appellant will co-operate with the guardian in arranging for the removal of his mother to an appropriate unit without police intervention, but the opportunity should at least be afforded to him now that his appeal has failed.