AW 52/06

Application by HH in respect of Miss McC

Background

This is an application by HH to be appointed financial guardian to Miss M McC, aged 83, brought under the terms of the Adults with Incapacity (Scotland) Act 2000.

I need not go into detail on the application itself, but for the avoidance of doubt, the adult has been diagnosed as suffering from severe dementia, and is plainly an adult with incapacity within the meaning of the Act. She owns both heritable and moveable property situated within the jurisdiction of this court, and has lost the capacity to administer it. She has also now required to be admitted to a Care Home, where she now resides, so that it is necessary to have her own home sold. She has no family here who require it, and it is lying empty, with all the problems which that entails.

I am quite satisfied that she will benefit from the proposed order, and that such benefit cannot be achieved by any other means. I am also quite satisfied that the proposed guardian is eminently suitable to be appointed. He is in fact the owner of the house next door to the adult's, and he and his wife have been informally looking after the adult's affairs for some time. He is a quite admirable individual, and it is obviously appropriate to grant the order sought.

Medical Certification

The single reason which makes this case notable, and worthy of further comment, is that when the application was first submitted, it was revealed that the adult, who came originally from Northern Ireland, but who had lived here for over 60 years, has now returned to Northern Ireland and is resident in a care home there. This court has jurisdiction to deal with the application having regard to the provisions of Schedule 3, paragraph 1(1)(b) of the Act (property which is the subject of the application situated in Scotland), and the proposed guardian resides in this jurisdiction too, as all her property is situated here.

However, section 57 of the Act provided, originally, that an application of this sort must be accompanied by reports, in prescribed form, of an examination and assessment of the adult, carried out within 30 days of the date of the application, by at least two medical practitioners "one of whom, in a case where the incapacity is by reason of mental disorder, must be a medical practitioner approved for the purposes of section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder". That provision has been amended and I will deal with the amendment shortly.

The incapacity here was by reason of mental disorder, so that provision applies. The reference to the 1984 Act is to the Mental Health (Scotland) Act 1984, and the provision in section 57 of the Act of 2000 really said three things; firstly that there must be certification from a medical practitioner, secondly that that person must be "approved", and thirdly that the person must be approved for the purposes of section 20 of that Act. The question of whether a person is a medical practitioner is a straightforward one, and I shall make no further comment about it. However, the second and third issues raised above beg two further questions, namely, 1) "approved" by whom ? and 2) what are the "purposes" of such approval ?

The matter was brought into sharp focus because the two certificates which accompanied the application were on the prescribed form, but both were signed by medical practitioners practising in Northern Ireland, and certified by an appropriate Health Authority there. The prescribed form under the Act of 2000 is of pro forma type, with text, in its original form, stating that the signatory is approved by a Health Board (with a blank space for the name of the Health Board to be inserted) for the purposes of section 20 of the 1984 Act as having special experience in the diagnosis or treatment of mental disorder. The Act of 1984 has now in fact been repealed by the Mental Health (Care and Treatment) (Scotland) Act 2003, so that the forms now read that the signatory is approved by a Health Board for the purposes of section 22 of the Act of 2003.

The Problem

The problem was that neither of the two medical practitioners, albeit no doubt suitably qualified to express the opinions they did, had been approved by any Health Board in Scotland.

Question 1) above, was, "approved" by whom ?

Section 20 of the 1984 Act appeared in that part of that Act which regulated, inter alia, admission to and detention in hospital, and dealt with the medical recommendations required for the purposes of such admission. Section 20(1)(b) provided that one such recommendation should be given by "a [medical] practitioner approved for the purposes of this section by a Health Board as having special experience in the diagnosis or treatment of mental disorder...". It seems tolerably clear that the meaning of "Health Board" is that provided by the National Health Service (Scotland) Act 1978. The purposes of the section are also tolerably clear from what I have just said.

In any event, for all practical purposes, including the consideration of this application, it is what is said in section 22 of the 2003 Act which is important. That Act, by schedule 4 paragraph 9(4), amends section 57(3) of the 2000 Act, so that it now reads that one of the reports must be from "an approved medical practitioner", which is then defined in the new section 57(7) as having "the meaning given by section 22 of the 2003 Act".

Section 22 appears in a Part of the 2003 Act dealing with Health Board and Local Authority Functions, and obliges Health Boards and the State Hospitals Board for Scotland to compile and maintain a list of medical practitioners who have such qualifications and experience, and have undertaken such training, as may be specified in directions given by the Scottish Ministers, and are approved for the purposes of section 22(1)(b) as having special experience in the diagnosis and treatment of mental disorder. Furthermore, such a list compiled by a Health Board shall relate to its own area (subsection 3).

Thus, the answer to the first question above is, "approved by a Health Board, and compiled for its own area". "Health Board" means (section 329) a board constituted by order under the National Health Service (Scotland) Act 1978. These are all Scottish Boards, and as I understand it, contain the names of those medical practitioners who have been approved, in respect of training and experience, to act in the area of the Board. By definition, such lists will not include practitioners who operate in England, Wales or Northern Ireland, or indeed in any country other than Scotland, but who nonetheless will possess qualifications to make assessments of adults who may be suffering from incapacity as defined in our legislation.

The answer to the second question posed above appears to be that approval signifies that the person approved has special experience in the diagnosis and treatment of mental disorder, and the obvious purpose of having such a list is to provide general certification that the individuals listed possess such qualifications and experience and have undergone such training. (I retain a slight nagging doubt about the meaning of the words "of this paragraph" [my emphasis] which appear in section 22 (1)(b), but that is perhaps technical and I shall say no more about it here).

One of the original certificates in this case had been completed by the doctor concerned by scoring out the reference to the approval for the purposes of the 1984 Act and inserting a docquet that she was a "Part II Doctor under Mental Health Order (NI) 1986". The other one was completed by a doctor who had certification by a Health Board in Northern Ireland, but not, ostensibly, in Scotland.

While that certification may well indicate equivalent approval under legislation applying to Northern Ireland as is required under legislation applying in Scotland, it does mean that there was no certificate produced from any practitioner whose name appeared on any list maintained by any Scottish Health Board, and thus, by definition, there was no report from "an approved medical practitioner" as defined in section 22(4) of the 2003 Act.

I may add in the passing that I was advised by the solicitor for the applicant in this case that the view I have just expressed was shared by the Office of the Public Guardian, and I accept that assertion, albeit I did not have any submission directly from that Office. The reason for that was that the solicitors acting had accepted the difficulty posed by the original application and had got round the problem by instructing a medical practitioner who is approved by one of the Scottish Health Boards for the purposes of section 22 of the Act of 2003 to travel from Scotland and attend in Northern Ireland, where an assessment and report as required by the Act was then completed and submitted. As I have already mentioned, only one of the two reports need be from such an approved practitioner, and the other one in this case remains from a doctor practising in Northern Ireland, but to whose attention the relevant definitions and tests have been drawn and whose report addresses these.

In the result then, the requirements of section 57(3) were satisfied, but only at a cost, firstly of unavoidable delay, and secondly of the financial implications of undertaking what was in fact done. I have been told what the actual cost of that was, and can say that in this particular case the cost was actually quite moderate, but it is easy to envisage that in other similar cases, the financial cost of complying with the legislation as currently drafted could be substantial.

The Future

I did not have the benefit of full argument on the point I have mentioned, which is not meant to imply any criticism whatsoever of the solicitors for the applicant, because, as I have mentioned, they accepted the point raised, and, I believe, correctly did so.

It may be that I have omitted to notice some other relevant statutory provision, but if the facts of this case have correctly identified a difficulty, then it is perhaps the sort of difficulty which may require to be addressed by amending the requirement of section 57 of the Act of 2000 in such a way that a report prepared by a medical practitioner, practising in a country other than Scotland, but with equivalent qualifications and experience to those mentioned in the 2003 Act, and no doubt containing some appropriate certificate to that effect, and to whose attention the relevant statutory tests and definitions had been drawn, would suffice for the purpose of the section, without the need to require a practitioner who does have such approval, in Scotland, to travel to another country to complete the assessment and report.

In that connection my attention has been drawn to the provisions of the Adult Support and Protection (Scotland) Bill, currently before the Scottish Parliament. The difficulty I have referred to as arising in this case appears to be addressed by the provisions of clause 61(1)(a) of the Bill, which seeks to insert a new subsection 6B(b) and (c) into section 57 of the 2000 Act. Those provisions as currently worded allow for reports to be submitted by, in addition to those approved under section 22 of the 2003 Act,

"(b) where the adult concerned is not present in Scotland, a person who

(i)                 holds qualifications recognised in the place where the adult is present and has special experience in relation to the diagnosis and treatment of mental disorder which correspond to the qualifications and experience needed to be an approved medical practitioner, and

(ii)               has consulted the Mental Welfare Commission for Scotland about the report concerned, or

(c) a person of such other description as the Scottish Ministers may prescribe."

It appears to me that such a provision may well resolve the difficulty, albeit the additional imposed requirement to consult with the Mental Welfare Commission will create additional administrative procedure, and possibly at cost, for reasons which are not at present identified.