AW16/08

 

 

THE SHERIFFDOM OF NORTH STRATHCLYDE AT KILMARNOCK

 

 

 

SUMMARY APPLICATION

 

under

 

THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

 

by

 

R McC

(Assisted Person)

 

FIRST APPLICANT

and

 

J McC

 

SECOND APPLICANT

 

in respect of

 

The Adult - Mrs A

 

Incapacitated adult

 

 

Note

 

Background

 

This is an Application under the Adults with Incapacity (Scotland) Act 2000 in which the Applicants, J McC and R McC, seek an Order under Section 57 of the above Act appointing them as joint guardians with powers relating to the welfare of their mother, Mrs A (hereinafter referred to as "the Adult"). All parties were agreed as to the medical position. The Adult, who is 91 years of age, is diagnosed as having dementia. She previously lived alone in Galston and had been assessed as requiring home care services. Evidence of a gradual deterioration in her mental health became apparent as she required increasing family support due to short term memory loss and a decreasing ability to care for her personal needs in her home.

 

She was admitted to Crosshouse Hospital in February 2007, due to deterioration in her physical and mental health. She was having auditory hallucinations and exhibiting paranoid thoughts. These symptoms subsided and may have been due to infection. She was assessed and moved to Kirklandside Hospital in April 2007 during the assessment process. It was agreed that she was no longer able to live independently. She discussed the situation with her sons and decided to move into a care setting. She moved to Westpark Residential Home in June 2007.

 

The welfare powers sought are:-

 

(a)           to decide where the Adult should live;

(b)          to decide where the Adult should attend for medical and dental treatment, psychiatric and outpatient appointments and specialist clinics;

(c)           to consent or withhold consent to medical treatment for the Adult, where not specifically disallowed by the Act;

(d)          to have access to personal information concerning the Adult held by any body or organisation, such as medical records or personal files held by social work services or the National health Service;

(e)           to make decisions on the Adult's dress, diet and personal appearance;

(f)            to convey or instruct to convey the Adult to a place of residence specified by the Pursuer;

(g)           to convey or instruct to convey the Adult to her place of residence should she abscond.

 

The Application was originally received at Kilmarnock Sheriff Court on 5 March 2008 seeking the welfare powers as detailed above and to appoint the First and Second Applicants as financial guardians in respect of the Adult's affairs. There was no opposition from East Ayrshire Council to the granting of the financial guardianship but East Ayrshire Council opposed the granting of the Welfare Guardianship on the basis of the report from the Mental Health Officer.

 

The Application as is required in terms of Section 57 of the said Act was accompanied by two medical certificates in the prescribed form and a report by the Mental Health Officer which contained her opinion as to the general appropriateness of the Order sought and the suitability of the individuals nominated as guardians.

 

The Applicants are considered suitable to be appointed as joint guardians.

 

The report from the Mental Health Officer on form AWI(2) in Schedule 2 under the heading "Appropriateness of the Order applied for" is that the welfare powers sought in the Application would not be of benefit to the Adult having regard to the general principles set out in Section 1 of the said Act. It was accepted that the granting of financial powers was necessary in that the Adult had a home which she was unable to return to and which required to be sold and the proceeds thereafter invested for her best interests.

 

This was a case where the appointment of a Safeguarder was necessary and such an appointment was made on 4 April 2008 when the Application was warranted for intimation.

Miss Alison Kelly, Solicitor, James Guthrie and Company, Portland Road, Kilmarnock was appointed as a Safeguarder to safeguard the interests of the Adult and to convey her views insofar as ascertainable to the Court. Matters were thereafter continued to a proof in respect of the Adult's personal welfare on 19 June 2008 which was discharged as Miss Kelly, on 11 June 2008, applied to the Court to be sisted as a party to the action. Matters were thereafter continued on a number of occasions until finally proceeding to proof on 6 November 2008.

 

Safeguarder's Report

A report was lodged by Miss Alison Kelly, the Safeguarder, conveying the Adult's views, in so far as ascertainable.

 

The Safeguarder's report detailed that the Mental Health Officer had no concerns regarding the suitability of the proposed guardians and this indeed accorded with the Mental Health Officer's position in evidence.

 

The Safeguarder visited the Adult on two occasions. The Safeguarder observed the Adult with her sons and it was clear to the Safeguarder that she was close to both of her children and trusted them completely and was happy and content for them to make decisions on her behalf.

 

The Safeguarder found the Adult to be pleasant and able to discuss matters but was unclear as to the Adult's cognitive ability in that the Adult did not appear to remember her, (ie the Safeguarder's) first visit at all and did not seem to understand concepts such as a Guardianship Order.

 

In investigating the situation, the Safeguarder established that the Adult's place of residence is a residential home only and does not provide nursing care. If a resident's health deteriorates, they would require to be accommodated elsewhere, be that in a hospital or nursing home. This was a significant factor to be considered by the Safeguarder in relation to the Adult's ongoing welfare needs.

 

Having met with the Applicants, the Safeguarder assessed the Adult's sons as wishing to serve their mother's best interests by having a clearly defined role in relation to decision making, in particular, with respect to her place of residence. Both sons were concerned that if major decisions required to be made about their mother's care, these decisions would be delayed while court action was raised or other routes explored if no welfare guardian was appointed. The Safeguarder made application to the court to enter process as a party to the action and this was granted. Miss Kelly supports the Applicants application for a Welfare Guardianship.

 

Legal Framework

 

The Adults with Incapacity (Scotland) Act 2000 sets out at

S1 the General Principles and Fundamental Definitions

 

 

1(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.

 

1(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.

 

1(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.

 

Section 1(4)(a)(b)(c) and (d) of the Adults with Incapacity (Scotland) Act 2000 (hereinafter referred to as "the said Act") provides inter alia:-

 

1(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 views of the nearest relative [, named person] and the primary carer of the adult in so far as it is reasonable and practicable to do so;

(c)           the views of -

(i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention; and

(ii) any person whom the sheriff has directed to be consulted in so far as it is reasonable and practicable to do so; and

(d)        the views of any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible, in so far as it is reasonable and practicable to do so.

 

 

This should be read in conjunction with Section 59 (1) and (4) of the said Act which provides inter alia:-

(1)          (The Sheriff may appoint as guardian:-

(a)    any individual whom he considers to be suitable for appointment and who has consented to being appointed;

(b)   where the Guardianship Order is to relate only to the personal welfare of the Adult, the Chief Social Work Officer of the Local Authority ... ... ...

 

(4)          (In determining if an individual is suitable for appointment as a Guardian the Sheriff must have regard to:-

(a)    the accessibility of the individual to the adult and to his primary carer;

(b)    the ability of the individual to carry out the functions of guardian;

(c)    any likely conflict of interest between the adult and the individual;

(d)    any undue concentration of power which is likely to arise in the individual over the adult;

(e)    any adverse effects which the appointment of the individual would have on the interests of the adult;

(f)      such other matters as appear to him to be appropriate.

 

In the present case, I do not understand there to be any dispute as to J McC and R McC's suitability to act as Guardians. Thus the only matter at dispute is whether the order is appropriate in terms of the general principles at Section 1 of the said Act.

 

The Local Authority's position is that Section 59 has to be read in conjunction with Section 1(2) of the said Act which, in summary, provides that there should be no intervention in the affairs of an Adult unless the person responsible for authorising the intervention was satisfied that the intervention would benefit the Adult and that meant that the Court which authorised the intervention had to have the best interests of the Adult in mind.

 

It is the Mental Welfare Officer's opinion that the welfare powers sought in the proposed Application would not be of benefit to the Adult.

 

I heard evidence from the following witnesses, Dr McNulty, Consultant Psychiatrist; R McC and J McC; Eleanor Thomson, Manager of West Park Residential Home; and Miss Sym, Mental Health Officer.

 

All parties are agreed that the Adult is an incapax, suffering from dementia.

 

 

 

Applicants' Evidence

Dr Seamus McNulty, North West Kilmarnock Area Centre, Western Road, Kilmarnock.

 

Dr Seamus McNulty is the Adult's Consultant Psychiatrist. He last saw her on 4 November 2008. It is his opinion that she is incapacitated. She lacks capacity to make decisions, (1) with regard to finances and (2) has no capacity to decide on her welfare. Her mental capacity will get worse and her physical condition will deteriorate. Dr McNulty explained that he postulated this and the premise was on the basis that she is 92 years of age. He also indicated that she could experience a sudden deterioration.

 

In cross-examination, Dr McNulty confirmed that the Adult had never tried to decline medical attention nor indeed had she tried to leave the residential home. Dr McNulty was reluctant to discuss whether or not the Adult can take advice. HeShe simply advised the Court that the Adult lacks capacity on all these issues. He had conducted a minimum mental state examination in which she scored 11 out of 30. He explained that this is at the severely impaired end of the scale. Dr McNulty advised that it may be possible to invoke certain parts of the Act to obtain a treatment plan should there be any difficulty in reaching agreement as to the Adult's care. He believed this may be a lengthy process if there was a dispute, requiring, eventually, court involvement.

 

R McC.

 

R McC gave evidence. He indicated that he had a close relationship with his mother. She was now severely incapacitated and had been moved to a residential home. He continues to visit her regularly. He and his brother J McC were appointed financial guardians to their mother and they have invested that wisely for her benefit. They have not had any difficulties in dealing with any of the Health Care Authorities, Public Guardian, Mental Health Officer or Social Workers to date. They attend meetings fastidiously. R McC was, however, concerned that if they did not have a Welfare Guardianship then their mother could be moved somewhere they did not approve of. R McC was unhappy with the position that a doctor in consultation with all the carers could make a decision as regards his mother's welfare. He wanted to have positive input in his mother's care and wished to ensure her future comfort. He believes that this accords with his mother's wishes as whilst she was able to make decisions, she had advised both her sons that she trusted their decisions for her.

 

R McC accepted that his mother was well settled where she was and that only two issues of any potential conflict had arisen, (1) as to his mother's place of residence and (2) as to whether or not his mother needed inpatient care at Ailsa for assessment.

 

Both of these issues were resolved by agreement with his mother's carers. He did not believe that his mother could take the carers advice or make any decisions for herself. In effect, this left her vulnerable if he and his brother did not have any control over their mother's welfare. He had a fear that she would be moved somewhere where she would be unhappy. He thinks that there may come a time when she will need medical intervention and this will not be possible at her present home. He envisages that further problems are yet to arise.

 

R McC expressed the view that the present action in respect of the Welfare Guardianship had taken some thirteen months to get to proof and that he was concerned that there would be further delays in decision making, when necessary, if no Welfare Guardianship is ordered. He believed it was in his mother's best interests to have he and his brother appointed as Welfare Guardians. She would benefit from their positive input in that they were persons who had known her well and had taken her opinion when well and would balance her past interests and previously expressed wishes for the future.

 

 

 

 

 

 

 

J McC.

 

J McC, age 58, had more contact with his mother in that he lived nearer her for most of the time. He visits now twice per week. For many years his mother relied heavily on himself and his brother R McC. His mother's mental health deteriorated very rapidly and she had to be hospitalised, entering first Crosshouse Hospital and then Kirklandside Hospital to be assessed and was now settled at West Park Residential Home.

 

In general, everything has worked very well although there have been two areas of dispute, as indicated previously by his brother, namely (1) his mother's place of residence, whether it should be in Dalmellington and (2) whether or not his mother should be an inpatient at Ailsa for a Mental Health Assessment.

 

Both these matters had resolved by negotiation. J McC stressed that he has his mother's best interests at heart, he knows her best interests in that she spoke to him at length about her wishes prior to her illness deteriorating. He is concerned that should she require urgent medical treatment, there would be a delay as there is no one appointed to make decisions on behalf of his mother. There would have to be a meeting convened and all parties views taken. J McC wants to have major input into any decisions in respect of his mother's welfare and he bases any decisions he would make for his mother on how he dealt with her in the past.

 

J McC believes that all the powers are necessary in that they wish to be able to have the power to obtain or refuse medical help for the mother, they wish to be able to get any dental work done, they wish to see her dressed properly. They wish to decide her place of residence and they wish access to her medical records. Effectively, the granting of the welfare application would give legal effect to what both R McC and J McC were doing for their mother while she was physically incapacitated, but not mentally incapacitated. Their mother was happy that they were in control of her affairs. R McC believes that he does not have immediate control of his mother's affairs in that any decision would have to be the subject of agreement with the others involved in her care and if there was disagreement, various complaints procedures or other sections of the law would have to be invoked. J McC believes that this would be a long drawn out process and put his mother in the invidious position of perhaps having a delay in an important decision in her life. That would be of no benefit to her. He believed that it would be of benefit to her to have matters decided quickly, with her best interests at heart, without the need of other legal procedures.

 

Respondents' Evidence

Mrs Eleanor Thomson, c/o West Park Residential Home, Glasgow Road, Galston

 

I heard from Mrs Thomson, the care home manager at West Park Residential Home. It is her view that Mrs A was well settled within West Park. She likes her room, her view. She needs assistance to get up and to get washed and dressed, but otherwise she has no difficulties fitting in and co-operates well. She chooses what she eats from the lunch menu.

 

Her family visit regularly and if there is any difficulty, she telephones the family to discuss the situation.

 

The residential home has never had to restrain the Adult, she is co-operative and has never declined medical treatment in the past.

 

In her experience, there has only been one area where there was the potential for conflict and that was when it was suggested that the Adult was placed in Ailsa Hospital for assessment of her mental health difficulties. This, however, managed to be resolved by discussion. In cross-examination, Mrs Thomson accepted that if the Adult's physical condition deteriorated, they would be unable to give her an injection as they were not a nursing home. She has always taken her medication but if she decided to refuse, then there would have to be a discussion with the doctors and other interested parties. If injections were needed, then the Adult would have to move out of West Park Home.

 

Mrs Anne Sym, North West Kilmarnock Area Centre, Western Road, Kilmarnock

 

Mrs Anne Sym, Mental Health Officer, has been working for six years as a Mental Health Officer, but has been working in Adults with Incapacity for a period of twelve years. She trains the health board and social work staff in the legislation. She has a statutory duty to prepare reports for the Court in respect of any Welfare Application. She explained that she has to assess the suitability of proposed guardians. R McC and J McC are suitable guardians. She disputes, however, that any guardians are necessary.

 

It was her understanding of the legal principles that:-

(1)          A Welfare Order should be of benefit to the Adult;

(2)          The Adult's past needs should be taken into account in considering whether or not to make a Welfare Order;

(3)          The carers must also be given consideration.

 

Mrs Sym explained how she assessed the situation. She had a meeting with the Adult and she discussed the matters with her sons and looked at the particular powers sought. It was her view that it was not necessary to have the power to decide where the Adult should live as she is already placed somewhere where she is settled. It is inappropriate, in her view, as it is unnecessary. The legal powers will make no difference to Mrs A at present. Mrs Sym's position was that you cannot speculate as to what will happen in the future. There is no reason to believe she will need Welfare Guardians to take decisions for her. The guidelines given to Mental Health Officers in terms of Social Work Department's Guidelines, indicate that no order should be made unless it is necessary.

 

It is her view therefore that none of the powers is necessary as the Adult (1) had never refused treatment, (2) had always taken guidance on treatment, (3) there was no restriction on the family obtaining personal information if they went through the correct channels and (4) the family already make decisions on her dress, diet and appearance, (5) the Adult was in a residential placement where she was happy and there was nothing to suggest that she would refuse to take advice and attempt to leave her current placement, (6) nor was there any need to convey the Adult to a place of residence should she abscond.

 

The Mental Health Officer concluded that the Application would not be of benefit to the adult, as no intervention was required at this time. It would be inappropriate to make a Welfare Guardianship Order on matters which may possibly arise when there has been no evidence to suggest that the Adult would place herself at risk. She assessed the main concern as relating to a changing need for treatment and this she believed could be addressed by Part 5 of the said Act. The Welfare Guardian Application is not the least restrictive option in relation to the freedom of the Adult consistent with the purposes of the Order.

 

Part 5 at Section 47 of the Adults with Incapacity (Scotland) Act 2000 "provides authority to give to an adult with incapacity medical treatment aimed at maintaining or improving the physical or mental health of that adult".

 

The only other concern raised by the Applicants was in relation to the ability to provide services to their mother.

 

According to Mrs Sym, the power added by the Adult Support and Protection (Scotland) Act 2007 to the Social Work (Scotland) Act 1968 at Section 13ZA, gives the local authority the power to provide community care service including moving the adult to residential accommodation in terms of

"Section 13ZA (1) where -

(a)           a local authority have decided under Section 12A of this Act that an Adult's needs call for the provision of a community care service; and

(b)          it appears to the local authority that the Adult is incapable in relation to decisions about service, the local authority may take any steps which they consider would help the Adult to benefit from the service; and

Section 13ZA (2) which states that -

"Without prejudice to the generality of subsection (1) above, steps that may be taken by the local authority including moving the Adult to residential accommodation provided in pursuance of this part."

 

Therefore all future difficulties foreseen by the Applicants could be dealt with under Part 5 of the Adults with Incapacity (Scotland) Act 2000 and Section 13ZA of the Social Work Scotland Act 1968 as amended.

 

Authorities

 

Mr Quinn, for both Applicants and Mrs McKinlay for the Respondent, lodged their Authorities. I was referred to the following list of Authorities for the Applicants.

(1)          AWIS ACT (S) 2000.

(2)          Human Rights Act 1998.

(3)          European Convention on Human Rights.

(4)          Adults Support and Protection (S) Act 2007.

(5)          Social Work (Scotland) Act 1968 S13(Z)(A).

(6)          Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc (Rules) 1999 (Sect 3 and Rule 3 3.16.6(2)).

(7)          Muldoon, AW37/04 Glasgow Sheriff Court.

(8)          HL v UK European Court of 5.10.04.

(9)          EF and JF aw 214/07 Glasgow Sheriff Court.

(10)      North Ayrshire Council v JM 2004 SCLR 956.

 

And the following list of Authorities for the Respondent.

(1)          Adults with Incapacity (Scotland) Act 2000.

(2)          HMA -v- Switzerland (204) 38 ENH.R.R. 17.

(3)          HL -v- UK Application 45508/99.

(4)          Muldoon, Applicant 2005 SLT (Sheriff Court) 52.

(5)          Adult Support & Protection (Scotland) Act 2007, S64.

(6)          Code of Practice for Local Authorities exercising functions under the 2000 Act - 1^st April 2008.

(7)          Article 5, European Convention on Human Rights.

(8)          Mental Welfare Commission publication - Authorising significant interventions for adults who lack capacity (2004).

(9)          Mental Welfare Commission for Scotland publication - When to invoke the Adults With Incapacity Act (2005).

(10)      Letter by Scottish Executive to Chief Social Work Officers dated 30 July, 2004.

 

 

Submissions for the Applicants

 

Mr Quinn for the Applicants referred me to the evidence. It is clear from Dr McNulty's evidence that Mrs A suffers severe incapacity. It was the doctor's informed opinion that things could only get worse. Her two sons are recognised as being suitable Welfare Guardians. They can work together with anyone involved in their mother's care. Before their mother became mentally ill, her sons were her main carers. It can therefor be implied from the past wishes of Mrs A that her sons should be in charge of her care. The doctor also suggested that it was possible for Mrs A's health to rapidly deteriorate. The Council's position in opposition to the Application is that Part 5 of the said Act could be invoked in these circumstances should there be a dispute as to the Adult's care. The Applicants, however, dispute that this is the best method of dealing with their mother's care. Mrs Eleanor Thomson was their mother's care manager, in her evidence she states that she had no experience of how Part 5 of the Incapacity Act would be invoked in both a general sense and in a particular sense relating to Mrs A. Mrs Sym in her evidence also conceded that Section 13ZA of the Social Work (Scotland) Act 1968 as amended would not be immediately invoked given the guidance of the Scottish Office. Mrs Sym could also not answer the proposition as to what would happen in an emergency if there was no welfare regime in place. Mr Quinn, for the Applicants, suggested that this would result in the professional taking risks if they allowed treatment to take place without checking everyone is in agreement. Using Part 5 of the Adults with Incapacity (Scotland) Act 2000 and/or Section 13ZA of the Social Work (Scotland) Act 1968 as amended is an unwieldy system which should not, in Mr Quinn's submission be the way in which the Adult's health care or decisions regarding her welfare, should operate. It seemed to be both Mrs Sym's and Mrs Thomson's position that if there was a necessity for welfare intervention, then the Applicants could call for a meeting with the Authority which would be convened as soon as possible. Mr Quinn submitted, however, that this would result in more reports and more interference for Mrs A and therefor there were endless problems being stored up for the future. This surely could not be in the Adult's best interests. The Respondents' position is that the Court must look at minimum intervention. It is the Applicants' position that the minimum intervention is to have a Welfare Guardian appointed at this stage who could, when needed, take decisions on her behalf. Mr Quinn referred me to the case law in HL v UK European Court Decision of 5 October 2004 at Paragraph 89 Page 30, the important issue in deciding whether intervention is required appears to be about the deprivation of liberty. At page 31, the Court states that a person cannot lose their liberty without a legal regime being in place. Mr Quinn therefor suggested that it is not acceptable that no-one is lawfully responsible for the Adult in this case in respect of her welfare. He submitted that the Adult in the instant case has lost her liberty in the sense described in HL v UK European Court Decision of 5 October 2004. At Paragraph 94, their Lordships concluded that the Adult in the HL case had been deprived of his liberty in that he was not able to live on his own and could not leave his place of residence. Mr Quinn asked me to find that the Adult in the instant case had, indeed, been deprived of her liberty.

 

Mr Quinn then directed me to Sheriff Baird's decision in Muldoon, Applicant 2005 SLT (Sheriff Court) 52. Sheriff Baird also considered the European Legislation in the Muldoon which interprets the HL case. Mr Quinn suggested that the Muldoon case was on all fours with the instant case. In the Muldoon case there was also an independent report. However, it stated that Welfare Guardianship was not necessary. Sheriff Baird, however, despite the independent report decided that the Applicant in the Muldoon case had indeed lost his liberty and therefor required someone to make decisions on his behalf immediately and not on an ad hoc basis as suggested by the Respondent in the instant case.

 

Furthermore, in the case of NAC v JM 2004 SCLR 956 there was a competition between the Local Authority and the wife of an incapacitated person as and who should be appointed as the welfare guardian. The Sheriff concluded that the court has to have the best interests of the adult in mind and in considering this in conjunction with the provision of Section 1(4)(a)(b) and (d) which states that "the court ought to have regard to the views of the adult as expressed prior to his incapacity", the Court should decide that the Adult in the present case wanted her sons to take care of her welfare and it was in her best interests to have them appointed as Welfare Guardians.

 

Mr Quinn suggested that whilst the instant case does not have the competition element, it was in point in that there were two sons willing to be guardians and who were considered to be suitable by all parties.

 

Mr Quinn also referred me to the Academic Commentary from Adrian Ward in his address to the Law Society of Scotland conference in November 2006 at Paragraph 68. Mr Ward states therein that "I do not believe that the general principles require the powers conferred to be limited to those immediately necessary. It cannot be correct to require a succession of applications to meet needs which already have been identified". It would not be in the adult's best interests therefore to leave her with no one looking after her affairs.

 

Mr Quinn accepted that this article was published prior to Section 13ZA of the Social Work (Scotland) Act 1968 as amended being in force. He submitted that there was a probability of there being a disagreement among the parties as already two disputes had arisen. These disputes were admittedly resolved by discussion. Mr Quinn's position is that this may not always be the case. If there was disagreement, there would be further, perhaps extensive, interference in the Adult's life, which was not in her best interests. He suggested therefor that to avoid uncertainty in the Adult's life, the Applicants should be appointed Welfare Guardians. At the moment the Applicants have no lawful authority and it was clear that their mother would wish them to deal with her welfare rather than anyone else and this could be ascertained from her past actions.

 

Submissions by Miss Kelly, Safeguarder

 

Miss Kelly adopted the submissions by the Applicant's solicitor. She suggested that it was a matter of balancing minimum intervention with benefit for the Adult. Section 1(2) of the Act states that "There should be no intervention unless it will benefit the Adult". The Mental Health Officer's approach had been from the position that it was not of any benefit to the Adult. With respect to the Mental Health Officer's evidence, Miss Kelly suggested that this was the wrong premise. She suggested that if there were Welfare Guardians, there would be less direct interference in the Adult's life as regards decision making and that could only benefit the Adult.

 

The Mental Health Officer had made a great deal of the fact that there had been no real dispute between the Adult's sons and the carers in respect of the Adult's past needs and wishes of the Adult and concluded no intervention necessary. The Mental Health Officer accepts that the Adult has a great deal of trust in hers sons. Miss Kelly referred me to Section 1(4)(b) which states that "the views of the nearest relatives need to be taken into account". Miss Kelly suggested that these sections were not mutually exclusive but should be read in conjunction with each other. The Mental Health Officer had not considered this. The Adult's sons' views were that they should be appointed as Welfare Guardians.

 

Miss Kelly urged me to follow the decision in the Muldoon case, promulgated by Sheriff Baird. The Mental Health Officer had advised the court in her evidence that the guidance given to them is that that decision is simply to be ignored as it is not binding.

 

It is clear that the Mental Health Officer's position is that in terms of Section 1(3) it is not a measure sought ie the Welfare Guardianship is not a minimum intervention. Miss Kelly suggested that again the Court should consider whether or not it is likely that the Adult would be able to live independently again or make cognitive decisions. The answer to these questions is in the negative. The benefit to the Adult far outweighs any restrictiveness.

 

Miss Kelly's position is that she agreed with the Applicants in terms of the powers contained within Sections A, B, C, D. However, powers contained in Sections E, F and G were not particularly relevant and therefor she saw no reason for these to be granted at this stage.

 

Submissions by Mrs McKinlay for the Respondent

 

Mrs McKinlay's position is that the Adult's with Incapacity (Scotland) Act 2000 Section 57(4) requires a report from a Mental Health Officer to be submitted in connection with any Welfare Guardianship Application as to suitability of guardians and appropriateness of the Order. Mrs McKinlay confirmed that the Mental Health Officer had no difficulties with either of R McC or J McC as guardians for their mother.

 

In terms of Section 58 of the said Act, the Sheriff "may" grant the Application. Mrs McKinlay suggested, however, that the Court has to be satisfied having regard to the principles of the Act and the principles of the Act are contained in Section 1(2) and Section 1(4)(a) and (b) and (c) and (d) quoted earlier.

 

The Court must consider the least restrictive option. The question posed by Mrs McKinlay is "Should individuals be subject of any intervention unless there is a need?". She contends that the Adult is happy in her accommodation. There are no plans to move her. She has never attempted to leave the accommodation. She has given information to her carers that she likes her room. The carers are buying clothes for her and she has never refused medical treatment.

 

From the evidence of the Mental Health Officer it was clear that when the Adult was approached about attending hospital, she advised that she would go like anyone else who needed to go to hospital, therefore no intervention is necessary.

 

I queried this position with Mrs McKinlay, as the Adult is an incapax and it is difficult to know whether or not she understands, the implications of the question and indeed her answers thereto.

 

Mrs McKinlay then referred me to the supplementary paper entitled "Adult with Incapacity - When to Invoke the Act" published by the Mental Welfare Commission for Scotland, which suggests that a more selective approach to Guardianship may be appropriate.

 

Mrs McKinlay also stated that the Adult's sons had given evidence that they had no difficulties in getting information and that they could talk to staff, therefore at present there was no need for intervention.

 

She accepted that two issues had arisen of potential dispute in the recent past, (1) being the Adult's accommodation and (2) attending Ailsa Hospital. These matters had been resolved without recourse to court. Mrs McKinlay accepted that the Adult had relied on her sons in the past, and she agreed that her views can be taken from them. She suggested that the question the Court should answer is "What benefit is there to the Adult in terms of the Order?". She suggested that it was not possible for the Court to conclude that the Welfare Guardianship is a benefit to her in the future. The powers are not reasonably likely to be needed, therefor that test is not met and the Application should be refused.

 

Mrs McKinlay submitted that the "what if" questions were not predictable. She accepted that the Adult's condition is progressive and terminal. Her condition may deteriorate and she may need (1) medical intervention, (2) a change of residence, but none of these is certain. She conceded that it is likely that some intervention in the Adult's affairs may be necessary, as the Adult is a frail 91 year old lady.

 

Mrs McKinlay then made reference to the Code of Practice for Local Authorities exercising functions under the 2000 Act dated 1 April 2008. She submitted that the Court must consider the Code of Practice.

 

She also referred me to Article 5 of the European Convention on Human Rights which states that "Everyone has the right to liberty and security of person".

 

There are, of course, cases in which deprivation of liberty is necessary but it must be in accordance with a procedure prescribed by law.

 

It was her view, however, that the Adult in the instant case is not "deprived of her liberty" in the sense of Article 5, as she is compliant with her regime. She, it is argued by the respondents, is only restricted in her movements.

 

Mrs McKinlay referred me to two European cases where the Adult was compliant but considered not to be deprived of liberty. Deprivation of liberty is also discussed within the Code of Practice for Local Authorities at Annex A Pages 115, 116 and 117. She referred me firstly to the case of HMA v Switzerland (2004) 38 EHRR. I do not believe that this case is in point as the Adult in that case had capacity. Within HMA v Switzerland the case of Nielsen v Denmark (1989) II EHRR is discussed. It also decided that there was no deprivation of liberty. This case can be distinguished in its facts from the present case, in my view. In Nielsen v Denmark a twelve year old boy, at his mother's request, was placed in a psychiatric ward of a State Hospital for five and a half months. His placement was only temporary as he was in need of treatment and the treatment administered was curative, aiming at securing his recovery. It was decided that his liberty was restricted only and not deprived. In the instant case, the psychiatrist's evidence is clear that the Adult's condition is permanent and will deteriorate. She cannot leave.

 

Miss McKinlay accepted that in HL v UK 5 October 2004, it was held that there was a deprivation of liberty in similar circumstances to the instant case.

 

Mrs McKinlay urged me to consider whether or not the Adult is deprived or restricted in the instant case. In HL v UK, the Adult couldn't consent and the Health Care Professionals had complete and effective control over his care and movement. Miss McKinlay thought HL v UK could be distinguished in its facts from the instant case in that the Adult here was compliant and appeared to consent to suggestions about her day to day welfare.

 

Mrs McKinlay's suggested that the test should be "Whether there would be benefit in the granting of the Order". She suggested that there is no benefit as at present all parties work together and there is no basis of a dispute. She does not believe that any irresolvable dispute will arise in the future on the basis that the two disputes which have previously arisen were resolved amicably.

 

This, in my view, is naïve, two disputes have already arisen and it is irrelevant in my view that they were resolved without recourse to further measures. There would be a direct benefit to the Adult of her sons, who are suitable guardians, having the ability to make decisions immediately in line with her past wishes.

 

Mrs McKinlay's fallback position was that if I took the view that the Adult was deprived of her liberty, and any decisions were required, these could be taken under Part 5 of the 2000 Act. Put simply, Part 5 says that if the doctor makes a decision for medical intervention, if not opposed, it can proceed, but if opposed the matter would have to return to court. Furthermore, new measures existed in terms of Section 13ZA which has been added to the Social Work (Scotland) Act 1968 which states that if all parties are agreed, the Social Work Department is given the express right to move the Adult without other recourse to court. Mrs McKinlay referred to the Mental Health Officer's evidence who was of the opinion that part 5 of the said Act and Section 13ZA of the Social Work (Scotland) Act 1968 were the answer to all difficulties and therefor the Application should be refused on the basis that (1) the Adult has not been deprived of her liberty, (2) there should be no intervention in keeping with the principles of the 2000 Act, (3) it is not of any benefit to the adult.

 

 

Decision

 

The legal principles for consideration by the Court are those set out in Section 1 of the Adults with Incapacity (Scotland) Act 2000 already set out at page 5, to be read in conjunction with Section 59(1) and (4) of the said Act.

 

Dispute arises in this case:-

In terms of (A) Section 1(2) of the said Act which states that "there should be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention, ie the Court, is satisfied that the intervention will benefit the adult, and that such benefit cannot reasonably be achieved without the intervention".

And;

In terms of (B) Section 1(3) where an intervention is required, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent for the purpose of the intervention.

 

In the instant case, a financial guardianship has already been granted, with no objection, by the local authority, as it was obvious that intervention in the financial affairs of the adult was required.

 

The issues in this case are therefor whether or not the appointment of a welfare guardian or guardians is necessary and whether it is the least restrictive option.

 

To determine these issues, I have considered all authorities produced, the Statutes referred to, the case law; the European Convention on Human Rights and the Code of Practice for local authorities.

 

It is my view that the questions which must be considered and answered are as follows:

(1)   Has the Adult been deprived of her liberty?

(2)   Should there be intervention in keeping with the principles of the 2000 Act?

(3)   Is such intervention of benefit to the Adult?

(4)   Are the suggested guardians suitable?

 

(1) Deprivation of Liberty

I considered Article 5 of the European Convention on Human Rights, which states that all individuals have a right to liberty and security, and the case law produced by all parties. The case which is on all fours to the instant case is the case of Muldoon. I agree with Sheriff Baird's conclusion in that case that where an Adult is compliant with a regime but legally incapable of consenting to or disagreeing with it, as is the case here, then the Adult is deprived of their liberty in contravention of Article 5(1) of the European Convention on Human Rights and that therefor that step should not be taken without express authority governing it. I agree with Sheriff Baird's conclusion that in such a situation, the appropriate statutory intervention is a Guardianship Order which is, in my view, the least restrictive option under the Act in the particular circumstances of this case. The Adult in this case requires safeguards, both statutory and regulatory, and a statutory and regulatory framework to protect her.

 

In consideration of the European cases produced, it is my view that HMA v Switzerland can be distinguished from the instant case in that the Adult in HMA v Switzerland had capacity.

 

The case of Nielsen v Denmark referred to by the Respondents involved the placement of a twelve year old boy in a psychiatric hospital, it too can be distinguished as it was a temporary measure.

 

It was stated in HMA v Switzerland that in order to determine whether there has been a deprivation of liberty, the starting point must be the situation of the individual concerned and account must be taken of a range of factors such as the type, duration, effect and manner of the implementation in question. The distinction between a deprivation of and restriction of liberty is merely one of degree or intensity, not one of nature of substance. It is my view that as in the case of Muldoon, the Adult in the instant case is legally incapable of consenting to or disagreeing with the regime and this therefor must result in the deprivation of her liberty. She cannot leave and this is a permanent situation. The Adult in the instant case has not tried to leave the home or refuse medical assistance so far, but if she had done so, there would have to be some other intervention and she is therefor effectively detained which amounts to a deprivation of liberty.

 

Mrs McKinlay, in her submissions, sought to distinguish Sheriff Baird's decision in Muldoon from the instant case in that the Adult had never been restrained. Mrs McKinlay, however, accepted that the Adult could never leave the residential home which, in my view, is de facto deprivation of liberty and detention. Mrs McKinlay pressed her point by suggesting that the Adult has choices in her day to day living. I queried whether the Adult was capable of exercising them. She conceded that from the psychiatrist's evidence, the Adult is incapable of exercising any meaningful choice.

 

I therefore conclude that the Adult in the instant case has been deprived of her liberty.

 

(2)          Is intervention in keeping with the principles of the 2000 Act.

This relates to the question as to whether or not intervention is in the best interests of the Adult. Mrs McKinlay, in her submission, stated that the decision in Muldoon and indeed in the various articles referred to had all been prior to the implementation of Part 5 of the said Act which allowed a medical practitioner with agreement to make decisions about the medical treatment for the Adult and Section 13ZA of the Social Work (Scotland) Act 1968 which allows the Social Work Department to change the Adult's place of residence.

 

Part 5 of the said Act states that "Section 47 of the said Act, applies when any of the persons mentioned in sub-section 1(b) (ie the medical practitioner primarily responsible for the treatment of the Adult) is of the opinion that an Adult is incapable in relation to a decision about the medical treatment in question and has issued a certificate to this effect, that person shall have during the period specified in the certificate, authority to do what is reasonable in the circumstances in relation to the medical treatment in question, to safeguard or promote the physical and mental health of the Adult". This at first seems to be persuasive in respect of the Respondents' position, but if there is opposition from interested parties, such medical intervention could not proceed and the matter would have to return to court for a decision.

 

It is a similar position with the further new measures which were introduced in terms of Section 13ZA of the Social Work (Scotland) Act 1968, which allows the social work department to change the residence of the Adult without other recourse to the Court. Yet again, however, any interested parties may oppose change of residence and the matter would have to return to the Court for a decision.

 

As there has already been two disputes among the interested parties over the Adult's welfare, it is my view Part 5 of the said Act and Section 13ZA of the Social Work (Scotland) Act 1968 should not be relied on a providing the appropriate safeguard for the Adult.

 

She is entitled to have decisions about her welfare made quickly on her behalf by those she trusted in the past to look after her welfare.

 

It is my view, that intervention is necessary in the particular case and is in keeping with the principles of the 2000 Act.

 

(3) Is intervention of benefit to the Adult.

Mrs McKinlay again suggested that the new measures referred to above would protect the Adult and allow decisions to be made on her behalf. However, two disputes have already arisen. These disputes have been resolved by agreement but that is not to say this would happen in the future. It is my view that the best interests of the Adult would be served by allowing her sons to take decisions for her. Section 1(4)(a) of the Adults with Incapacity (Scotland) Act 2000 indicates that the present and past wishes and feelings of the Adult, so far as they can be ascertained, must be taken into account. I heard evidence from the Adult's two sons that it was their mother's wishes that they should deal with all of her affairs. This was not disputed by the Respondent. Further, in terms of Section 1(4)(b), the views of the nearest relative must also be taken account of and, again, the Adult's two sons indicated that they wished to be appointed welfare guardians. These sections are not mutually exclusive, but should be read in conjunction with each other. As submitted by Miss Kelly, if welfare guardians are appointed, then there will be less direct interference in the Adult's life as regards decision making and this is of benefit to the Adult. In terms of these sections, it is my view that intervention in the form of the appointment of welfare guardians would be of benefit to the Adult when considering her own past wishes.

 

(4) Suitability of the Guardians

Section 1 of the said Act should be read in conjunction with Sections 59(1) and (4) in relation to the suitability of the guardian. There is no dispute among the parties as to both R McC and J McC's suitability to act as joint guardians. I heard their evidence and I conclude that the Applicants are suitable guardians.

 

Having considered the evidence and the authorities produced in this case, I accept the submissions of the Applicants and Miss Kelly that the instant case is on all fours with the Muldoon case and with HL v UK 5 October 2004, in that the Adult has been deprived of her liberty. The new measures are no answer in that there is still the likelihood of dispute. The Court has to take cognisance of whether the intervention is of benefit to the Adult and in this respect I accept Miss Kelly's submission that it is in the best interests of the Adult that there should be fewer interventions in her life and that the way to secure this is to grant the guardianship order. The granting of a guardianship order now will mean that there will be less direct interference in the Adult's life. I have taken into account the past wishes of the Adult and those of her nearest relatives in coming to my decision. As in Muldoon, it is my view that in the case of the incapable but compliant Adult, the least restrictive option is one which grants statutory powers of guardianship. This would benefit the Applicants' mother and such benefit could not be achieved without intervention. The new measures suggested by Mrs McKinlay in terms of Part 5 of the said Act and Section 13ZA of the Social Work (Scotland) Act 1968 as being the answer to any dispute still allow for challenge and this cannot be held to be in the Adult's best interest. I do not accept that no intervention is the best solution in the instant case. Any further medical intervention, any change of residence, would have to be dealt with under Part 5 of the said Act or under Section 13ZA of the Social Work (Scotland) Act 1968, which are open to challenge. Both would involve further intrusions into the Adult's life by her sons, a safeguarder, further interviews by medical personnel and if it could not be resolved, a further application to Court. All of this would leave the Adult whose liberty is deprived in an invidious position.

 

In the instant case, I am satisfied (1) that the intervention will benefit the Adult and that that benefit cannot reasonably be achieved without the intervention; (2) that any intervention which is being made is the least restrictive option in relation to the Adult's freedom, consistent with the purpose of the intervention in terms of Section 1(3) of the said Act; and (3) that in determining whether that intervention is to be made, I have taken account of the past and present wishes of the Adult, the views of the nearest relative and the primary carer and the views of any other person appearing to me to have an interest, all in terms of Section 1(4)(a)(b) and (d). I construe the last provision as including the views of a safeguarder.

 

For the reasons stated, I am satisfied that the intervention will benefit the Adult and that that benefit cannot reasonably be achieved without it. I believe that granting the powers sought within the formal framework of guardianship is the least restrictive option.

 

Having decided that welfare guardians should be appointed, I must thereafter consider what powers are required under the guardianship order. I heard from the Applicants that all powers craved were sought.

 

I accept the proposition that the Applicants, in order to properly order the affairs of the Adult, should have power in terms of Crave 1A to decide where the Adult should live.

 

In terms of Crave 1B, the Applicant should have the power to decide where the Adult should attend for medical and dental treatment, psychiatric and outpatient appointments and specialist clinics where this will benefit her. They should also have the powers sought in terms of crave 1C to consent or withhold consent to medical treatment for the Adult where not specifically disallowed by the Act. The guardians know the Adult's past wishes.

 

I do not accept, as previously stated, that it would be acceptable for any medical intervention to be dealt with in terms of Part 5 of the said Act, as this would be on an ad hoc basis and subject to challenge and the cost and inconvenience of returning the matter to Court in disputed issues is not of benefit to the Adult, indeed, for such important issues as medical intervention and place of residence to be dealt with on an ad hoc basis, is not acceptable. Certainty is required in approach and the only way to ensure this is to grant the powers sought in terms of 1A, B and C of the guardianship application.

 

Furthermore, I accept the proposition that the Applicants, in order properly to order their mother's affairs, should have access to such information as they seek in terms of Crave 1D.

 

I accept that the Applicants should make decisions in the Adult's dress, diet and personal appearance as they are the ones who can express her past views and wishes in terms of Crave 1E.

 

The Adult is in place of residence but that residence cannot provide medical treatment and the Adult may require to move in the future. I therefor accept that the guardians should have the powers sought in terms of Crave 1F to convey or instruct to convey the Adult to a place of residence specified by them. Further, on the basis that the psychiatrist indicated that the Adult is at the extreme end of the scale of dementia, I believe that the guardians should have the power as sought to convey the Adult to her place of residence should she abscond in terms of Crave 1G.

 

I accept that the joint Applicants here satisfy all the criteria listed in Section 58 and that they are suitable persons to be appointed as guardians. I am satisfied for the reasons stated that no other means provided by or under this Act, or in terms of Section 13ZA of the Social Work (Scotland) Act 1968 would be sufficient to enable this Adult's welfare to be safeguarded and promoted.

 

I shall grant the order sought. I have issued in accordance with the practice of and the requirements of the OPG, a separate interlocutor appointing the Applicants to be joint guardians of the Adult with the powers they seek in regard to welfare matters in the following terms:-

 

"Having considered the application and productions and having heard parties thereon at proof, grants the Application and Appoints R McC and J McC to be joint welfare guardians to Mrs A for an indefinite period from this date in terms of part 6 of the Adults with Incapacity (Scotland) Act 2000 with the following functions and duties:

a.       To decide where Mrs A should live;

 

b.      To decide where Mrs A should attend for medical and dental treatment, psychiatric and outpatient appointments and specialist clinics where this will benefit her;

 

c.       To consent or withhold consent to medical treatment for Mrs A, where not specifically disallowed by the Act;

 

d.      To have access to personal information concerning Mrs A held by any body or organisation, such as medical records or personal files held by social work services or the National health Service;

 

e.       To make decisions on Mrs A's dress, diet and personal appearance;

 

f.        To convey or instruct to convey Mrs A to a place of residence specified by the Pursuer;

 

g.       To convey or instruct to convey Mrs A to her place of residence should she abscond;

 

 

and meantime, reserves the question of expenses and Authorises the public guardian to issue a certificate of appointment."

 

I was not addressed on the question of expenses and appoint the matter for a hearing on expenses on 11^th March 2009 at 10.00 am.

 

OmeH

 

KILMARNOCK: 26 February 2009