Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

AW38/07

 

 

 

Act: Clarke, Solicitor, The City of Edinburgh Council.

Alt: McGinty, LSA Brown & Co, Solicitors, Edinburgh.

 

 

Edinburgh, 30^th September 2010

 

The sheriff, having resumed consideration of the cause, finds in fact:

 

[1] The respondent was born in 1971. He is the eldest of three children.

 

[2] The respondent went to an ordinary school but had problems there. He then went to Agricultural College in Dumfriesshire, but was subject to severe bullying and had to leave. He then lived by himself for some years but became increasingly isolated and failed to cope living on his own in a flat in Edinburgh.

 

[3] He was admitted to the Royal Edinburgh Hospital in about May 2001 as an emergency with suicidal ideation and a strong desire to harm himself. He was diagnosed as having a neuro-developmental disorder, Asperger's syndrome. He was found not to be suffering from a secondary depressive illness. He remained at the Royal Edinburgh Hospital for about six months. He was under the care of Dr Alan Carson, consultant psychiatrist. He was discharged in about November 2001.

 

[4] A placement was obtained for the respondent at Daybreak House, Edinburgh. This was sheltered accommodation. This quickly failed when he returned to his old flat. The respondent refused all attempts to help him there. He again became isolated.

 

[5] On 12^th March 2002 an application for guardianship was submitted under the Mental Health (Scotland) Act 1984, section 37. Dr Carson submitted a report in support of that application. The application was granted on 16^th May 2002. The guardianship expired on 17^th November 2002.

 

[6] A further application for guardianship was made under the Adults with Incapacity (Scotland) Act 2000, section 57. Dr Carson again submitted a report in support of the application. It was granted on 23^rd January 2003 for a period of 3 years. The respondent was then moved to supported accommodation in Greenhill Terrace, Edinburgh. This was supported by Penumbra, an organisation which specialises in assisting people with mental health problems. However, they do not specialise in autistic spectrum disorders, which includes those with Asperger's syndrome. It was the best form of supported accommodation then available. There were problems with the respondent's self-care, personal hygiene and with his behaviour in shared spaces there. There were particular problems in relation to his lack of self-care of his feet to the point where they had suppurating sores. He would be ejected from public houses and cafes due to the smell coming from him. There were also problems with his behaviour towards staff at Greenhill Terrace. They felt threatened and intimidated by him. They attempted to engage with him, but their attempts were unsuccessful. He persistently refused help.

 

[7] Said guardianship expired on 22^nd January 2006. The respondent remained at Greenhill Terrace at this stage. However, a decision was then taken to close the supported accommodation there. The respondent wanted to move to a shared student flat. The then mental health officer in relation to the respondent arranged alternative supported accommodation for him at 18 Gilmore Place, Edinburgh which was also run by Penumbra. However, he refused to move there. As a result, a further application for guardianship was made in about June 2007. Dr Carson again submitted a report in support of the application. An interim guardian was appointed on 19^th June 2007. The respondent was then moved to the supported accommodation at 18 Gilmore Place on about 14^th July 2007. The application for guardianship was granted on 20^th August 2007 for a period of three years.

 

[8] The respondent does not fall into the category of persons with Asperger's syndrome who have learning difficulties.

 

[9] On 7^th December 2007 the respondent was served with a notice to quit the tenancy at 18 Gilmore Place, Edinburgh. This was due to persistent problems with his personal hygiene and behaviour towards fellow residents and staff. The condition of his room there fell below the standards Penumbra considered the Care Commission would tolerate. Attempts made by staff to engage with him continued to be rebuffed by the respondent. He did not wash himself or his clothes. He smelled offensively. His odour permeated the whole house. He masturbated in communal areas. He would expose himself. Other residents felt intimidated by him. In the event, the notice to quit was not insisted in as Penumbra was concerned about what would happen to the respondent if he was evicted. However, these problems continued.

 

[10] Dr Carson again assessed the respondent on 16^th June 2010. The respondent was again found to have a neuro-developmental disorder, Asperger's syndrome, which presented with a deficit of metacognition (and a consequent deficit in insight) and a receptive language disorder (a disorder in the ability to understand information coming in to him). This is a primary disorder of brain development. The primary cognitive deficits are to do with executive dysfunction and "theory of mind". This is also known as metacognition. It is the ability to see oneself as others would and to estimate how another person views a situation. The disorder of metacognition, and consequent deficit in insight, is a disorder of the intellectual capacity to reason and form a balanced judgement. This has devastating effects on social functioning. He cannot understand the social consequences of his actions. The respondent cannot understand decisions fully. The consequence is that he cannot adequately look after himself. The respondent's condition is lifelong and static.

 

[11] The prospects of the respondent coping with independent living are very low. He does not have the social skills to share an environment with someone else. It is highly unlikely that the respondent would co-operate or engage with voluntary supports such as a home help service or visiting support. There would be significant risks to the respondent's health and welfare in the absence of guardianship. In the absence of guardianship there would be a real risk of deterioration to the extent of the respondent again contemplating suicide.

 

[12] New accommodation has been identified for the respondent in a single person flat in "core and cluster" supported accommodation at 59/2 Blackfriars Street, Edinburgh. He would be supported there by Autism Initiatives. This is a specialist agency for people on the autistic spectrum and with Asperger's syndrome. He would be in close proximity to specialist staff, a communal area and to other residents with similar problems. The accommodation there would be better suited to his needs and would be of benefit to him.

 

[13] His parents, brother and sister are supportive of the proposal to move the respondent to the new accommodation, as are Penumbra and the applicant. The respondent is opposed to a move there and to a continuation of the guardianship. He cannot remain at his current placement at 18 Gilmore Place. He will therefore have to move out of that accommodation. He has been there since 14^th July 2007. There is a three year time limit for people to stay there. This period has therefore now been exceeded by the respondent. He will benefit from a continuation of the guardianship and a move to the new accommodation by being given a safe and clean environment in which to live.

 

[14] The guardianship has been of benefit to the respondent and will continue to be of benefit to him.

 

Finds in Fact and in Law:

 

[1] That the respondent is incapable in relation to decisions about, and of acting to safeguard or promote his interests in, his personal welfare, and is likely to continue to be so incapable.

 

[2] That no means by or under the Adults with Incapacity (Scotland) Act 2000 other than guardianship would be sufficient to enable the respondent's personal welfare to be safeguarded or promoted.

 

[3] That the grounds for appointment of the applicant as guardian to the respondent continue to fulfilled.

 

[4] That the interests of the respondent in his personal welfare cannot satisfactorily be safeguarded or promoted otherwise than by guardianship.

 

[5] That a guardianship order will benefit the respondent and such benefit cannot reasonably be achieved without that intervention.

 

[6] That an order in the terms sought by the application in crave 1 (a) and (b) of the minute for renewal, no 10 of process, as amended would be the least restrictive option in relation to the freedom of the respondent, consistent with the purpose of the intervention.

 

[7] That the respondent has not complied with a decision of the guardian as to the place of residence of the respondent and he might reasonably be expected to comply with said decision.

 

[8] That the making of an order and the granting of a warrant in terms of section 70 of the 2000 Act would benefit the respondent and such benefit could not reasonably be achieved without that intervention.

 

[9] That an order and warrant in the terms sought by the applicant in the minute, no 8 of process, would be the least restrictive option in relation to the freedom of the respondent, consistent with the purpose of the intervention.

 

THEREFORE, under sections 60 and 74 of the Adults with Incapacity (Scotland) Act 2000, GRANTS renewal and variation of the guardianship order made on 20 August 2007 appointing the Chief Social Work Officer, Health and Social Care, The City of Edinburgh Council, Waverley Court, 4 East Market Street, Edinburgh as guardian to the respondent, currently residing at 18 Gilmore Place, Edinburgh for a further period of three years upon the issue to him by the Public Guardian of a certificate of continuation of the appointment in terms of part 6 of the said Act with the following powers: (a) power to decide where the respondent should reside and (b) power to decide who the support providers and to authorise their entry into the respondent's place of residence to allow them to clean his residence, and AUTHORISES the Public Guardian to issue to the applicant a certificate of continuation of the appointment; MAKES an Order under section 70 of the said Act ordaining the respondent to implement the decision of the applicant to move him to another place of residence and GRANTS warrant to a constable (i) to enter any premises where the respondent is or is reasonably supposed to be and (ii) to apprehend the respondent and to remove him to such place as the applicant may direct; quoad ultra repels the pleas-in-law for the respondent in the minute for recall, number 6 of process; sustains the pleas-in-law for the applicant in the answers to the minute for recall and accordingly dismisses crave 1 of the respondent's minute for recall, and decerns.

 

NOTE

 

Introduction

 

[1] On 20 August 2007 an order was granted under section 57 of the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act") appointing the applicant as guardian to the respondent for a period of three years with the single power to decide where the respondent should reside.

 

[2] In early March 2010 the applicant lodged an application, no. 8 of process, seeking an order under section 70(1)(a) of the 2000 Act ordaining the respondent to implement the decision of the applicant to move him to an alternative place of residence and a warrant under section 70 (1)(b) of the 2000 Act authorising a constable to enter any premises where the respondent is and to apprehend and remove him to such place as the applicant as guardian may direct.

 

[3] At the end of March 2010 a minute, no. 6 of process, was lodged on behalf of the respondent seeking recall of the guardianship order in terms of section 71(1)(c ) of the 2000 Act. A first order for intimation and service of both the application, no. 8 of process, and the minute, no. 6 of process, was granted on 29^th March 2010. Answers opposing the minute for recall were thereafter lodged on behalf of the applicant.

 

[4] In June 2010 a further minute, no. 10 of process, was submitted on behalf of the applicant under sections 60 and 74 of the 2000 Act seeking renewal of the guardianship order granted on 20 August 2007 with the power to decide where the respondent should reside and variation of the order by adding an additional power to decide who the support providers are and to authorise their entry into the respondent's place of residence.

 

[5] No formal answers were lodged in relation to the minute, no. 10 of process. However, it was agreed that the minute should be heard at the same evidential hearing as had already been fixed in relation to the opposed minute for recall. The Sheriff Principal, by interlocutor dated 1 July 2010, further appointed the application, no. 8 of process to be determined following the said evidential hearing.

 

[6] Consequently, all three minutes and applications, nos. 6, 8 and 10 of process, were before the court at the evidential hearing which took place over a period of four days.

 

[7] The applicant led evidence from three witnesses, namely Dr Alan Carson, consultant neuro-psychiatrist, Mr Callum Hendry, mental health officer, and Mr James Morrice, support manager at the respondent's current supported accommodation. Evidence was also led on behalf of the respondent from Dr Colin Preshaw, consultant psychiatrist (retired), and from the respondent himself.

 

[8] There was then a further By Order hearing on 10^th September 2010 for the court to be further addressed on the terms of crave 1(b) of the minute for renewal, no. 10 of process. At this stage, the applicant sought, and was granted, leave to amend the terms of crave 1(b) by adding after the word "residence" at the end thereof the words: "to allow them to clean his residence."

 

 

The statutory framework

 

[9] The applicant's initial application for guardianship in 2007 sought an order under 57 of the 2000 Act appointing the Chief Social Work Officer for the City of Edinburgh Council as guardian to the respondent.

 

[10] Section 57 provides, so far as material:

 

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

 

[11] Section 58 then provides, so far as material:

 

"(1) Where the sheriff is satisfied in considering an application under section 57 that -

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

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

he may grant the application.

 

"(2) In considering an application under section 57, the sheriff shall have regard to any intervention order or guardianship order which may have been previously made in relation to the adult, and to any order varying, or ancillary to, such an order."

 

The words "he may grant the application" at the end of the section 58(1) make it clear that, if the two conditions are satisfied, the granting of the application is a matter within the discretion of the sheriff.

 

[12] Section 60 provides, so far as material:

 

"(1) At any time before the end of a period in respect of which a guardianship order has been made or renewed, an application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such an application is so made, the order shall continue to have effect until the application is determined...

 

"(4) Section 58 shall apply to an application under this section as it applies to an application under section 57; and for the purposes of so applying that section-

(a)    references to the making of a guardianship order and the appointment of a guardian (however expressed) shall be construed as references to, respectively, the renewal of the order and the continuation of appointment;

(b)   for subsection (4) there shall be substituted-

"(4) Where the sheriff grants an application under section 60, he may continue the guardianship order for a period of 5 years or for such other period (including an indefinite period) as, on cause shown, he may determine."

 

[13] Section 74(1) provides, so far as material:

 

"The sheriff, on an application by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of the adult, may vary the powers conferred by the guardianship order and may vary any existing ancillary order...

 

"(3) In considering an application under subsection (1), the sheriff shall have regard to any intervention order or guardianship order which may have been previously made in relation to the adult or any other order varying such an order, and to any order ancillary to such an order."

 

[14] Section 70(1) provides:

 

"(1) Where any decision of a guardian with powers relating to the personal welfare of the adult is not complied with by the adult, and the adult might reasonably be expected to comply with the decision, the sheriff may, on an application by the guardian-

 

(a)    make an order ordaining the adult to implement the decision of the guardian;

(b)   where the non-compliance relates to a decision of the guardian as to the place of residence of the adult, grant a warrant authorising a constable -

(i)                  to enter any premises where the adult is, or is reasonably supposed to be;

(ii)                to apprehend the adult and to remove him to such a place as the guardian may direct."

 

As with section 58(1), the word "may" in the opening words of this subsection indicates that, if the condition in the subsection is satisfied, the granting of the application under section 70(1) is a matter within the discretion of the sheriff.

 

[15] Section 71(1) provides, so far as material:

 

"The sheriff, on an application made to him by an adult subject to guardianship or by any other person claiming an interest in the adult's property, financial affairs or personal welfare, may -

 

"...(c) recall a guardianship order or otherwise terminate a guardianship if he is satisfied-

(i)    that the grounds for appointment of a guardian are no longer fulfilled; or

(ii)   that the interests of the adult in his property, financial affairs or personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship,

and where an application under this subsection is granted, the sheriff clerk shall send a copy of the interlocutor to the Public Guardian."

 

[16] Section 1(6) provides:

 

"(6) For the purposes of this Act, and unless the context otherwise requires -

"adult" means a person who has attained the age of 16 years;

"incapable" means incapable of -

(a)    acting; or

(b)   making decisions; or

(c)    communicating decisions; or

(d)   understanding decisions; or

(e)    retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder or inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature of otherwise); and

"incapacity" shall be construed accordingly."

 

[17] Section 1(1) also provides: "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." This therefore includes all three of the minutes and applications, nos. 6, 8 and 10 of process, now before the court.

 

[18] The general principles set out in section 1 are as follows:-

 

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

 

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

 

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

 

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

(b) the views of the nearest relative 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; ..."

 

 

Application of the statutory framework

 

[19] I now turn to the application of this statutory framework to the three applications before the court. As regards, first, the application for renewal and variation of the guardianship order, it is evident from section 60(4) that section 58 is to apply to an application for renewal as it applies to an application for a guardianship order itself under section 57. Both the renewal in terms of section 60 and the variation sought in terms of section 74 are subject to the overarching general principles and fundamental definitions set out in section 1 of the 2000 Act which require to be given effect to in relation to any intervention in the affairs of an adult such as the respondent. Indeed, the general principles and fundamental definitions set out in section 1 apply to all of the interventions with which the applications before the court are concerned.

 

[20] In relation, second, to the application for recall of the guardianship order, section 71(1)(c)(i) provides that one of the possible grounds for recall is that the grounds for appointment of a guardian are no longer fulfilled. The grounds for appointment of a guardian are set out in section 58(1), which in turn requires to be read in the context of the general principles and fundamental definitions set out in section 1.

 

[21] Sections 1 and 58 are therefore pivotal provisions in relation to a consideration of both the application for renewal and variation and the application for recall. That being so, the essential questions for the court to decide in relation to these applications are (1) whether the respondent is incapable (as that term is defined in section 1(6)) in relation to decisions about, or of acting to safeguard or promote his interests in, his personal welfare, and is likely to continue to be so incapable, and (2) whether any other means provided by or under the 2000 Act would be sufficient to enable the respondent's interests in his personal welfare to be safeguarded or promoted. The answer to these questions will in turn answer the question of whether, in terms of section 71(1)(c)(i), the grounds for appointment of a guardian are no longer fulfilled.

 

[22] However, section 71(1)(c)(ii) provides for a second ground for recall in circumstances where the court is satisfied "that the interests of the adult in his... personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship". I shall therefore proceed on the basis that this, wider, test also requires to be addressed in the present case. It is clear from section 71(1)(c) that, even if the court is satisfied that the grounds for appointment of a guardian are no longer fulfilled, if the interests of the adult in his personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship, the court is empowered to recall the guardianship. The word "may" in section 71(1) indicates that if either one of the conditions of section 71(1)(c) is satisfied, the question of recall of the guardianship is a matter within the discretion of the sheriff.

 

[23] It is only if the conditions in section 58(1) are met that it would then be for me to decide whether, in the exercise of the discretion conferred on me in terms of section 58(1), the application for renewal and variation should be granted. Here I would require to give effect to the general principles set out in section 1(2) to (4). In practical terms, however, because there is also the application for recall and the consequent additional requirement in terms of section 71(1)(c)(ii), before proceeding to exercise my discretion, I would have to ask myself whether the respondent's interests in his personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.

 

[24] The application, number 8 of process, by the applicant for a non-compliance order and warrant in terms of section 70 of the 2000 Act would then fall to be determined. If the guardianship is recalled and not renewed, the application would of course fall to be dismissed. If, however, the guardianship is renewed, the question arising would be whether a decision of the guardian has not been complied with by the respondent and whether he might reasonably be expected to comply with it. If this condition is met, it would then be for me to decide whether, in the exercise of the discretion conferred on me by section 70(1), the application should be granted. Here also I would require to give effect to the general principles set out in section 1(2) to (4).

 

 

Summary of evidence for the applicant

 

[25] Dr Alan Carson is the consultant neuro-psychiatrist and lead clinician at the Robert Fergusson Unit at the Royal Edinburgh Hospital. He spoke to his extensive CV, no. 5/2 of process. This includes extensive teaching experience. He is part-time senior lecturer at the Department of Psychiatry at the University of Edinburgh. He has also contributed to many publications as set out in his CV. He is appointed by Lothian Health Board for the purposes of section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as having special expertise in the diagnosis and treatment of mental disorder.

 

[26] Dr Carson is recognised nationally as having expertise in neuro-psychiatry. He is the only practicing consultant neuro-psychiatrist in Scotland. He confirmed that the respondent has a mental disorder. He has been involved with the respondent since the late 1990's when he was asked by Professor Charles Warlow at the Western General Hospital to assist with the respondent. At that point the respondent was diagnosed by Dr Carson as having a cognitive disorder in the form of Asperger's syndrome with a communication deficit. Dr Carson continued to see the respondent over a period of about 3 or 4 months at that point. He went on to explain that, suffering from Asperger's syndrome, the respondent has a neuro-developmental disorder in which the primary cognitive deficits are to do with "executive dysfunction and theory of mind". This disorder is related to the way people process and integrate thoughts. The executive functions of the brain are the functions that help people analyse options and choices and what the best solution to a problem is. At first sight, such a disorder might not be immediately recognisable but, over time, one sees strange patterns, behaviour and strange choice making. This is central to everyday behaviour and social functioning. He went on to explain that "theory of mind" was a high level of executive functioning known as metacognition. This is essentially the ability to see ourselves as others would see us and to estimate how another person views a situation. This is at the very core of social functioning. For example, the respondent exposes himself and masturbates in the communal sitting room at his supported accommodation. This is typical of someone who has no ability to see the world from someone else's perspective. Because the disorder limits the respondent's ability to understand what others think, this has a major effect on his decision-making. The consequence of this is that he cannot adequately look after himself. Although not initially apparent, this deficit in cognitive ability has "devastating" effects on social functioning. The respondent also has quite a substantial language disorder. Although he may sound normal at interview, if tested with specific psychometric tests, it is found that there are gross limitations in his ability to express ideas. Similarly, the respondent has a receptive language disorder (a disorder in the ability to understand information coming in to him). All of this is compounded by a slow speed of processing. There is therefore a combination of an inability fully to understand the language and an inability to socially integrate that language.

 

[27] Dr Carson confirmed that his most recent assessment of the respondent was on 16 June 2010, as confirmed in his report dated 24 June 2010 annexed to the application for renewal of the guardianship, no. 10 of process. Dr Carson's opinion was that the duration of the respondent's incapacity is likely to be lifelong. He went on to explain in evidence that a neuro-developmental disorder is a disorder of brain development. This is due to the structure of the respondent's brain compounded by perinatal injury. He has a lifelong, static, cognitive problem.

 

[28] Dr Carson also confirmed that the respondent was admitted to the Royal Edinburgh Hospital in May 2001 as an emergency with suicidal ideation and a strong desire to harm himself. He had been living by himself in a flat in Edinburgh. There had been a background of increasing social isolation and a failure to cope with living on his own in a flat. This included day to day living such as managing food hygiene. An immediate precipitate was that a number of school friends had moved on to become independent adults, developing relationships, having children and changing their life forms. The respondent had therefore been feeling left out and left behind. Part of his neuro-developmental disorder was that he had not been able to understand things from their perspective. The purpose of his admission to the Royal Edinburgh Hospital was to make sure that he did not harm himself. Initially, there was also a concern that there might be a secondary depressive illness. However, following his admission, it became apparent that there was no depressive disorder. Dr Carson's opinion was that the respondent had been in a situation of desperation rather than suffering from a secondary depressive illness.

 

[29] Dr Carson was asked for his opinion as to how things would have been if the respondent has moved in to live with others. His opinion was that, due to the problems in his social functioning and behaviour, it was "highly unlikely" that other flatmates would have tolerated him. Following his discharge from the Royal Edinburgh Hospital in November 2001 the respondent was found a placement at a place called Daybreak House. This was sheltered accommodation. However, this quickly failed. There were problems with his personal hygiene and hygiene in shared spaces.

 

[30] Dr Carson confirmed that he had then been involved in the application for guardianship in relation to the respondent under section 37 of the Mental Health (Scotland) Act 1984 in March 2002. This was granted in May 2002. The respondent's neuro-developmental disorder had led to him fulfilling the criteria for guardianship in terms of his incapacity. It had been felt that a return to independent living would have led to a direct return to the problems which had led to his emergency admission to the Royal Edinburgh Hospital in 2001. By means of guardianship at that stage, it was felt that they were at least making sure that the respondent was in a clean and safe environment and that people had some degree of contact with him to ensure that disasters were not occurring. Dr Carson said that there had been a clear acknowledgement that there had been fairly low ambitions and that, ideally, they would like to have had a more comprehensive package of assistance for the respondent looking at occupational and social needs. However, it was very hard to engage with someone with such therapeutic activities in the community even on a compulsory order if they are not willing to engage, which the respondent was not. It was therefore not an ideal situation but it was "the least worst alternative". Many attempts had been made to try to get the respondent to engage, but all had proved very difficult.

 

[31] Dr Carson confirmed that the initial guardianship had expired in November 2002 and that, in January 2003, a welfare guardianship had been granted in terms of section 57 of the 2000 Act. He had again been involved with that application. The grounds for that application had remained the same. That application was granted. The respondent was then moved to a new placement in supported accommodation at Greenhill Terrace, Edinburgh. The support providers there were Penumbra. That guardianship expired in January 2006. An interim guardianship was then granted in June 2007. Dr Carson had again been involved. The grounds for that application had remained the same. In July 2007 the respondent moved to alternative supported accommodation at 18 Gilmore Place. It had been hoped that the new accommodation would be more suitable for the respondent. The current welfare guardianship had then been granted on 20 August 2007 for a period of three years. Dr Carson had again submitted a report in support of that application, the grounds being the same again. It is this guardianship that is now sought to be renewed.

 

[32] Dr Carson confirmed that new accommodation at 59/2 Blackfriars Street, Edinburgh had now been identified for the respondent. It was hoped that this would be more suitable for him. It would give him a single person flat which is one of a number of "core and cluster" flats, with communal areas, in a supported accommodation project managed by Autism Initiatives. This accommodation is used specifically for people who are on the autistic spectrum (which someone with Asperger's syndrome is). The staff at Autism Initiatives have experience in managing problems presented by those on the autistic spectrum, including those with Asperger's syndrome.

 

[33] One of the characteristics of the condition suffered by the respondent is that he is highly resistant to change. He is therefore not willing to move to Blackfriars Street on a voluntary basis. Dr Carson confirmed that he was supportive of the move. He is of the view that the prospects of the respondent coping with independent living are "very low". He is not even managing well at his current supported accommodation. There continue to be major issues with his personal hygiene. This has led to the respondent being barred from various restaurants, cafes and bars. There is a particular problem in relation to his foot hygiene. He does not ever clean his feet. The problems go well beyond foot odour. He is at risk of developing serious long term problems, such as vascular ulcers or even, potentially, gangrene. This could put him at risk of having toes amputated. Dr Carson was of the view that such problems would not be tolerated by others in a situation of a shared "normal" flat.

 

[34] The benefit Dr Carson sees from renewal and continuation of the guardianship is that it would at the very least make sure that the respondent was in a safe and secure environment. There would also be ongoing monitoring so that problems would be spotted and steps therefore taken at an earlier stage to prevent a return to the situation the respondent was in in 2001 when he was admitted to the Royal Edinburgh Hospital.

 

[35] Dr Carson therefore also sees this as having a protective element, as well as giving the respondent some opportunity for social interaction with others in the new core and cluster supported accommodation without his being at risk of being assaulted and getting into fights with others due to his behaviour. For example, in relation to the problem in his current accommodation about his exposing himself and masturbating in the communal sitting room, at the new accommodation staff would be able to diffuse such a situation.

 

[36] Dr Carson therefore confirmed that his opinion was that it was appropriate to continue the guardianship as this will safeguard and promote the respondent's personal welfare.

 

[37] Dr Carson also commented on the report, no. 7 of process, by Dr Colin Preshaw lodged on behalf of the respondent. He noted a passage on the second page of the report at paragraph 3 recording of the respondent: "He would not be drawn on whether or not he had any specific interests." Dr Carson explained that this inability to widen the discussion was part of the respondent's disorder. In relation to Dr Preshaw recording that the respondent had an IQ of 135 (which was said by Dr Preshaw to have been on the basis of a self report by the respondent), Dr Carson said that the measure of IQ was incorrect and that measurement of IQ in isolation was in any event inappropriate. Dr Carson told the court that he was aware of two full scale IQ tests of the respondent having been carried out. Both had been in the range from 100 to 110 (which was at the higher average level rather than the superior level). However, more relevant was the fact that those IQ tests had shown huge discrepancies between "domains". The respondent had performed much more poorly in his verbal domains as compared with his performance domains. His verbal domains were between 60 and 70. These discrepancies were indicative of either brain damage or a disorder in the respondent's brain development. He also does very badly in psychometric testing.

 

[38] Insofar as Dr Preshaw had recorded in his report (again on the basis of a self report by the respondent) as recorded at the second page of his report at the foot of the page that the respondent "feels he successfully manages his finances, his food and maintaining his room, all with minimal support", Dr Carson did not consider that this was an accurate self assessment by the respondent.

 

[39] Dr Carson explained that the respondent's disorder of metacognition was a disorder of the "intellectual capacity to reason and form a balanced judgement". A contrast would be with a sociopath who commits violent offences. Such a person would have no intellectual problem in "understanding" what had happened; they would simply not care. In the respondent's situation, however, there is disorder of his cognitive ability. Dr Carson explained that "it is implicit in the concept of forming judgement that there must be insight and metacognition. You have diminished capacity to form a judgement in the absence of insight. This is a primary disorder of capacity for [the respondent]". Dr Carson's opinion also was that the respondent cannot understand the social consequences of his actions. He cannot understand decisions fully. In other words, the respondent does not really understand the nature of the decisions he is making. This is because he does not understand how the world works and does not therefore understand the problems he is going to have in achieving the goals he says he has, such as living in a "normal" place.

 

[40] Dr Carson did not agree with Dr Preshaw's opinion that guardianship did not appear to have any benefit for the respondent's health or welfare. Dr Carson's view is that the respondent is being given a safe and secure environment to live in, which is a basic need.

 

[41] Dr Carson's opinion was that, if the respondent was left to make his own decisions about his welfare, "realistically we will be back here (in court) in 3 or 4 months time". He did not think that there was "any prospect" of "normal" shared accommodation working as the respondent does not have the social skills to share an environment with someone else. He was of the view that there would be a slow deterioration over a period of a few months and that the applicant would then need to step in again. There was a risk that "we could go back to 2001 when he was contemplating death by hanging". By contrast, the new placement is available at the present time. This seems to Dr Carson to be "the ideal choice". It has the advantage of having support staff who have experience in the field of autism and of dealing with the complex problems associated with this condition.

 

[42] Dr Carson was of the view that the second power sought in the application for renewal and variation would be "highly beneficial", particularly in the new accommodation proposed where the respondent would have a flat of his own. It would mean that checks could be made to keep some form of monitoring that he was in a safe and clean environment in his flat such as in relation to having basic sanitation and hygiene and seeing, for example, that there was not decomposing food in the fridge. He said that such a power was "generally used in a light touch fashion. It is about forming a relationship". Dr Carson envisaged that there would be difficulties in getting the respondent to engage in a voluntary basis, but that the second power would mean that there would at least be some minimum standards.

 

[43] In cross-examination, Dr Carson gave evidence to the effect that the respondent was not in the category of those with Asperger's syndrome who had a learning disability. Dr Carson confirmed that in his practice he deals with Asperger's syndrome patients, such as the respondent, who are higher functioning and who have an intellectual disability. This is a cognitive disorder and, because their IQ's are in the normal range, they do not have mental retardation (now known as a learning disability).

 

[44] Dr Carson has remained involved with the respondent at the request of the respondent's father who had himself been a senior psychiatrist. Dr Carson's view was that his neuro-psychiatric skills were at the core of an assessment of Asperger's syndrome as it is primarily a disorder of brain development. This was therefore within his area of expertise. Learning disability services would not be appropriate for the respondent in this case. Dr Carson confirmed that while the respondent was in the Royal Edinburgh Hospital for six months in 2001 he had carried out his assessment of the respondent. This had included IQ tests, tests of speech and language and psychometric tests. In relation to the admission to the Royal Edinburgh Hospital in May 2001, Dr Carson confirmed that this was a "social admission". The real problem was that the respondent just could not manage at home. Although he did not have a depressive illness, it was clear that he was very volatile and that there was a very high risk of suicide.

 

[45] Dr Carson confirmed that he had attempted to discuss the proposed moved to the new accommodation with the respondent. He was not prepared to discuss it. He just repeated a stock reply that he wanted to be free to make his own choices. This was part of his cognitive and neurological inability to project himself into a different social situation. Dr Carson confirmed that, in common with others suffering a similar condition, stress would exacerbate the respondent's problems. However, Dr Carson pointed out that some stress was necessary for anyone to function, but that it should not go too far.

 

[46] Dr Carson confirmed that he was aware that the respondent is familiar with the Blackfriars area to which it is proposed he would be moved. Although he has not lived there, he goes there quite often.

 

[47] Dr Carson confirmed that if guardianship was not in place he thought that attempts would be made to engage the respondent voluntarily, but that all attempts by a range of people to date had failed. As he put it, "that has been the constant problem".

 

[48] Dr Carson confirmed that he is amongst the leading neuro-psychiatrists in the United Kingdom and that, as such, he had a particular expertise in the area of Asperger's syndrome.

 

[49] Dr Carson told the court that it would not be viewed as good practice to take the view that, because the respondent had previously presented himself to the Royal Edinburgh Hospital in 2001 when feeling suicidal, that he would, if left to his own devices and matters deteriorated again as expected, do the same again rather than committing suicide straight away. Dr Carson thought that such an approach would be regarded as "bordering on negligence". Dr Carson took the view that the fact that the respondent had previously said that he was going to commit suicide, and in a violent manner, this "hugely increased the risks". Dr Carson was therefore of the view that this was a major risk factor in the respondent's case.

 

[50] Mr Callum Hendry was also led in evidence in support of the applicant's position in relation to the minutes and applications before the court. He is a mental health officer appointed by the City of Edinburgh Council. He spoke to his report annexed to the minute for renewal and variation of the guardianship, no. 10 of process.

 

[51] Mr Hendry assumed responsibility as the respondent's mental health officer in August 2009. He had familiarised himself with the case notes relating to the respondent. He has been a social worker for 31 years and a full time mental health officer for four years. He was a part time mental health officer for many years before that. He confirmed that the respondent has a great deal of difficulty both living with others and living alone. There were acute problems between the respondent and others in his supported accommodation when Mr Hendry became involved as mental health officer in August 2009. This had been the case for many years, both at his current accommodation and at his previous accommodation at Greenhill Terrace, Edinburgh. His self care had deteriorated. He was sleeping in the communal area of the supported accommodation he was currently in at 18 Gilmore Place covered in faeces. His condition means that he has great difficulty in coming to terms with change. There is an acute fear that, if he is left to his own devices, he would become desolate and isolated. He was admitted to the Royal Edinburgh Hospital as a refuge in 2001 because he was not coping and felt suicidal. His appearance had become unkempt. The condition of the flat in which he had then been living had become unsanitary. He would not allow his family into his flat. After he was discharged from the Royal Edinburgh Hospital in November 2001 he went to a placement at Daybreak House in Edinburgh. This quickly failed and he returned surreptitiously to his old flat. All attempts to help him were rebuffed. This filled his parents with fear that he would revert to how he had been when he was admitted to the Royal Edinburgh Hospital. His father is a retired psychiatrist and has an unusually full understanding of welfare guardianships.

 

[52] It was in January 2003 that the respondent was moved to supported accommodation in Greenhill Terrace, Edinburgh. This was supported by Penumbra. Penumbra is an organisation which specialises in assisting people with mental health problems, but they do not specialise in autistic spectrum disorders. Although that was not ideal, it was viewed as being the best form of supported accommodation then available. At that point, there was no specialist community care based Asperger's or Autistic spectrum project in Edinburgh. This is a more recent development, with the new proposed accommodation being supported by Autism Initiatives now being currently available.

 

[53] There were problems at Greenhill Terrace, Edinburgh, with questions of hygiene and the respondent's use of shared space. Staff felt threatened and intimated by the respondent and had had to back off. They had attempted to engage with him and to mediate between him and other residents but attempts were unsuccessful. The problems with hygiene had obliged staff to confront him. However, this annoyed him. He did not want help. This was one of the key difficulties. In the event, the respondent had to be moved to alternative supported accommodation at 18 Gilmore Place, Edinburgh (again supported by Penumbra) as the project at Greenhill Terrace was being closed down. The respondent had wanted to move to "normal accommodation", but this had seemed doomed to fail. Welfare guardianship was therefore again sought in 2007 and he was moved to 18 Gilmore Place in July 2007. There are about four or five residents there. His brother and sister helped him to make the move there. Each resident has his own room there. There is also a shared kitchen and two living rooms. Members of staff are there much of the time. The difficulties have remained the same as at the previous supported accommodation. He has commandeered the television in the sitting room, driving everyone else out. He does not wash himself or his clothes, he smells offensively and his room has dipped below the standard Penumbra feels the Care Commission would tolerate. The other residents feel intimidated by him. His problems of social adjustment have persisted and have proved just as impervious to staff influence there as they were before in Greenhill Terrace. He will appear wrapped in a towel which he lets slips, exposing himself. Occasionally he masturbates in the living room oblivious to the impact of such behaviour on others. He is insensitive to the impact of his behaviour on others and aggressive when challenged about this. Members of staff have had to retreat. Things became so bad that he was served with a notice to quit in December 2007. This was not pursued by Penumbra due to fears about what would happen to him if he was evicted. However, these problems have continued.

 

[54] The respondent is implacable in his opposition to the possibility of moving to the new proposed accommodation in Blackfriars Street, Edinburgh. It is a new "core and cluster" supported accommodation project being run by Autism Initiatives. Autism Initiatives specialise in autistic spectrum conditions. Efforts have been made to try to persuade the respondent that it would be beneficial to him to move there, but he remains implacably opposed to a move. His father, brother and sister all got together to try to help him make the move earlier in 2010, but their attempts failed as well.

 

[55] In relation to the second, additional power sought in the application for renewal of the guardianship order, Mr Hendry is of the view that this additional power is necessary because this is seen as being the only way Autism Initiatives will then be able to help the respondent keep his flat in a reasonable condition. Without this power it is anticipated that the respondent will not allow anyone to cross the threshold of the flat. It is therefore felt that the only way support staff will be able to get over the threshold is if they have unequivocal authority from the court to insist on entry to his flat.

 

[56] Likewise, an order under section 70(1) of the 2000 Act is viewed as being absolutely necessary because the respondent will not move unless compelled to do so. He cannot remain at his current placement. It is not been successful.

 

[57] Mr Hendry's view is that continued welfare guardianship is "absolutely necessary". The respondent's father, brother and sister agree that this is required, as is an order under section 70(1) of the 2000 Act. Their fear is that, without continued guardianship, the respondent would become homeless, itinerant and isolated and that he will "sink to the bottom". Their worst fear is that the respondent will end up as he was in 2001 threatening to commit suicide. Mr Hendry shares their fears and is of the view that the respondent cannot live alone or with others in unsupported conditions. Mr Hendry did not think that there was an alternative way of safeguarding the respondent's welfare. He felt that it was the "least restrictive" compromise and that "anything less than that would be to abandon him".

 

[58] Mr Hendry has tried to speak to the respondent about the application seeking a continuation of the guardianship. The respondent was incensed and really angry at the idea of continuing to be controlled, as he sees it. Mr Hendry's view is that the respondent has made a wholly unrealistic reading of his own position. He has no insight into his own condition. As Mr Henry put it, "there is a great hole where insight should be". This manifests itself by the respondent refusing all help.

 

[59] Mr Hendry was asked in cross-examination about the possibility of the respondent being given some form of home help service or "visiting" support. Mr Hendry's view was that this would not work because he considered that visits would be too easily rebuffed and that the respondent "would not tolerate them". Experience has shown that people have backed off in fear because of his attitude to people if they try to help. He has been "physically menacing" to staff in his current placement and staff have felt frightened of him. They therefore make a judgment in the light of experience every day about what is worth fighting about with him. Mr Hendry agreed that Autism Initiatives will face the same difficulties in the new core and cluster accommodation, for example, if members of staff attempt to clean his flat there. They will have to work out what to do. The second power sought in the application for renewal of the guardianship is being sought in order to support them. It was put to Mr Hendry that there was every possibility that the second power would still not prevent the respondent living in squalor. Mr Hendry agreed that there was no guarantee that this could be prevented.

 

[60] Mr Hendry was asked whether the possibility of the respondent getting his own tenancy and having "live in" support had been considered. Mr Henry's firm view was that the respondent would regard that as "intolerably intrusive" and thinks that the respondent would flee. Mr Hendry's view was that if the guardianship was not continued there would be a problem as the respondent cannot remain at Gilmore Place. That placement is not working and it must end. Penumbra may be forced to evict him in fairness to other residents there. Mr Hendry confirmed that the City of Edinburgh Council would have a continuing duty towards the respondent if he was evicted. He might be placed in temporary accommodation by the Housing Department. However, Mr Hendry thought that if that happened there would prove to be a steady deterioration in the respondent.

 

[61] Mr Hendry recognised that the current guardianship was not ideal, but that he felt that it was better than the alternatives and that it had also served a "protective function".

 

[62] Mr James Morrice was also led in evidence on behalf of the applicant. He is employed by Penumbra as support manager of the supported accommodation at 18 Gilmore Place where the respondent is currently placed. He was also the support manager of the respondent's previous supported accommodation at Greenhill Terrace, Edinburgh. He has therefore known the respondent for many years now. Part of Mr Morrice's degree training covered mental health and included Asperger's syndrome. He has been with Penumbra for 15 years and has been support manager with them for seven years. The supported accommodation at Gilmore Place provides for six males with mental health problems. Residents are there for a maximum of three years. The respondent moved there in July 2007. A number of members of staff have been given training by the Autism Society in response to the respondent's placement with Penumbra. The placement at Greenhill Terrace did not go well. Staff found great difficulties in engaging with the respondent. His personal hygiene was, and remains, a big issue. Another issue was that he would take over the communal sitting room. His behaviour had a negative effect on other residents living there. They felt intimidated by him. His odour permeated the whole house. This continues to be an issue in the current placement as well. The house smells of the respondent. He has masturbated in communal areas. These problems continue even although members of staff have tried to talk to him about them. Mr Morrice confirmed that a notice to quit had been served on the respondent in November 2007. This was after he had moved to his current accommodation in Gilmore Place. It was later withdrawn as it was feared that the respondent would end up homeless.

 

[63] Mr Morrice confirmed that, if the guardianship was recalled and not continued, the respondent could not continue to live at the current placement at Gilmore Place. It is inappropriate because a maximum stay for any resident is three years. It is also inappropriate because of the impact the respondent has on other residents there. This is therefore not an option. The respondent will have to leave. The new placement at Blackfriars Street is thought to be best for the respondent as it is run by Autism Initiatives. The respondent would have his own space and there would be a communal area to go to if he wanted to. There should be less of an impact on others there.

 

[64] Mr Morrice is aware that the respondent has said that he would like to live in a shared "normal" flat. However, in Mr Morrice's opinion, the respondent could not sustain that. Members of staff at his current placement have tried to teach him life skills, such as food shopping, budgeting and healthy eating, but he refuses to engage.

 

[65] In cross-examination, Mr Morrice confirmed that, since the initial training of his staff by the Autism Society, there had been ongoing input from the society and further training for staff. Mr Morrice also added that the respondent has "no comprehension of anyone else's feelings or ideas. This is part of his condition".

 

 

Summary of evidence for the respondent

 

[66] Dr Preshaw told the court that he was a consultant psychiatrist until his retirement from his last post, as Director of the Royal Scottish National Hospital at Larbert, about six years ago. This was when the hospital closed down. He continues to sit as a member of the Mental Health Tribunal for Scotland. His speciality was learning disability. The hospital at Larbert provided a learning disability service to people from all over Scotland. Patients at that hospital included some patients who were on the autistic spectrum. When asked if any of his patients had Asperger's Syndrome, Dr Preshaw replied that some had. He was then asked if he had been involved with any "higher functioning" Asperger's syndrome patients (as opposed to those with learning disabilities), and he replied "one or two". However, he then added that he had worked with several Asperger's syndrome patients, but not with any "higher functioning Asperger's syndrome patients".

 

[67] Dr Preshaw spoke to his report dated 19 October 2009, no. 7 of process. He confirmed that he had interviewed the respondent at his supported accommodation. Dr Preshaw also confirmed that he had initially provided a report in relation to the respondent in 2002 supportive of the respondent's position at that time in relation to an application for guardianship then being made in terms of section 37 of the Mental Health (Scotland) Act 1984. He next interviewed the respondent on 6 October 2009 to enable him to prepare his most recent report in connection with the application to recall the current guardianship order. He had had no contact with the respondent between 2002 and 2009. Dr Preshaw confirmed that he was not a neuro-psychiatrist. His background is in the field of learning disability.

 

[68] Dr Preshaw gave evidence to the effect that he felt that more could have been done for the respondent. He said that he felt that "somebody should have been able to direct him more appropriately" in relation to his lifestyle.

 

[69] He agreed with the diagnosis of Asperger's syndrome and that it was a static syndrome. He thought that the respondent had a lot of learned behaviour. His impression was that the respondent had some mechanisms for cutting interviews short when he wanted to. He had learned some pieces of maladaptive behaviour "which get results". Dr Preshaw said that he thought that the respondent probably would listen to advice, and he thought that the respondent would understand the reason for advice.

 

[70] As narrated in his report, Dr Preshaw confirmed that at interview the respondent had given "a very limited account of himself". Dr Preshaw confirmed that he had expected that given the respondent's language communication difficulties. However, he expressed the view that the respondent responded to questions with appropriate answers and that there was no evidence of psychotic thinking. He confirmed that the information set out in his report was on the basis of self reports by the respondent. He had confirmed to Dr Preshaw that he would like to rent a room and "live normally". He did not like where he was staying at present. He understands that, on guardianship, he is not in full control of his life. When asked if he thought that the respondent understood the protective element of guardianship, Dr Preshaw replied "I don't think that he sees the protective element. I think he regards himself as fairly safe". Dr Preshaw said that he, Dr Preshaw, thought that there was a protective element to the guardianship and that it was providing the respondent with a safe environment, but that that was as far as it went.

 

[71] Dr Preshaw confirmed that it had been difficult to establish what the respondent did with himself. The respondent would not be drawn on whether or not he had any specific interests. He was very unhappy at being regarded as someone who had Asperger's syndrome and not as "a whole person". He had a very unstructured lifestyle. He did not seem to be interested in anything.

 

[72] Dr Preshaw was asked if he thought it was possible for the respondent to understand the benefit of an option being made available to him. He responded to the effect that he thought that, if the respondent was given options in simple language, this might be possible. He then added: "I think that (the respondent) has been given options in too complicated language." I asked him to clarify what his basis was for expressing his view. Dr Preshaw responded to the effect that he had "just got this impression".

 

[73] Dr Preshaw was told by the respondent that he felt that he successfully managed his finances, his food and maintained his room all with minimal support, as recorded in his report. Dr Preshaw felt that the respondent was not happy being told what to do. He did not feel that the respondent was in a particularly appropriate placement and he did not feel that the guardianship was doing "an awful lot of good". The respondent did not appear to have developed since Dr Preshaw had seen him in 2002. He did not appear to have benefited. Dr Preshaw's impression was that the respondent was more isolated and unhappy than when he had last seen him in 2002. Dr Preshaw thought that the new proposed placement would be a more appropriate placement and that staff there would be trained specifically in how to deal with people with Asperger's syndrome.

 

[74] However, Dr Preshaw's view was that the respondent could take decisions regarding his welfare, could communicate them and was capable of acting on, retaining and understanding those decisions. He was therefore of the opinion that the respondent was not "incapable" and that his level of capacity had never been at a level which justified his being considered "incapable". He thought that, although the respondent might not be fully aware of the full reasons behind it, he could make valid choices. It did not have to be a good decision to be a reasoned one.

 

{75] In cross-examination, Dr Preshaw said that he would not claim to be an expert in Asperger's syndrome. He agreed that it was be fair to say that he had not undertaken many assessments of patients with Asperger's syndrome.

 

[76] Dr Preshaw agreed that he had made no mention in his report of the respondent's admission to the Royal Edinburgh Hospital in 2001. He said that, although he was aware of the respondent's previous history, he did not think that it was particularly relevant to the question of the respondent's capacity because he thought that, as at 2001, the respondent was suffering from a "depressive illness". I asked Dr Preshaw to clarify what basis he had for saying this in the light of Dr Carson's evidence to the effect that, he, as the respondent's consultant, had not found that there was evidence of a depressive illness in 2001. Dr Preshaw responded that he thought he had seen some reference to a depressive illness "somewhere in a report". However, he was not able to give any more detail about this and concluded by saying that he had not seen the respondent in 2001. Dr Preshaw said that he nevertheless did not feel that the respondent's circumstances then had a great deal of relevance to the current issue about the respondent's capacity as it was nearly 10 years ago and that the respondent was in a different situation then. Dr Preshaw was reminded by Mr Clarke that it was an example of what had happened when the respondent was in unsupported accommodation and was not coping and it was suggested that it was surely of relevance. Dr Preshaw responded "in a way it is but (the respondent) has not being given the opportunity to try unsupported accommodation since then". Dr Preshaw felt that the respondent should be given that opportunity.

 

[77] Dr Preshaw confirmed that he had got the information upon which he had proceeded from the respondent and that he therefore obviously had not got a full history. However, he said that he had also seen the applications to the court and a report from the mental health officer (in re-examination he confirmed that this had in fact been what he called an "independent social background report" and not the report from the mental health officer, Mr Hendry, which was only made available when the application for renewal for the guardianship was made in March 2010). Dr Preshaw confirmed that he had not spoken to staff at the respondent's supported accommodation as there were no members of staff there when he visited. He did not contact them afterwards either as he did not think that there was a great deal of relevant information which they could have provided.

 

[78] He had not thought it appropriate to do any cognitive testing of the respondent. The respondent had appeared to him to be functioning in a reasonable manner. He had therefore concluded that the respondent was functioning at a "normal level". He accepted though that the respondent had difficulties in relation to social interactions and he confirmed that he thought that the respondent will have difficulties in relation to lacking insight. When asked whether this could lead to problems in making decisions and he replied: "In general terms, I think it would."

 

[79] Dr Preshaw agreed that he had not made any mention in his report about what had been described by other witnesses in relation to, for example, personal hygiene issues and masturbation in communal areas and having been asked to leave Gilmore Place. He explained that this was because he had proceeded on the basis of what he was told by the respondent and that the respondent had not mentioned these things. He was asked whether, if these were established as facts in court, they would change his mind about his conclusion that the respondent was not incapable and he responded that it would not. However, he did not elaborate on this.

 

[80] Dr Preshaw went on to say that it seemed to him that the respondent could "make" decisions, although they might not be what others advising him would want. He therefore felt that the respondent had the capacity to make decisions.

 

[81] When asked what he thought would happen if the guardianship was recalled and not continued, Dr Preshaw said that he thought that the respondent would stay where he is as he did not like change. He therefore suspected that things would stay very much as they are at the moment. Dr Preshaw was reminded that at the second page of his report, at paragraph 2, he had recorded there that the respondent had told him that he would like to move out of his current supported accommodation into a rented room "to live normally". Dr Preshaw said that he thought it unlikely that the respondent would find alternative accommodation and achieve a move on his own. He did not think that if he was living on his own now it would be quite as dramatic as the circumstances were in 2001. One of the factors then was that the respondent was finding things difficult because members of his peer group were moving on.

 

[82] Dr Preshaw was asked about the questions that he had asked of the respondent. He explained that he had not felt too keen to "probe too deeply" as the respondent could have ended the interview. This was he said a normal interview technique.

 

[83] Dr Preshaw was of the view that the best way to work with and support the respondent would be on a voluntary basis. He did not think that compulsion was the answer. He was asked what the position was if the respondent refuses to engage voluntarily and he responded that, if the respondent refused to engage, it would be impossible to do anything.

 

[84] In relation to the new accommodation proposed for the respondent, Dr Preshaw agreed that it would be "more appropriate" for the respondent than his current accommodation. However, he thought that the respondent going to live somewhere with voluntary support would be better. When asked if he thought that the respondent would accept voluntary support, he responded: "It is difficult to answer that as he has refused all voluntary efforts so far. He would have to be persuaded". However, Dr Preshaw agreed with the proposition that, if this was going to be done, it would have been done already and that it was therefore not an option. He agreed that the new accommodation proposed was "as good as any". He doubted if there were any other alternatives in Edinburgh which were as reasonable as the one now proposed.

 

[85] In relation to the section 70 application, Dr Preshaw was reminded that he had given evidence earlier that options had not been explained to the respondent properly. He responded at this point that he felt that it was difficult to explain alternatives in relation to accommodation to somebody and that they should try to get the respondent to go and see it. However, he then agreed that the respondent had refused to do this. He thought that if the respondent could see the alternatives he might make "a more rational decision" on it.

 

[86] When asked if he thought it would work if the respondent moved to a shared flat with a room for rent, he responded: "I have some reservations as to whether that would work".

 

[87] On the question of whether Dr Preshaw saw any benefit in the guardianship, he agreed with Dr Carson to the extent that it had "kept (the respondent) safe". Dr Preshaw added that he just felt that if there were compulsory powers and someone's freedom was being limited they should get more than just a safe environment; that they should be able to progress. He therefore felt that "more could have been done" in relation to the respondent. However, he agreed that in terms of the 2000 Act any intervention should be the minimum and that the powers sought by the applicant in the present case were "very limited".

 

[88] In re-examination, Dr Preshaw confirmed that when he had written his report in October 2009, he had not had Mr Hendry's report as mental health officer as it was annexed to the application for renewal of the guardianship lodged in March 2010. He thought the report he had seen when he was writing his report was what he called "an independent social background report". He could not recall who had written it, and it was not available to the court.

 

[89] In relation to the question of the respondent being persuaded to co-operate on a voluntary basis, Dr Preshaw said that he thought that the respondent needed persuasion "but I am not quite sure how it could be done".

 

[90] In relation to his interview with the respondent, it was a deliberate tactic not to dig too deeply into sensitive areas with the respondent.

 

[91] Dr Preshaw confirmed that he was of the view that the respondent could "make" a decision and "stick by it". In Dr Preshaw's view, that made the respondent "capable". Dr Preshaw was then asked about a decision by the respondent in relation to his feet as being a possible example. Dr Preshaw agreed that that would be an example, but added "if he is aware of the consequences". I asked Dr Preshaw to clarify if the qualification he had just added about awareness of the consequences would apply to any decision "made" by the respondent. Initially, he agreed that it would. However, he then gave evidence to the effect that, for the respondent to "make" a decision, it would not involve having to be aware of the consequences, and repeated that to "make" a decision if was enough if the respondent could "make" a decision and "stick by it". I sought to explore further with Dr Preshaw the concept of someone "making" a decision without an awareness or understanding of the consequences. He simply repeated that he thought that the respondent could "make" a decision, adding "I think my position is that it is possible to "make" a decision without awareness of the consequences".

 

[92] Because these exchanges had arisen out of questions from the court, Miss McGinty was allowed the opportunity to re-examine Dr Preshaw further. In relation to "understanding a decision", she asked Dr Preshaw "would this involve some grasp of the consequences?" He replied "yes" without further elaboration.

 

[93] The respondent then gave evidence himself. He confirmed that he had been living in the accommodation at 18 Gilmore Place for about two or three years and that he was aware that he has Asperger's syndrome. He confirmed that he had had contact with psychiatrists since his childhood. After leaving school he had tried to go to agricultural college in Dumfriesshire but he had left because of bullying. He then went back to live with his parents. They then took him to the Royal Edinburgh Hospital. It was at that stage that he was diagnosed as having Asperger's syndrome. He thinks that his parents threw him out of the house. When asked about his relationship with them now he replied: "I don't like them at all. They have gone away and left me to deal with things. They don't do anything with me at all". His parents were now divorced and both have remarried. He felt that his mother looked down on him disapprovingly when he was diagnosed with Asperger's syndrome and that his brother and sister are his mother's "favourites". He felt that he had been abandoned by her. He sometimes hears from his brother and sister, but not much. He does not like them much either.

 

[94] When he was 19 or 20 he had to find accommodation himself. He went along to the Housing Association. He got a flat in the Tollcross area of Edinburgh. This is where he had been living, for about 10 years, when he was admitted to the Royal Edinburgh Hospital in 2001. He had not had support there. When asked what he had done with himself there he replied: "just lots of things". He then repeated a few times that he thought that he was isolated there and that it was too much. He met someone from the Autism Society who took him to the Royal Edinburgh Hospital. He said "I was feeling bloody awful". He was finding it awful in the flat. He felt he had needed help to find a "normal rented place" to share and to be "more part of society". After the Royal Edinburgh Hospital he was sent to Daybreak House. He hated it there and left. It was full of elderly people and a lot of his benefit money was taken (the comment about his benefit money being taken was a recurring theme throughout his evidence).

 

[95] The respondent thought that he had then gone back to his flat. He felt "awful and isolated" there again. He thought he had been trying to find another place to stay when he was served with guardianship papers. He thought he was then put in a place called Car Deum House. He was then sent to Greenhill Terrace. He did not want to go there. He was there for a few years. He did not like it. There were older people there with mental health issues. However, when asked to describe the difference between living at Greenhill Terrace and his flat, he said that he had felt on his own and shut out of society in his flat, but that at Greenhill Terrace it was shared living and that he had felt a bit more part of society. He confirmed that Greenhill Terrace had been better than his flat. However, he had still not liked it. The "staff people" had been "patronising". It had felt like a sort of "house arrest or incarceration" in a "ghettoised" house full of people with mental health problems, and that they had taken most of his state benefits.

 

[96] The respondent was asked about what activities he had. He replied: "I just used my initiative and went out and did what I did". He did not elaborate on what that was.

 

[97] The respondent was asked about what he had done when his guardianship had expired when he was in Greenhill Terrace. He said that he was not really aware of this. He thought he might have been told. However, he had felt trapped and did not know what to do. A mental health officer, Gerry Leinster, had kept coming to see him and the respondent had wondered what he was doing.

 

[98] The respondent told the court that when he was at Greenhill Terrace he was at one point told to find a place to live. He found somewhere in the Grange. He went to the Housing Benefits Office to get housing benefits to pay for the rent. The landlord had accepted this. He had got a lease from the landlord. He needed to get a reference from Penumbra, the support providers at Greenhill Terrace. He confirmed that he had asked Mr Morrice to provide a reference but had asked him not to say anything about the respondent having Asperger's syndrome. This was because some people could be prejudiced. He had just wanted a good reference. However, Penumbra would not give him the reference in the terms he was seeking. The lease therefore did not proceed.

 

[99] The respondent confirmed that he then ended up on guardianship again and went to supported accommodation at 18 Gilmore Place, where he still lives. The respondent talked about "the staff people" there. There was one occasion where had worn just a towel in a communal area shortly after he arrived. He was given advice by staff to wear a dressing gown. That apart, he strongly denied that he had ever come to communal areas with a towel around him and that he had had "let things slip". He was insistent that he had never done that at all, that he was always properly dressed and that he had never masturbated in public. He insisted that he always washed himself (including his feet) and his clothes. In relation to staff, he said that he did not really need them at all. He feels that "the staff people" are very patronising. The respondent likes to go to places where "other perfectly normal people" go. He does not like going to a place called "Number Six" which is a place run by Autism Initiatives in the New Town. He then added with real feeling: "I hate having Asperger's. It has ruined my life. It is like real sour coffee on the end of the tongue. It is all you are talking about if you go to Number Six. It is just ghettoised."

 

[100] When asked what he did, the respondent said that he kept in touch with people from school and that he does "a lot of things". When asked to elaborate on this, the only activity he specifically mentioned was being in a pub quiz team near Greyfriars Bobby.

 

[101] In relation to guardianship, the respondent said that he knew this was other people getting him to do things by compulsion. He hated it. Most of his benefit money was taken away from him. He feels shut out of society. He just wants to be the same as everyone else. He felt that Dr Carson and Dr Preshaw were describing him as a much lower person than he was and that he was much more capable than people make out.

 

[102] He went on to say that all Dr Carson had talked about was "Asperger's", and then added: "All they see is the Asperger's and not (D) - he is a person who has Asperger's, who hates it... I hate it. It's continuing to ruin my life. I want it to stop".

 

[103] The respondent said that he knows that his brain seizes up and that he "needs time out" but he did not think that this affected his ability to make decisions as he was perfectly intelligent. He agreed that he might make different decisions from others. He thought that he sometimes made good decisions. He feels that nobody listens to him at all. He did not feel that he had benefited from guardianship at all. He felt that the supported accommodation he was in was highly negative and patronising. He would like to be living in a shared flat, living normally.

 

[104] The respondent confirmed that he does not want to go to the new accommodation proposed in Blackfriars Street. This is because it was in "an alien part of town". He also thinks that it would be like living on his own again. He likes to live in the Morningside/Tollcross area of town, adding: "it's who I am. It's my home area". Also, everyone else at the accommodation at Blackfriars Street would be on the autistic spectrum or have Asperger's syndrome and, as he put it, "I am sick of it". I just want to get rid of it."

 

[105] He said that Mr Morrice had been "lying through his teeth". He had never masturbated in public and that Mr Morrice's allegations were nonsense.

 

[106] In cross-examination, the respondent confirmed that he just wanted to live in a normal, shared place. He felt that if he did this he would feel a lot better about himself. He thinks that he will be able to find somewhere to live.

 

[107] The respondent's position was that the allegation that he had been naked was false. He had never done that. He also said that he had never had any problems with his feet at all.

 

[108] In relation to the proposed accommodation at Blackfriars Street, he said that he objected to it because of the power to intrude and the legal compulsion, and that it was "ghettoisation" for people with mental health problems.

 

 

Submissions on behalf of the applicant

 

[109] Mr Clarke on behalf of the applicant invited me to find the witnesses for the applicant to be credible and reliable witnesses. In relation to Dr Carson, Mr Clarke submitted that he was clearly a man of intelligence who had expertise in the field with which these applications are concerned. It was important that he had been involved with the respondent since about 1990. He was the consultant psychiatrist for the respondent when he was in the Royal Edinburgh Hospital for six months in 2001. He has also been involved with the respondent on various occasions since then. He gave careful, thought out and reasoned opinions and, when pressed, was always able to explain the basis for expressing a view. He had not attempted to pretend that all was rosy in the garden. His evidence should be given great weight. In relation to Dr Preshaw, Mr Clarke reminded me that Dr Preshaw had conceded that this was not a particular area of expertise for him and that he had accepted that he had not dealt with many similar cases. His main background was in the field of learning disability. He had also not been as involved as Dr Carson has been in research, lecturing and writing. Mr Clarke submitted that Dr Preshaw also lacked the knowledge Dr Carson had because he had not been as involved with the respondent as Dr Carson had been. His only sources of information for his report in October 2009 and his opinions appeared to have been two conversations with the respondent, one in 2002 and the second one in October 2009. Mr Clarke did not understand Dr Preshaw to have seen any medical records or detailed assessments in relation to the respondent. Dr Preshaw had spoken of having seen an "independent" social work report, but it was not before the court and the court had no knowledge of what it contained. Mr Clarke therefore invited me not to give weight to this. Dr Preshaw had also not spoken to anyone from Penumbra supporting the respondent. Dr Preshaw appeared to have taken a lot of what he had been told by the respondent at face value. It was therefore not possible to be sure what information he had had before him. He had also not mentioned in his report what information he had had available to him, which Mr Clarke submitted was unusual. Mr Clarke submitted that another concern about Dr Preshaw was that he had not seen any relevance in the admission of the respondent to the Royal Edinburgh Hospital in 2001. He had made no mention of it in his report. Dr Preshaw had explained this by saying that he had felt that the respondent's admission was related to depression. However, I was reminded by Mr Clarke that it was clear from Dr Carson's evidence that no diagnosis of depression was made. He submitted that a lay person might make a mistake in talking about depression, but that one would have expected a consultant psychiatrist to be particularly careful about establishing whether there was actual clinical depression.

 

[110] Mr Clarke further submitted that there was a big difference between the ways in which Dr Carson and Dr Preshaw had given their evidence. He submitted that when Dr Preshaw stated an opinion, he had found it difficult to justify such an opinion when pressed. By contrast, Dr Carson always come up with a reasoned explanation for his opinions. Insofar as Dr Preshaw appeared to suggest that more could have been done for the respondent, when pressed he had just said things like "someone should be able to get through to him".

 

[111] Mr Clarke reminded me that Dr Preshaw had seemed to suggest in relation to the proposed new accommodation at Blackfriars Street that this had just not been explained to the respondent properly. However, evidence from Mr Hendy and Mr Morrice which had not been contested showed that huge efforts had been made by Penumbra staff, staff at Autism Initiatives, the mental health officer and the parents and siblings of the respondent to explain matters to the respondent. These were, Mr Clarke submitted, examples of Dr Preshaw stating opinions without really being able to justify them. Mr Clarke therefore invited me to prefer the evidence of Dr Carson to that of Dr Preshaw where there were differences in their evidence.

 

[112] In relation to Mr Hendry, Mr Clarke submitted that he was a mental health officer of considerable experience. It was apparent from his evidence that he had given a great deal of careful thought as to what was best for the respondent. Mr Clarke accepted that he had only been the respondent's mental health officer from August 2009. However, he submitted that it was clear from Mr Hendry's evidence that he had taken some trouble to familiarise himself with this case.

 

[113] Turning to Mr Morrice's evidence, Mr Clarke submitted that he gave his evidence in a straightforward manner and that he had come across as a dedicated and thoughtful employee of Penumbra and someone who had obviously had a lot of dealings with the respondent since 2003 when the respondent had first moved into the accommodation at Greenhill Terrace.

 

[114] Mr Clarke said that he was aware from the respondent's evidence that there was a dispute about such issues as personal hygiene and what was submitted to have been the inappropriate use of communal areas. However, Mr Clarke submitted that it was difficult to see why Mr Morrice would make these matters up. I was therefore invited to hold that he too was a credible and reliable witness.

 

[115] Turning to the respondent's evidence, Mr Clarke submitted that what had come across was the painful frustration the respondent felt with his current circumstances and that one could not help but be moved by the evidence that he had given. However, his evidence had to be set against his agreed diagnosis of having Asperger's syndrome and a communication deficit and, in particular, what Dr Carson had described as his lack of insight. I was reminded that Dr Preshaw had agreed in cross-examination that there was a lack of insight. Mr Clarke submitted that, for these reasons, he invited the court to prefer the evidence of other witnesses where it was in conflict with evidence given by the respondent.

 

[116] Turning to the relevant provisions of the 2000 Act, Mr Clarke submitted at the outset that, by virtue of the terms of section 1(1), the principles set out in subsections (2) to (4) applied to all three of the applications before the court.

 

[117] In relation to section 1(2), Mr Clarke submitted that he required to establish that continuation of the guardianship and granting of the section 70 application would benefit the respondent and that that benefit could not reasonably be achieved without the interventions.

 

[118] Mr Clarke initially submitted that if he established the conditions for renewal of the guardianship, the application for recall of the current guardianship would automatically fail as one was the "flipside" of the other. However, on being reminded by Miss McGinty of the provisions of section 71(1)(c)(ii), he acknowledged that this provision contained an additional ground upon which the sheriff may recall a guardianship order, namely if the court is satisfied "that the interests of the adult in his...personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship". Mr Clarke accepted that this went beyond consideration of whether there were any other means provided by or under the 2000 Act which would be sufficient to enable the adult's interests in his personal welfare to be safeguarded or promoted, as provided for in section 58(1)(b) of the 2000 Act. In this regard, Mr Clarke submitted that it was difficult to envisage how the respondent's personal welfare could be satisfactorily safeguarded or promoted if there was no guardianship. He queried what provision there would be for the respondent if he will not engage with any support. Mr Clarke therefore submitted that, if the guardianship was recalled and not renewed, the likelihood was that the respondent would move into unsupported accommodation (as he cannot stay on at 18 Gilmore Place) and the difficulties apprehended by Dr Carson and Mr Hendry would be likely to arise again. Mr Clarke therefore questioned what else could be put in place which could do a similar job.

 

[119] Turning to section 1(2), Mr Clarke submitted that Dr Carson, Mr Hendry and Mr Morrice had all given evidence to the effect that renewal of the guardianship would be of benefit to the respondent. I was also reminded that Dr Preshaw had conceded that there was some limited benefit. The benefit is to keep the respondent healthy and safe. Attempts had been made to provide more benefit, but these had been unsuccessful. In relation to any criticisms of the guardianship so far, the evidence was that it had been terribly difficult to get the respondent to co-operate with any support. Mr Clarke submitted that it had also been established that the benefit could not have been achieved without the guardianship. It was clear that if the respondent was not subject to guardianship he would attempt to live independently. Dr Carson and Mr Hendry had grave concerns about that. I was reminded that Dr Preshaw, when pressed as to what would happen to the respondent if there was no guardianship, suggested that it would be okay because the respondent would simply stay on at 18 Gilmore Place. However, Mr Morrice had confirmed that this would not be possible. Mr Clarke therefore submitted that there would be benefit to the respondent in continuing to be "housed safely" and that he will not co-operate without the guardianship order.

 

[120] Mr Clarke submitted that the test in section 1(3) of the 2000 Act was also met as guardianship was the only way to ensure that the respondent lived in supported accommodation. There was evidence to that effect from Dr Carson and Mr Hendry. Dr Preshaw had also conceded that it would not be appropriate for the respondent to try to live in shared unsupported accommodation, but had said that things would be okay if he continued to live at Gilmore Place. However, that is not an option.

 

[121] Mr Clarke submitted that, in considering all three applications before the court, account fell to be taken of the present and past wishes and feelings of the respondent, the views of the respondent's parents as nearest relatives, the views of Mr Morrice of Penumbra as the primary carer and the views of Mr Hendry as representing the guardian.

 

[122] Mr Clarke accepted that, to succeed, the applicant will have to establish that the respondent is "incapable". Section 1(6) of the 2000 Act sets out what "incapable" means for the purposes of the 2000 Act unless the context otherwise requires. All the meanings set out in section 1(6) are alternatives. It was therefore sufficient if the court was to find any one of these established. Mr Clarke thought that the alternatives upon which he would found most were those in paragraphs (a) ("acting") and (d) ("understanding decisions").

 

[123] Mr Clarke reminded me that there had been a lot of discussion with Dr Preshaw about whether the respondent could "make" decisions and that Dr Preshaw appeared to equate "making" a decision or choice with "understanding" a decision or choice. Mr Clarke submitted that a very important part of "understanding" a decision was to understand its consequences. I was reminded that the court had heard from Dr Carson that the respondent lacks insight. Mr Clarke submitted that it was this that made it so difficult for the respondent to understand consequences of decisions. Dr Preshaw had accepted at one point that the respondent did lack insight. In relation to the question of "acting", I was also reminded that section 58(1)(a) referred to the adult being "incapable in relation to decisions about, or of acting to safeguard or promote his interests... in his personal welfare...". Mr Clarke submitted that the respondent did not "act" to safeguard or promote his interests in his personal welfare. This was apparent from the evidence about his personal hygiene and his use of communal areas. There was no dispute that there was a "mental disorder" in the present case. Mr Clarke submitted that there might be an argument as to whether subsection (6)(b) ("making decisions") or (c) ("communicating decisions") applied in the present case, but he submitted that subsections (6)(a) ("acting") and (d) ("understanding decisions") were applicable headings in the present case. That was also likely to continue to be the position (as required by section 58(1)(a)).

 

[124] As regards section 58(1)(b), it had not been suggested that any other means were provided by or under the 2000 Act which would be sufficient to enable the respondent's interests to be safeguarded or promoted.

 

[125] Mr Clarke submitted that the interventions proposed were "absolutely fundamental" for someone who was "incapable" under the headings "acting" and "understanding decisions" in terms of section 1(6) of the 2000 Act. There was no dispute that if the guardianship order was recalled, the respondent would move out of the supported accommodation. However, Dr Preshaw said that the respondent might not be capable of doing that. Mr Clarke submitted that this ran slightly contrary to the respondent's evidence. He referred to evidence given by Mr Hendry and Mr Morrice to the effect that, if the respondent moved into unsupported shared accommodation, it was highly unlikely to work and that there was a real danger that he would end up reverting to the position he was in, in 2001. Mr Hendry had felt that it would be likely that the respondent would bump along on the homeless housing ladder, moving from temporary accommodation to temporary accommodation. Even if the section 70 application was not to be granted, a continuation of the guardianship would at least ensure that the guardian would be able to make sure the respondent was in safe accommodation.

 

[126] In relation to the second, additional, power sought in the minute for renewal and variation, Mr Clarke submitted that the provisions of section 1 of the 2000 Act would again apply. He submitted that the new, additional, power would be of benefit to the respondent. He reminded me that there had been evidence concerning the state of the respondent's room. This power would enable support workers to get over the threshold of the respondent's accommodation to help clean his flat. This is because of the hygiene issue. They would also be able to attempt to engage with him to provide support and encouragement. The period of the continuation of the guardianship sought under section 60 of the 2000 Act was three years.

 

[127] In relation to the section 70 application, this only arises for consideration if the guardianship order is continued and is not recalled. Mr Clarke therefore addressed the court on the basis that the guardianship order remains in place and is continued. In that event, he submitted that the situation was that the respondent had not complied with the decision of the guardian that he should move to the supported accommodation in Blackfriars Street. Mr Clarke further submitted that this was a decision with which the respondent might reasonably be expected to comply as it was clear from the evidence that the current placement was not working and that, whilst the respondent was being kept safe there he is not really progressing. Penumbra is also of the view that it is time for the respondent to move on. Dr Carson clearly thought that the new placement would meet his needs very well. Dr Preshaw did as well, albeit that he said that it would not be perfect. Mr Clarke reminded me that he had asked Dr Preshaw what he thought would be perfect and that he had responded that shared accommodation would be, but that he had conceded that this would not work. Mr Hendry and Mr Morrice were also enthusiastic about the proposed new accommodation. The respondent is unhappy about the prospect of the move. However, I was reminded that any change is difficult for him. He lacks insight into his situation. All the professionals involved believe that the respondent will benefit from the move, albeit that Mr Hendry had said that it would not necessarily lead to an end to all of the respondent's problems. Mr Clarke submitted that, having regard to section 1(2) of the 2000 Act, the respondent would benefit from the section 70 application being granted as the supported accommodation at Blackfriars Street would be more appropriate than his current accommodation. The respondent would have the benefit of the privacy of his own flat there but the benefit of communal areas. The respondent would also have the benefit of highly trained specialist staff from Autism Initiatives on site who will be able to make daily attempts to engage with him. It is clear that the respondent will not move unless he is compelled to do so. It is therefore the only option. By definition, as required by the terms of section 1(3), it is the least restrictive option. In the light of the evidence, Mr Clarke therefore submitted that the respondent might reasonably be expected to comply with the decision to move him to the accommodation proposed at Blackfriars Street. I was therefore invited to grant the order and warrant sought in terms of section 70(1)(a) and (b) of the 2000 Act.

 

[128] I was also invited to refuse crave 1 of the respondent's minute to recall the guardianship order and to grant the renewal and variation sought in terms of crave 1(a) and (b) of the applicant's minute, number 10 of process.

 

 

Summary of submissions for the respondent

 

[129] Miss McGinty told me that there was no dispute that the respondent has a mental disorder. That disorder is Asperger's syndrome. However, the respondent functions at a high enough level to appreciate at least some of the limitations his condition places on him and to appreciate how these differentiate him from others. She also submitted that the respondent had expressed very eloquently the frustration he feels about the impact Asperger's syndrome has on his life. A particular focus of the frustration is the element of compulsion introduced into his life by guardianship. She submitted that it was important to bear in mind that an assessment of the respondent's capacity must always be not only in relation to section 58, 60 and 71 specifically, but also in relation to the powers sought. The assessment of incapacity should be specific to the adult and the tasks in hand - in this case the decisions which require to be made about the respondent's place of residence, the choice of support provider and the question of access to his place of residence. This particularly concerns the powers sought in the minute for renewal and variation. By contrast, the respondent was seeking a recall of the existing guardianship order and, accordingly, the decision-making ability of the Chief Social Work Officer in relation to the question of his place of residence.

 

[130] Miss McGinty reminded me that section 67(1) of the 2000 Act provides: "The adult shall have no capacity to enter into any transaction in relation to any matter which is within the scope of the authority conferred on the guardian... but that nothing in this subsection shall be taken to affect the capacity of the adult in relation to any other matter". I was therefore reminded that, apart from matters concerning the respondent's place of residence, the respondent retained capacity in relation to all other matters.

 

[131] Turning to the witnesses, Miss McGinty commented first of all on Dr Carson and Dr Preshaw. She submitted that they were very different personalities who had different specialties within psychiatry, Dr Carson being a neuro-psychiatrist and Dr Preshaw having been a consultant psychiatrist in the field of learning disability. Dr Preshaw had been involved in a number of assessments of capacity for guardianship applications in the course of his 35 years in practice. The purpose of his examination of the respondent was largely an assessment of his capacity.

 

[132] Turning to the question of capacity, section 1(6) of the 2000 Act sets out what "incapable" means. Miss McGinty submitted that, given that the meanings were person-specific and risk-specific, this could not be set in stone. She submitted that there should be no dispute about subsections (6)(b) ("making decisions"), (c) ("communicating decisions") and (e) ("retaining the memory of decisions"). Dr Carson had confirmed that the respondent's disorder was not a primary disorder of memory. In relation to subsection (6)(a) ("acting"), Miss McGinty submitted that this was of relevance in relation to section 58(1)(a) where reference was also made to the adult being incapable in relation inter alia to "acting" to safeguard or promote his interests in his personal welfare. She submitted that the word "acting" in the ordinary sense would mean to act on ones own behalf, such as to buy a bus ticket or to go to a supermarket to get shopping; these were actions as we would understand them. The respondent had many times in the course of his contact with both medical and social services shown himself capable of "acting". It was put to Miss McGinty that section 58(1) did not refer to an incapacity in relation inter alia to acting in a vacuum but referred to an incapacity in relation to "acting to safeguard or promote his interests... in his personal welfare". Miss McGinty submitted that an example of this was when the respondent had lived for about 10 years on his own. He had been able to describe making contact with social work services to maximise his state benefits.

 

[133] Miss McGinty also reminded me that Dr Carson had given a description of the circumstances in which the respondent had been admitted to the Royal Edinburgh Hospital in 2001. She also reminded me that it was a matter of general agreement that the respondent's condition is a static condition. She submitted that his mental disorder would therefore have been no better or worse in that 10 year period than it is at present.

 

[134] Miss McGinty reminded me of Dr Carson's description of the respondent as having presented at the Royal Edinburgh Hospital and Dr Carson's evidence to the effect that, simply because the respondent had presented himself, should not minimise the seriousness of the situation the respondent had been in. Dr Carson had spoken of increasing social isolation and the fact that one of the immediate precipitates had been a number of the respondent's friends having established their own lives, with the respondent feeling left out and left behind. Miss McGinty submitted that this was not a situation which would repeat itself. The respondent had also expressed his feelings at that time to Ian Ferguson of the Autism Society who had taken him to the Royal Edinburgh Hospital. This was evidence of the respondent "acting" to safeguard or promote his interests in his personal welfare. He had been thinking of killing himself but he had sought help. She submitted that this had also demonstrated some insight by the respondent into his social circumstances. When they became so difficult he had sought professional help. Miss McGinty submitted that the situation in 2001 became a bit of a red herring and that Dr Carson had stated that the circumstances then were specific to the time, but that there remained a risk to the respondent in terms of social isolation specifically.

 

[135] In relation to the issue of insight, if there was one thing which the respondent was afraid of it was social isolation, as was apparent from his evidence. It was submitted that he was quite clear in stating his vehement objection to the new accommodation proposed. It was therefore clear that this was a significant issue for him. In relation to the question of "acting", there had been evidence from both Dr Carson and the respondent that the respondent had sought legal advice and representation in relation to the various applications which have been made to the court in relation to him. Evidence had also been given by Mr Morrice and the respondent about efforts made by the respondent to obtain alternative accommodation after the closure of Greenhill Terrace was raised. The respondent had given quite detailed evidence about looking for accomodation, finding out how benefits would be paid, persuading the potential landlord to accept housing benefit and then obtaining a grant of housing benefit before being "frustrated by a lack of a reference" (he had sought one from Penumbra leaving out any mention of Asperger's syndrome and the guardianship proceedings).

 

[136] Miss McGinty also reminded me that the respondent had to some extent described himself as being able to find his own amusement. He had mentioned his pub quiz team, friends and visits to his aunt and uncle. He had also spoken about the contact he had had with the Autistic Society who had a "drop in" called "Number Six" in the New Town. These would seem to be steps which the respondent had taken on his own initiative. Miss McGinty submitted that these were all examples of the respondent "acting" to safeguard or promote his interests in his personal welfare.

 

[137] In relation to the issue of "understanding decisions" (referred to in section 1(6)(d)), Miss McGinty told me that she agreed that this was an important issue. However, she told me that she disagreed with Mr Clarke's submission about Dr Preshaw's evidence. She submitted that there had been confusion with Dr Preshaw looking at the issue of making decisions in isolation. She submitted that Dr Preshaw had in re-examination considered "understanding decisions" to include "a grasp of the consequences".

 

[138] Miss McGinty said that her understanding of Dr Carson's evidence was that his view was that the respondent's neuro-developmental disadvantage was such that he cannot understand the decisions which he makes. However, Miss McGinty submitted that the respondent was quite clear that he understood exactly what was being done to him, what was being offered to him and that he did not want that for the reasons he gave and that he preferred his alternative, namely sharing a flat with a group of others with no mental health issues and not on the autistic spectrum.

 

[139] Miss McGinty also submitted that the respondent had given evidence about his difficulties and the social limitations that they can impose on him. He was, she submitted, quite articulate in expressing the difficulties he has in group situations, in reading social cues, in relation to his ability to process information. He was, however, capable of expressing his opinions and of doing so with some feeling.

 

[140] Miss McGinty submitted that, in relation to the issue of "making" decisions, the respondent had consistently been "allowed", as she put it, to make the decision not to engage with the services around him. She submitted that Mr Hendry had described it as a fight not worth fighting, about choosing their battles. She suggested that this gave grave cause for concern about the variation sought, namely the additional power to authorise entry by the support providers into the respondent's place of residence. She submitted that, given the evidence which had consistently been against forcing too great a confrontation with the respondent, it was hard to see what the benefit of the variation - in the terms in which it was expressed - would be. (This was prior to the amendment subsequently allowed at the later By Order hearing). Mr Clarke had suggested that it would be used to clean the respondent's flat. However, Miss McGinty submitted that entry to clean would not be authorised by the second power sought. She submitted that, as the second proposed power was phrased, it was "less of a variation" and was "more of a provocation". This was because, given the respondent's attitude to intrusion, she could not see how the respondent was going to be encouraged to engage with persons who merely had the power to come in. She suggested that what had come out of cross-examination of Mr Hendry and Dr Carson was a lack of courage and unwillingness to take the bit between the teeth "if we are making you do this, you also have to do this, that and the other so you have to allow access to our home helps to clean the flat". Miss McGinty reminded me that she had suggested to Mr Hendry that home helps could go into the respondent's room when he was not there, but she thought that this was one of the fights that she maintained Mr Hendry had indicated would not be worth fighting.

 

[141] Miss McGinty submitted that section 1(6) was about the capacity or incapacity to act, to make, communicate and understand decisions; it was not about the quality of the decisions. It was about the five issues in relation to decisions which are mentioned in that subsection. Miss McGinty also referred to section 87(1) of the 2000 Act which provides that "mental disorder" has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Section 328(2) provides inter alia: "A person is not mentally disordered by reason only of the following - (g) acting as no prudent person would act". She submitted that this made the point that the issue was one of "incapacity" and was not one of "poor choices".

 

[142] Miss McGinty also drew my attention to the last sentence of section 1(6) which made it clear that the incapability as defined in that subsection had to be by reason of the mental disorder concerned. In other words, it must stem from the mental disorder.

 

[143] Turning to the general principles expressed in section 1 of the 2000 Act, Miss McGinty submitted that the key provision was section 1(2). Everything that followed was contingent on the test in that subsection being satisfied. The respondent was extraordinarily resistant to any idea of intervention in his affairs. He considers it discriminatory; that people see his condition and not the person. He resents the way he is treated differently because of his Asperger's syndrome. Miss McGinty told me that she conceded that various efforts had been made with the respondent, but added that, until now, they did not appear to have been particularly specialist in their nature. Dr Carson had indicated that those on the autistic spectrum could be taught various skills and that, although they may never have an intuitive feel for social situations, they could be taught how to behave in those situations.

 

[144] The respondent appeared to be in a catch-22 situation. She submitted that both Dr Carson and Mr Hendry agreed that guardianship had not "enhanced" the quality of the respondent's life. Dr Preshaw said that there had been a deterioration in his presentation between 2002 and 2009. Dr Carson confirmed that the respondent found the element of compulsion stressful, and that for anyone stress contributed to diminishing capacity. She submitted that there seemed to be a fixed idea that the respondent will not tolerate certain things so efforts are, she suggested, not made. She submitted that this left the respondent in a position where he finds being on guardianship stressful but that no one will use it to "enhance" his life in case it makes him more stressed. Her submission was that the second power sought in the minute for renewal and variation would only increase the stress for the respondent and would just allow support workers into his flat. The guardianship as it stands, and as it is proposed with the variation, would just be a source of confrontation and stress for the respondent.

 

[145] Miss McGinty submitted that no-one really knew what will happen if the respondent went into the community and suggested that that had never been tested. She submitted that there had never been an attempt to establish the respondent in a property with people of similar ability. When Miss McGinty was reminded about the respondent's own evidence that he does not want to live with people with mental health problems or with others on the autistic spectrum, she then submitted that there had been no testing of the respondent in a "normal" bedsit situation.

 

[146] Miss McGinty also submitted that, in the past, the absence of guardianship had not made a great deal of difference, for example, in the 18 month gap in 2006 and 2007. Miss McGinty accepted, however, that it was not clear the extent to which the respondent had really been aware of the gap in the guardianship at that point. She submitted, however, that it was clear that the respondent would not be abandoned if there was no guardianship. Health and social work services would still have a duty of care towards him and so efforts would continue to be made in relation to finding accommodation for the respondent.

 

[147] In relation to the section 70 application, Miss McGinty submitted that it was clear that if the respondent moved to Blackfriars Street there would be a benefit to others such as the residents and staff in Gilmore Place. However, she submitted the concern about the move would be the respondent's strength of feeling against it. The issue of benefit was therefore a vexed one in the respondent's case. Miss McGinty submitted that the consensus from the evidence seemed to be that the guardianship had not "enhanced" the quality of the respondent's life, that he finds it stressful and that it is a confrontational process. This had to be weighed against the evidence given by all of the witnesses, with the exception of the respondent, that guardianship protects the respondent at a very basic level and that it keeps him safe with a roof over his head. Dr Carson described it as being the "least worst scenario". Miss McGinty submitted that that was not entirely what guardianship was about. She submitted that, from all the evidence, the respondent had not been encouraged to exercise the skills he had or to develop new skills. In this connection, she made reference to section 1(5) of the 2000 Act which provides inter alia: "Any guardian... exercising functions under this Act or under any order of the sheriff in relation to an adult shall, so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his... personal welfare... and to develop new such skills".

 

[148] In relation to section 1(4), Miss McGinty accepted that there had been consultation with all concerned. Whether the intervention was the least restrictive, as referred to in section 1(3), was contingent on there being a benefit in the first place. However, the most important issue was that of capacity. If the respondent is not incapable, however bad or foolhardy his decisions may be, he would not come under the 2000 Act.

 

[149] As regards section 58(1)(a), Miss McGinty submitted that the respondent was undoubtedly capable of "making" decisions. She therefore submitted that the question arising was whether the respondent was "acting to safeguard or promote his interests in his personal welfare and was likely to continue to be so incapable". Her submission was that, for the reasons already given in her submissions concerning section 1(6), the respondent was also capable of "acting" in such a manner. However, Miss McGinty also told me that it was accepted that the respondent had a static syndrome and that, if he was incapable, that was unlikely to change.

 

[150] In relation to the minute for recall, Miss McGinty told me that her position in relation to section 71(1)(c)(i) was the same as that in relation to the application for renewal under section 60.

 

[151] In relation to section 71(1)(c)(ii), Miss McGinty submitted that further efforts could be made to work with the respondent on an informal basis. She suggested that Dr Preshaw's position had been that the respondent could stay on at Gilmore Place and that efforts would have to made to find some other compromise, the alternative being that the respondent finds himself his own accommodation. Miss McGinty also reminded me that the two options in section 71(1)(c) are alternatives and that the court need only be satisfied in relation to one of them. Consequently, even if the court was of the view that the grounds for appointment for a guardian were still fulfilled, if the court was nevertheless satisfied that the interests of the respondent in his personal welfare "can" be satisfactorily safeguarded or promoted otherwise than by guardianship, the court was given the power to recall the guardianship order. The court would therefore have to consider if there are such other means.

 

[152] Miss McGinty turned now to section 70 of the 2000 Act. She accepted that the weight of the evidence was very much against the respondent, that everyone thought that the move to Blackfriars Street would be a better option for him at present and that some benefit might be derived from the proposed new tenancy. In addition, the respondent does not wish to remain where he is at present and everyone agrees that Gilmore Place is not an appropriate placement for the respondent. However, the respondent does not agree with the proposed move for deeply held reasons. Despite the fact that the Old Town may be a place the respondent visits, I was told that he had always lived in another part of Edinburgh. She reminded me that Dr Carson and Dr Preshaw had given evidence about how important that was for someone with Asperger's syndrome. The respondent had expressed his fear of social isolation which he had particularly experienced in his own flat. Dr Carson had described this as having contributed to the crisis which resulted in the respondent's admission to the Royal Edinburgh Hospital. The respondent feels that such a move would be an extension of the interference in his life caused by guardianship. He resents this and used the emotive word "ghettoisation" to describe his unwillingness to be constantly with those with mental health problems and with those on the autistic spectrum. She submitted that it will be for the court to decide whether the guardian's decision was one which the respondent might reasonably be expected to comply with. The respondent had given his reasons for not complying with that decision.

 

 

Reply on behalf of the applicant

 

[153] Mr Clarke did not accept Miss McGinty's interpretation of Mr Hendry's use of the expression "some fights are not worth fighting". Mr Clarke told me that he had understood Mr Hendry to mean that, if staff were not going to win a fight, why upset the respondent, and not that they could not be bothered or that it was too much effort. Mr Hendry had made considerable efforts to find an appropriate place for the respondent.

 

 

By Order hearing

 

[154] Having given consideration to parties' submissions and the evidence, I took the view that the proposed terms of crave 1 (b) required to be further discussed. Crave 1 (b) as originally framed sought an additional power to the applicant as guardian to decide who the support providers are but also to authorise their entry into the respondent's place of residence. A By Order hearing therefore took place on 10^th September 2010. At this stage Mr Clarke made a motion to amend crave 1 (b) by adding at the end of the crave the following: "to allow them to clean his residence." The purpose of this was to make clear the particular purpose for which entry was being sought. This motion was opposed on behalf of the respondent. Miss McGinty told me that she could not point to any particular difficulty or prejudice which would be occasioned by the amendment proposed. She was asked whether she would wish to seek an adjournment in order to lead further evidence but said that she would not wish to do this. Her opposition was simply on the basis of "the benefit to be derived" by the respondent. She told me that she meant by this the question of the weight to be given to the benefit of the power to allow entry into the respondent's flat to clean it as compared with the confrontation this would be likely to lead to when compulsion was used. She also still questioned whether it would be the least restrictive option, but she did not elaborate further on this.

 

[155] I took the view that it would be appropriate to exercise my discretion in favour of allowing the amendment proposed as it seemed to me that it would be in the interests of justice to do so. It did not seem to me that the respondent would be unfairly prejudiced by allowing the proposed additional power to be amended in order to delineate and in effect limit the precise purpose for which the power of entry was being sought rather than leaving it in the general terms originally framed. This would be consistent with the requirement of section 1(3) of the 2000 Act in terms of which an intervention requires to be "the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention". The question of entry for the purpose of cleaning had been specifically explored in evidence, and Miss McGinty confirmed that she did not wish to seek to lead further evidence in the event of the amendment being allowed. The amendment made clear that the precise purpose for which entry was being sought would be for cleaning, and nothing else. I asked Miss McGinty if she wished to address the court further in relation to the amended terms of crave 1 (b), but she confirmed that she was content to rest with the points she had made when opposing the amendment.

 

 

Discussion

 

[156] Having regard to the terms of sections 1 and 58 of the 2000 Act, the first question arising is whether the respondent is incapable in relation to decisions about, or of acting to safeguard his interests in, his personal welfare, and is likely to continue to be so incapable.

 

[157] There is no dispute in the present case that the respondent is suffering from a "mental disorder", namely Asperger's syndrome. The issue is whether in the respondent's particular case the extent of his mental disorder is such that he is either incapable in relation to decisions or (my emphasis) of acting to safeguard or promote his interests in his personal welfare. It is clear from section 1(6) that any incapacity has to be as a consequence of the mental disorder.

 

[158] Both Dr Carson and Dr Preshaw gave evidence on the question of the respondent's mental disorder and capacity or incapacity. In relation to Dr Carson, I had no hesitation in accepting his evidence as being wholly credible and reliable. He was an impressive witness with professional qualifications and experience at a high level, as was evident from his extensive CV and from his evidence generally. He gave his evidence in a careful, thoughtful, reasoned and measured manner. He has particular expertise in the field with which these applications are concerned. He is the only practising consultant neuro-psychiatrist in Scotland. He has also been involved with the respondent since the late 1990's. Of significance also in my opinion is the fact that he was consultant psychiatrist in relation to the respondent when the respondent was in the Royal Edinburgh Hospital for about 6 months in 2001. In that capacity he was involved in carrying out extensive tests and assessments in relation to the respondent.

 

[159] By contrast, I did not find Dr Preshaw's evidence to be of material assistance in this case. In the first place, Dr Preshaw himself said at one point that he had only been involved in "one or two" higher functioning patients with Asperger's syndrome. Shortly after that, he then added that although he had worked with several Asperger's patients, he had not worked with "any" higher functioning Asperger's syndrome patients. Whichever is correct, it is clear that he did not have anything approaching the level of expertise in relation to patients functioning at the respondent's level as Dr Carson has. Dr Carson made it clear that the respondent was not on the category of Asperger's patients having a learning difficulty (learning difficulty being Dr Preshaw's specialist area). Dr Carson told the court that the respondent's disorder was primarily a disorder of brain development. This was his area of expertise. In the second place, prior to his report dated October 2009, Dr Preshaw had only interviewed the respondent twice, once in 2002 and once in 2009. His level of involvement with the respondent therefore did not come anywhere near comparing with that of Dr Carson's involvement with the respondent over the years. In addition, Dr Preshaw confirmed that he had proceeded on information given to him as a self-report by the respondent himself. He did not do any formal testing of the respondent. I noted, however, Dr Carson's evidence to the effect that, at first sight, the respondent's disorder might not be immediately recognisable. In the third place, in my opinion Dr Preshaw gave evidence which was less than satisfactory in a number of respects. On a number of occasions he stated an opinion but then found it difficult to provide a basis for it. This was in marked contrast to Dr Carson who invariably gave well reasoned explanations for his opinions. For example, Dr Preshaw had been permitted to sit in to listen to the evidence of Dr Carson. Dr Carson told the court that it became apparent following the respondent's admission to the Royal Edinburgh Hospital in 2001 that there was no depressive disorder. Dr Preshaw then gave to the effect that he thought that in 2001 the respondent was suffering from a depressive illness. When asked about the basis of this in the light of Dr Carson's earlier evidence, Dr Preshaw said that he thought that he had seen some reference to this in "a report", which he did not specify and which was not a production before the court. He also accepted that he had not himself seen the respondent in 2001. I had no hesitation in preferring Dr Carson's evidence on this issue. Indeed, for the avoidance of doubt, where ever there was a point of difference between Dr Carson and Dr Preshaw, I accepted and preferred the evidence of Dr Carson. Another example was when Dr Preshaw gave evidence that he thought that the respondent had been given options in too complicated language. However, when asked to clarify the basis for his saying this, he simply said that he had just got this impression. Again, this appeared to be on the basis of his having proceeded on self-reports from the respondent. I felt that this was an example of Dr Preshaw making an assertion for which there did not appear to be a particularly firm basis, if any. I therefore agreed with the criticisms made of Dr Preshaw by Mr Clarke in his submissions.

 

[160] On the question of whether the respondent is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his personal welfare, in terms of section 1(6), "incapable" means incapable of acting, making decisions, communicating decisions, understanding decisions or retaining the memory of decisions by reason of mental disorder. Consequently, in my opinion, where section 58(1)(a) refers to an adult being incapable "in relation to" decisions, that means much more than just being incapable of "making" decisions; it would also cover, for example, being incapable of "understanding" decisions in relation to his interests in his personal welfare or of "acting" to safeguard or promote those interests. Mr Clarke submitted that section 1(6)(a) ("acting") and (d) ("understanding decisions") were the applicable headings in this case. In my opinion, Mr Clarke was correct about that in the light of the evidence including, crucially, Dr Carson's evidence which I had no hesitation in accepting. The position therefore is that the neuro-developmental disorder which the respondent has presents as a disorder of metacognition, with a consequent deficit in insight, and a receptive language disorder. All of this is then compounded by a slow speed of processing. There is a diminished capacity to form a judgment in the absence of insight. Because the disorder limits the respondent's ability to understand what others thinks, this has a major effect on his decision-making. Dr Carson's opinion therefore was that the respondent cannot understand the social consequences of his actions and that he does not really understand the nature of the decisions he is making. Dr Carson was clear that the consequence of this was that the respondent cannot adequately look after himself. The duration of the respondent's incapacity is likely to be life-long. All of this I accepted.

 

[161] Miss McGinty submitted that the respondent understood what was being done to him and what was being offered to him, and that he had good reasons for not wanting to move to Blackfriars Street. I noted that when Miss McGinty was making submissions in relation to section 58(1), her submission was that the respondent was undoubtedly capable of "making" decisions. However, section 58(1) refers to a situation of an adult being incapable "in relation to" decisions about his personal welfare. As I have already observed, this subsection requires to be read in the context of section 1(6), with the result that section 58(1) is referring to more than just being incapable of "making" decisions. It would also include being incapable of "understanding" decisions about his personal welfare and of "acting" to safeguard or promote his interests in his personal welfare. In the course of his evidence, Dr Preshaw at one point appeared to indicate that merely "making" a decision and "sticking by it" would make someone capable. I pause to observe that this ignores the other meanings provided in section 1(6). He then appeared to indicate a need for an awareness of the consequences. However, he then appeared to retreat from that position when asked to clarify his position. It was therefore not at all clear to me what his position was about this. In the circumstances, it was difficult to have confidence in his evidence relating to this issue. In relation to "understanding a decision", Dr Preshaw was asked by Miss McGinty: "would this involve some grasp of the consequences?" He replied "yes" to this, but without any elaboration or explanation to clarify his position. This did not seem to me satisfactorily to clarify, or explain, what his position was and any reasons for it.

 

[162] In the light of the evidence, including the evidence of the respondent himself, I am satisfied that the respondent can "make" at least some decisions. For example, he has instructed solicitors to represent him in relation to the present applications. He has also "decided" that he does not wish to move to Blackfriars Street. That said, in the light of Dr Carson's evidence, it may be debatable whether the respondent is really capable of "making" decisions in relation to his interests in his personal welfare in the sense of being able to "form a balanced judgement", as referred to by Dr Carson. However, in the view of the fact that the respondent can technically "make" decisions, it may be that the respondent's condition falls more properly under the heading of "understanding" decisions in section 1(6)(d). In my opinion, it is certainly that in any event. I shall therefore proceed on that basis. I would also add that I accepted Miss McGinty's submission that section 1(6) is not about the quality of decisions, and that the issue is one of "incapacity" and not one of "poor choices". I have therefore also approached matters on this basis.

 

[163] Dr Carson explained that the consequence of the respondent's mental disorder was that he "cannot adequately look after himself". Many examples were given by Dr Carson, Mr Hendry and Mr Morrice about the ways in which this has manifested itself over the years and continues to do so. This included the evidence about his personal hygiene and his use of communal areas. These were, in my opinion, obvious examples of the respondent being "incapable" of "acting" to safeguard or promote his interests in his personal welfare. Other examples are his persistent refusal to engage with others attempting to provide support to him and his inability to live independently.

 

[164] At this stage, it is convenient to comment on the other witnesses from whom I heard in evidence. I found Mr Hendry and Mr Morrice to be credible and reliable witnesses in whose evidence I felt I could have confidence, as with Dr Carson. I was very impressed by both Mr Hendry and Mr Morrice. Mr Hendry has considerable experience in the field of mental health. He came across as having taken a great deal of trouble to familiarise himself with the respondent's situation and my impression was that he had given a great deal of careful thought as to what was best for the respondent. Mr Morrice was likewise a very careful and thoughtful witness. He clearly knew the respondent very well.

 

[165] In relation to the evidence given by the respondent, it was impossible not to be moved by his evidence. The sense of frustration and anger he feels about his condition and its consequences was palpable, and all too understandable. In particular, it was very obvious that he does not feel that he is viewed as a "person"; rather as the condition he has. I would also record that the respondent was relatively articulate in giving his evidence. However, I did note a distinct tendency to use what seemed to me to be quite a number of "stock" repetitive phrases and words. However, although I thought it unlikely that the respondent was intentionally being untruthful in his evidence, where his evidence differed from evidence given by Dr Carson, Mr Hendry and Mr Morrice, I preferred the evidence of the latter three witnesses as they all seemed to me to be far more reliable and did not seem to me to have any reason to be untruthful in their evidence. For example, the respondent flatly denied any problems with hygiene and any problematic behaviour in communal areas. It may be that the respondent truly believes what he says on such matters, or that he is for some reason not willing or able to acknowledge it. However, in my opinion, it was very clear from the evidence of Mr Morrice and Mr Hendry that there are real problems about these issues as they both described. And these are coupled with further issues such as the respondent's attitude and behaviour towards staff and fellow residents and his lack of willingness to engage with others attempting to provide support to him. Indeed, the position is quite the opposite as members of staff have felt threatened and intimidated by the respondent. This may or may not have been the respondent's intention, but I am satisfied that this is what has happened as a matter of fact. It is therefore a fact that other people find it extremely difficult to tolerate his behaviour. This makes the concept of his living in shared "normal" accommodation almost impossible to envisage. I also had to bear in mind that the respondent's evidence had to be viewed in the context of the evidence about his condition, which includes not only the question of lack of insight on his part but also a communication deficit.

 

[166] As to whether the respondent is likely to continue to be incapable, it was clear from the evidence of Dr Carson that the respondent's condition is a lifelong, static one. Dr Preshaw did not dispute this. It follows that this is therefore likely to continue to be the situation. I pause to observe that at one point Miss McGinty submitted that, because there was general agreement that the respondent's condition was a static condition, his mental disorder would therefore have been no better or worse in the 10 year period before his admission to the Royal Edinburgh Hospital than it is now. This may or may not be the case. This proposition was not put to Dr Carson in cross-examination and Dr Preshaw did not say this in his evidence either. As I say, therefore, this may or may not be accurate, but there was no actual evidence to support this particular contention. Be that as it may, it was not entirely clear but the suggestion may have been that, because the respondent had lived in the community during that 10 year period, he could do so now as well. If that is the case, it has to be recorded that that period in the community ended badly, with the respondent's admission to the Royal Edinburgh Hospital because he could not cope. As Mr Hendry explained, by that stage the condition of the flat in which he had then been living had become unsanitary and all attempts to help him had been rebuffed. He would not allow his family into his flat.

 

[167] The next question is whether any other means provided by or under the Act would be sufficient to enable the respondent's interests in his personal welfare to be safeguarded or promoted. It was not suggested that there would be any other such means.

 

[168] The next question arising (by virtue of section 71(1)(c)(ii)) is whether the respondent's interests in his personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship. In relation to this issue, I am not satisfied that the respondent's interests in his personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship. It was clear from Mr Morrice's evidence that the respondent cannot remain at Gilmore Place. He will therefore have to move somewhere else. The respondent expressed a strong desire to live in "normal rented" accommodation sharing with others. He did not wish to live with people with mental health problems or with others on the autistic spectrum. Initially, Miss McGinty submitted that there had never been an attempt to establish the respondent in a property with people of similar ability. However, when she was reminded about the respondent's own evidence that he does not want to live with people with mental health problems or with others on the autistic spectrum, she then submitted that there had been no testing of the respondent in a "normal" bedsit situation. However, in the light of the evidence of Dr Carson, Mr Hendry and Mr Morrice, I am satisfied that the prospects of his being able to cope independently in a "normal" bedsit situation are very low indeed. It is in any event not what the respondent himself had wanted. His repeatedly expressed desire is to live in "normal" shared accommodation.

 

[169] In my opinion, if there was no guardianship order, the likelihood is that the respondent would move into unsupported accommodation and the difficulties apprehended by Dr Carson, Mr Hendry and Mr Morrice would be likely to arise again. Even Dr Preshaw conceded that it would not be appropriate for the respondent to try and live in shared unsupported accommodation, his position being that it would be "okay" if the respondent continued to live at Gilmore Place. However, that is not an option. Mr Hendry was of the view that if the respondent moved into unsupported shared accommodation this would not work as he cannot live alone or with others in unsupported conditions, and he shared the fear of the respondent's parents that the respondent would end up reverting to the position he was in, in 2001. This was also Dr Carson's fear. Dr Carson did not think there was "any prospect" of "normal" shared accommodation working as the respondent does not have the social skills to share an environment with someone else. There continue to be major issues with his personal hygiene even in the current supported accommodation. Dr Carson's view was that the continuing problems the respondent has would not be tolerated by others in a situation of a shared "normal" flat. If guardianship was not in place, as to the prospects of success of voluntary support, Dr Carson was not optimistic as all attempts by a range of people to date had failed. As he put it: "That has been the constant problem". This fitted with Mr Morrice's view that the respondent would not be able to sustain living in a shared "normal" flat. He referred to the respondent's refusal to engage with attempts by staff at his current placement to teach him life skills. As I record above, Dr Carson also told the court that it would be "bordering on negligence" to proceed on the view that, because the respondent had previously presented himself to the Royal Edinburgh Hospital in 2001 when feeling suicidal, he would do so again. I noted Miss McGinty's submission at one point to the effect that the situation in 2001 had been a bit of a "red herring". I do not accept that contention. I am satisfied in the light of the evidence of Dr Carson and Mr Hendry that it was a highly relevant episode. It was for that reason also that I shared Mr Clarke's concerns, as explained in his submissions, about Dr Preshaw not having seen any apparent relevance in the respondent's admission to the Royal Edinburgh Hospital in 2001, and having made no mention of it in his report, no 7 of process. I am therefore not satisfied that the respondent's personal welfare can be satisfactorily be safeguarded or promoted otherwise than by guardianship. I do not consider that they can be.

 

[170] I am therefore of the view that both of the conditions in section 58(1) are met, and, for the avoidance of doubt, that the conditions in section 71(1)(c)(i) and (ii) are not met. This means that conditions for recall of the guardianship order are not made out. The application, no 6 of process, therefore falls to be dismissed. However, as regards the application for renewal and variation of the guardianship, no 10 of process, I now require to give effect to the general principles set out in section 1(2) to (4) of the 2000 Act.

 

[171] As to the first principle set out in section 1(2), the applicant's position is that the intervention in the form of a guardianship order will benefit the respondent and that such benefit cannot reasonably be achieved without that intervention. Miss McGinty submitted that the issue of "benefit" was a "vexed one". However, Dr Carson, Mr Hendry and Mr Morrice were all firmly of the view that renewal of guardianship would be of benefit to the respondent. Dr Preshaw also considered that there would be some, albeit in his view limited, benefit. As Mr Clarke submitted, ultimately, the benefit is to keep the respondent healthy and safe. He would continue to be housed safely. Dr Carson's position was that it would at very least make sure the respondent was in a safe and secure environment. There would also be ongoing monitoring so that problems would be spotted and steps could be taken to address them. Dr Carson therefore saw this as having a "protective" element. As to the second power sought in the application for renewal and variation, Dr Carson was of the view that this would be "highly beneficial" as it would mean that checks could be made to keep some form of monitoring that the respondent was in a safe and clean environment in his flat, such as in relation to basic sanitation and hygiene. All attempts to provide more benefit have been unsuccessful to date. I am satisfied that it has been exceedingly difficult, if not impossible, to get the respondent to co-operate with any support. In the light of the evidence of Dr Carson, Mr Hendry and Mr Morrice, I am satisfied that the benefit to the respondent of the guardianship could not, and cannot, reasonably be achieved without that intervention. I cannot see any realistic way in which that benefit could be achieved without guardianship. I have already referred to the difficulties and consequent risks which I am satisfied would be likely to arise again if the respondent were to be left to his own devices without guardianship.

 

[172] As to the second principle set out in section 1(3), Mr Clarke's position was to the effect that an order in the terms sought in crave 1 of the minute for renewal and variation would be the least restrictive option in relation to the freedom of the respondent, consistent with the purpose of the intervention. In relation to the second power sought in crave 1 (b), the focus of Miss McGinty's submission was in relation to that part of the crave seeking to authorise entry by the support providers into the respondent's place of residence. She submitted that the power sought in crave 1(b) was "less of a variation" and was "more of a provocation". It would just be a source of confrontation and stress for the respondent. As she clarified at the By Order hearing in relation to crave 1 (b), this had to be weighed against the benefit of the power. In all the circumstances, I take the view that an order in the terms sought in crave 1, as amended, would not only be of benefit to the respondent but that it would also be the least restrictive option in relation to the freedom of the respondent, consistent with the purpose of the intervention. The effect of the amendment to crave 1 (b) was to specifically delineate and limit what the support providers could do on entry into the respondent's flat. In coming to this conclusion, I recognise that the respondent is likely to regard this as being intrusive and that there may be the potential for confrontation. However, I take the view that the need for the respondent to be in a safe and clean environment in his flat, such as in relation to having basic sanitation and hygiene, is an absolutely basic need and that, in the light of the evidence, it is clear that there have been serious problems in relation to the issue of the respondent's hygiene over the years. I have no confidence that he would cope adequately in this respect on his own in his new flat or that he would allow others in to clean on a voluntary basis. I also noted Dr Carson's evidence to the effect that such a power is "generally used in a light touch fashion. It is about forming a relationship." Such an approach would be consistent with section 1(3). If the applicant as guardian considers that a power of entry to the respondent's flat is in future required for any other purpose, a further application will have to be made to the court in due course.

 

[173] In relation to section 1(4), there was no dispute that the views of all concerned had been ascertained. I have therefore taken all of these views into account as I am directed to do. This includes the wishes and feelings expressed by the respondent himself. He is strongly opposed to the guardianship continuing. His feelings and wishes are entirely understandable, and it is impossible not to feel very great sympathy for the predicament in which he finds himself and the very great frustration he clearly feels. While it is very clear that the respondent does not wish to move to Blackfriars Street, I have concluded that Dr Carson, Mr Hendry and Mr Morrice are all better placed to express reliable, informed and considered views as to how his personal welfare would best be safeguarded and promoted. I therefore take the view that it would not be appropriate to give effect to the respondent's wishes in the circumstances of this case. If they were to be given effect to, I consider that a steady deterioration in the respondent would be almost inevitable and that, as Dr Carson put it, "realistically we would be back here (in court) in 3 or 4 months time". As I have already indicated, I do not consider that there is any realistic prospect of "normal" shared accommodation working. I accept Mr Hendry's view that the respondent cannot live alone or with others in unsupported conditions. I therefore conclude that Miss McGinty's suggestion of testing the respondent in a normal bedsit situation would not be a feasible proposition. By contrast, in all the circumstances, it seems to me that the risks to the respondent's health and welfare would be likely to be significant if he was no longer subject to guardianship.

 

[174] I shall therefore grant the application for renewal of the guardianship for a period of three years. I was not asked to determine whether the period concerned should subsist for a shorter period than that.

 

[175] Turning, finally, to the application, no 8 of process, for a non-compliance order and warrant in terms of section 70 of the 2000 Act, the question next arising is whether a decision of the guardian has not been complied with by the respondent and whether the respondent might reasonably be expected to comply with it. Mr Clarke submitted that this condition was satisfied. There was no dispute that the guardian wishes to move the respondent to a single person flat in the core and cluster accommodation at 59/2 Blackfriars Street, Edinburgh and that the respondent has refused to move there. As to whether the respondent might reasonably be expected to comply with the guardian's decision, Miss McGinty accepted that the weight of the evidence was very much against the respondent as everyone apart from the respondent thought that the move to Blackfriars Street would be a better option for him. I quite appreciate that the respondent does not agree with this, and in strong terms. However, the fact is that he cannot remain where he is at present. I am satisfied that the respondent's preferred option is not a feasible one. In all the circumstances, it is in my opinion clear that, viewed objectively, the guardian's decision to move the respondent to Blackfriars Street is a decision with which the respondent might reasonably be expected to comply. I therefore conclude that the condition in section 70 is met.

 

[176] I therefore now require to consider, in the exercise in the discretion conferred on me by section 70(1), whether this application should be granted. Here also I require to give effect to the general principles set out in section 1(2) to (4). In my opinion, the intervention in the form of a section 70 order and warrant would be of benefit to the respondent as it is the only way of achieving his move to Blackfriars Street, which everyone other than the respondent considers is the better option for him. It is clear that he will not move unless compelled to do so. Such an order and warrant is also the least restrictive option in relation to the respondent's freedom, consistent with the purpose of the intervention because there is no alternative in view of the respondent's refusal to move. As explained, I have taken into account the feelings and views expressed by him against taking this course. However, I have felt it necessary to conclude that the other considerations to which I have referred in paragraphs [171], [172] and [172] overwhelmingly demonstrate that his feelings and views should not be given effect to in all the circumstances. I shall therefore also grant the section 70 application for the order and warrant sought.

 

[177] I agree with Mr Clarke's submission about Mr Hendry's mention of "what is worth fighting for". I did not interpret this as meaning that staff could not be bothered or that something was too much effort. I therefore agree with Mr Clarke that Miss McGinty's interpretation of Mr Hendry's evidence about this was not a fair one in the circumstances.

 

[178] For the avoidance of doubt, I took into account Miss McGinty's submission concerning section 67(1) of the 2000 Act, namely that the respondent retains capacity in relation to all other matters. This also confirms that the guardianship in the present case is in that sense relatively limited in its extent. In this connection, I noted Dr Preshaw's observation about the powers sought by the applicant in the present case being "very limited".

 

 

Decisions

 

[179] In all the circumstances, and for all of these reasons, I shall refuse the application, no 6 of process, for recall of the guardianship, grant the application, no 10 of process, for renewal and variation of the guardianship and shall grant the application, no 8 of process, for an order and warrant under section 70(1)(a) and (b) of the 2000 Act.

 

 

Expenses

 

[180] Both parties confirmed that there would be no motions for expenses. I therefore make no order in this respect.