Scottish Sheriff Court Decisions

Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult

Application in respect of DC

Glasgow Sheriff Court 22 October 2010

Sheriff J A Baird

1. On 21 October 2010, an application in terms of the Adults with Incapacity (Scotland) Act 2000 was received at this court for the grant of powers of guardianship relating to the financial affairs and the welfare of an adult.
2. The application sought to dispense with intimation of the application on the adult, referring to sections 7(1)(d) and 11(2) of the Act. There is a power which the court has to order that such an application need not be intimated on an adult, but those provisions quoted in the application do not regulate it.
3. In an Opinion I issued on 19 May 2005, in the Application in respect of Mrs LC (Scottish Courts Website- unreported), I addressed the issue of the court dispensing with the obligation for an application under the Act to be intimated to the adult.
4. Service of applications under the Act is regulated by the provisions of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, which by virtue of Rule 3.16.4(1)(a) stipulates that service shall be made on the adult. Section 11(1) of the Act provides that where apart from the provisions of section 11(1), intimation of any application would be given to an adult "and the court considers" that the intimation "would be likely to pose a serious risk to the health of the adult" the court may direct that intimation shall not be given. Rule 3.16.5 of the Rules quoted above provides that where in any such application two medical certificates are produced stating that intimation to the adult would be likely to pose a serious risk to the health of the adult, the sheriff may dispense with such intimation.

5.     In the case of Mrs LC (supra), I said this, "The requirement to intimate any such proceedings to the adult who is affected by them, and who routinely will as a result of the application be deprived of the right to make decisions of the most basic kind regarding his or her welfare, including the right to decide where to live, is a most important and critical step in the process, and even though I am regularly told that an adult is no longer capable of understanding the documents served or the import of them, it should not be dispensed with unless the court has clear and specific information which will entitle it to come to a view that intimation, by itself, would be likely to pose a serious risk to the adult's health", and went on to say that In my view, "the ordinary principles of administrative law apply here and ... [that] a medical practitioner ought to be able to give a reason for being of that opinion and state that reason concisely and articulately so that the court has proper information on which it can then form a view on the matter."

6.     In commenting on the terms of section 11(1) of the Act in his textbook, "Adults with Incapacity Legislation" (W. Green 2008) at page 30, Mr Adrian Ward refers to my decision in the case of Mrs LC (supra) and also observes that "Having regard to ECHR and s.1 principles, the courts require robust evidence before exercising discretion to dispense with intimation or notification".

7. In the present case, there has been submitted along with the application a form, completed by two medical practitioners, one of whom is approved for the purposes of section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003, purporting to justify dispensing with intimation.
8. However, that form, officially produced under authority of the Adults with Incapacity (Evidence in Relation to Dispensing with Intimation or Notification) (Scotland) Regulations 2001 (SSI 2001/79), has no application in the present circumstances. The Regulations just referred to have no application to the provisions of section 11(1) of the Act.
9. They refer only to the provisions of section 11(2), which provides that in cases where the Public Guardian has a requirement to intimate or notify a matter to an adult, and the Public Guardian considers that the intimation or notification would be likely to pose a serious risk to the health of the adult, then the Public Guardian shall (and not "may", which is the word used in relation to the function of the Court) not give such intimation or notification.
10. Further, in the notes attached to the form which are clearly meant as guidance to the medical practitioners, it is pointed out that one of them must be "approved for the purposes of section 20 of the Mental Health (Scotland) Act 1984, a provision which is of course long superseded by the 2003 Act.
11. The form itself, produced by solicitors in support of an application to the court for guardianship, also states in terms that the opinions are given in respect of an application to the Public Guardian under section 26 of the Act for authority to intromit with funds.
12. In every way, then, this form is wholly inappropriate for submission for the purposes for which it was submitted.
13. Finally, on the format of the certificates contained in the form, it is disappointing to note that only two lines are provided to enable the medical practitioner to state a cogent reason as to why intimation or notification should be dispensed with.
14. As to the content, and remembering that it is only if the fact of intimation itself would be likely to pose a serious risk to the health of the adult that may lead to dispensing with the requirement, one of the certificates says simply, "He is too disturbed and mentally ill", which I do not think is sufficient to satisfy the test anyway.