Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

 

AW75/12

JUDGMENT   of   SHERIFF ALASTAIR G D THORNTON, ESQ   in summary application   for an order under the Adults with Incapacity (Scotland) Act 2000   at the instance of   CJR Applicant   in respect of the Adult   JMR _____________

Act: Miss McDowall, solicitor, Dundee

 

Kirkcaldy 27 February 2013. The sheriff, having resumed consideration of the cause, makes the following findings in fact and in law:-

[1] The adult has a mental disorder, namely severe learning disability and autism.

[2] By reason of that disorder the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs and personal welfare, and is likely to continue to be so incapable.

[3] No other means provided by or under the Adults with Incapacity (Scotland) Act 2000 would be sufficient to enable the adult's interests in his property, financial affairs or personal welfare to be safeguarded or promoted.

[4] The granting of the guardianship order in the terms sought in the application will be of benefit to the adult.

[5] That benefit cannot reasonably be achieved without the order being pronounced.

[6] The order sought provides the least restrictive option in relation to the freedom of the adult, consistent with the purpose of safeguarding or promoting his interests in relation to his property, financial affairs and personal welfare.

[7] The applicant is a suitable person to be appointed guardian in relation to the adult's property, financial affairs and personal welfare.

[8] The powers sought to be granted to the guardian are appropriate and will benefit the adult.

[9] A period of 10 years is appropriate for the duration of the guardianship order.

 

Therefore grants the first crave for the applicant and makes an order under section 57 of the Adults with Incapacity (Scotland) Act 2000 and appoints CJR to be financial and welfare guardian to JMR, for a period of 10 years from this date, with the following powers to:-

 

Financial

1. deal in any way with a tenancy or lease for the adult;

2. claim, receive, vary or appeal on behalf of the adult all benefits, allowances, services, financial contributions, repayments, rebates and the like to which the adult may be entitled or for which the adult may become entitled and to apply, complete and submit all forms in connection with such requests;

3. receive and deal in any way with direct payments from the local authority or payments from the Independent Living Fund or any similar organisation for the adult;

4. collect, sue for, petition, receive, discharge and settle all sums, property or rights due or which may become due to the adult;

5. draw cheques on and sign forms of withdrawal to uplift money from, credit money to, or open or close any account in the adult's name including accounts held jointly with other persons;

6. authorise expenditure for any service or for the purchase of any item which is required for the adult's benefit, and pay any accounts incurred by the adult or for his benefit;

7. exercise any right of access which the adult has in relation to any information, personal data and records in relation to his financial affairs;

8. raise or defend or compromise any actions or judicial or other proceedings in which the adult is or may be interested so far as the guardian may consider necessary or expedient;

9. employ solicitors, factors, stockbrokers, investment managers, bankers or other agents, delegate powers to them and to pay them the usual fee for their services;

10. sign any deed or other document necessary to enable the guardian to implement the powers granted under this application;

11. be reimbursed for any reasonable outlays or out of pocket expenses incurred while acting on behalf of the adult as his financial guardian;

Welfare

12. decide where the adult should live and the level of care and supervision that may be appropriate;

13. arrange and where necessary consent or withhold consent to any medical or dental treatment for the adult;

14. pursue, defend or compromise any legal action on the adult's behalf involving his personal welfare;

15. make decisions on the adult's dress, diet and personal appearance;

16. make decisions as to who the adult may meet, communicate with, and in whose care the adult may leave any facility;

17. make decisions on the social and cultural activities that the adult will pursue;

18. arrange for the adult to undertake work, education or training;

19. take the adult on holiday or authorise someone else to do so;

20. have access to personal and confidential documents or information relating to the adult's welfare held by any organisation where the adult would have access to such documents or information; and

21. be reimbursed for any reasonable outlays or out of pocket expenses incurred while acting on behalf of the adult as his welfare guardian.

 

Dispenses with the need for any caution to be found and dispenses with the need for a management plan to be submitted to the Public Guardian.

 

 

 

 

Sheriff

 

 

NOTE

 

[1] This application was presented to the court on 22 November 2012. It is unopposed. However the report of the mental health officer appointed by Fife Council, Mr Ian Wilkinson, which was lodged with the application, indicated that in his view guardianship would not be the least restrictive option. He stated that an intervention order would allow the applicant to sign an occupancy agreement on J's behalf and that J's ongoing welfare needs might continue to be met through the care programme approach and the involvement of social workers seeking consensus with J's parents. He also suggested that J's finances, which are limited to his receipt of benefits, could be managed through appointeeship, and that medical treatment could be authorised by medical certificates under section 47 of the Act. Finally he indicated that the local authority would continue to provide support by way of section 13ZA of the Social Work (Scotland) Act 1968.

[2] At a preliminary hearing on 15 January 2013, which I asked Mr Wilkinson to attend, he maintained his view that most of J's needs might be met without guardianship. Notwithstanding the views of the mental health officer, the applicant moved me to grant the application. I was satisfied on the basis of the medical and other reports lodged with the application that J has a mental disorder which makes him incapable of making decisions in relation to his financial affairs and personal welfare, or of acting to safeguard or promote his interests. Accordingly the only material issue with which I was concerned was whether guardianship would be the least restrictive option for J. In order to resolve matters, I fixed a further hearing for evidence to be led. This hearing took place on 15 February 2013.

[3] At the hearing I heard evidence from the applicant himself, from his partner AM, from Mr Wilkinson and from J's social worker, Daniel Anderson. All the witnesses were very pleasant individuals who were entirely credible and reliable as regards matters of fact.

[4] On the basis of that evidence, it is clear to me that J, who is 19 years old, suffers from autism, learning disabilities and attention deficit disorder. He also has hearing loss and is partially blind. He is looked after by his father, the applicant, and AM at weekends, and during the week his grandmother takes care of him. J's mother has only occasional contact with him. J is unable to tell the date or time. He has no appreciation of his age, nor what year it is, nor the place. He is incapable of making any practical decisions. He needs a package of care 24 hours a day, and 7 days a week. That package has to be reviewed on a regular basis. Now that J has reached his present age, everyone involved with him agrees that it is time for him to move on and live outwith his father's home. A suitable supported place has been identified for him, which would be a joint tenancy with one other young adult. This accommodation would be supported by care from Fife Council. In order to allow him to move to this accommodation, a lease requires to be signed and the care package to support him there requires to be determined. A number of important decisions require to be made now and in the future.

[5] At present J is fully cooperative with the care he receives however he has become out of control on an occasion in the past when he was living with his mother. She was unable to cope with him. He was over-excited, frightened, unhappy and making disturbing noises. He was assessed by mental health practitioners at the time and as a consequence was accommodated in a secure psychiatric hospital for a period of two weeks.

[6] I was referred to a number of authorities by the applicant's solicitor, Miss McDowall. Article 5 of the European Convention on Human Rights states that all individuals have a right to liberty and security. I respectfully agree with the views expressed by Sheriff Baird in Muldoon, applicant 2005 SLT (Sheriff Court) 52 and by Sheriff McDonald in M, applicant 2009 SLT (Sheriff Court) 185. In particular I agree with Sheriff Baird's conclusion in Muldoon that where an adult is compliant with a care regime but legally incapable of consenting to or disagreeing with it, as is the case with J, then the adult is deprived of their liberty in contravention of article 5(1) of the European Convention, and that such a step should not be taken without express authority governing it. I agree with the two learned sheriffs that in such a situation, the least restrictive option is one which grants powers of guardianship in terms of the relevant statute.

[7] The legal position set out in the above cases applies to J. Although he is compliant with those who care for him he is nevertheless profoundly incapable. He cannot consent to or agree with his care regime. His compliance and the consensus of his family and his carers cannot be held to amount to his consent for him to stay in his new accommodation. The effect of J's incapacity is that, notwithstanding his compliance with family and carers, he is deprived of his liberty in contravention of article 5(1). He has no capacity to consent to his placement in supported accommodation or to agree with his family's views on his care. Informal arrangements for him to stay there would provide no legal authority for him to stay in that accommodation. I agree with Miss McDowall's submission that decisions about J's welfare and financial affairs should be made by his father, the applicant, under the supervision of the state, rather than the state making decisions about James without requiring to consult his father. Although the social workers say that they would always seek agreement, the evidence given by the applicant about the time when J was removed to a secure psychiatric hospital from his mother's home, demonstrates that it may not always be possible for there to be agreement. As Miss McDowall also pointed out, J's parents are divorced, and it is reasonable to anticipate that differences of opinion between divorced parents may occur. In my view if there is to be intervention in J's life, that must be undertaken by a person who has been appointed through the due process of law. No one should be entitled to act as a de facto guardian. I endorse the general proposition that any intervention with appropriate authority is less restrictive than an intervention without authority.

[8] In relation to the proposed use of section 13ZA of the Social Work (Scotland) Act 1968, I agree with Miss McDowall's submission that, while the provision could be used to remove J to new supported accommodation, it could not be used to keep him there. Sub-section (2) provides that the steps that may be taken by the local authority include moving the adult to residential accommodation. There is no provision in that section which would permit J to be kept there or would allow for him to be returned there if he left. The Guidance for Local Authorities: Provision of Community Care Services to Adults with Incapacity (CCD5/2007), paragraphs 23 and 24, indicate that the local authority's powers and duties under the 1968 Act would not be sufficient to allow the authority to move an adult to a care home or make other significant changes to care arrangements in circumstances where the adult would be deprived of his or her liberty under article 5, ECHR. Since J is compliant but legally incapable of consenting or agreeing to the care regime, and thus is deprived of his liberty, it seems clear that the use by the local authority of its powers under section 13ZA of the 1968 Act would be in conflict with the Guidance. I have also had regard to a most helpful article by Adrian D Ward entitled "Adults with Incapacity: Freedom and Liberty, Rights and Status: Part 1" which appeared in 2011 SLT 21-25. At page 24 Mr Ward states:-

 

"In adult incapacity law, therefore, "restriction of freedom" is a broad and comparative principle. In procedural terms, intervention under part 6 is less restrictive of an adult's freedom than intervention under section 13ZA, and both are less restrictive than intervention without any such authority - which may nevertheless be justifiable, for example on grounds of necessity, or by applying the principle of proportionality to minor interventions. However the outcomes of interventions may in physical terms be restrictive of freedom, on a scale on which more extreme such restrictions may amount to a deprivation of liberty. In accordance with the guidance, an intervention likely to result in deprivation of liberty can be authorised under part 6, but not under section 13ZA. Section 13ZA(2) sanctions moving a compliant but incapable adult to residential accommodation under section 13ZA procedure provided that the regime there will not amount to a deprivation of liberty, and provided that the criteria in section 13ZA and the guidance are otherwise met. However, if a part 6 order is sought and the criteria for such an order are met, that will always provide preferable authorisation for such a move, not by reference to the concept of deprivation of liberty, but because authorisation under part 6 procedure is less restrictive of the adult's freedom."

 

[9] I find Mr Ward's comments to be helpful and persuasive. Accordingly I am satisfied that, even if moving J to supported accommodation using section 13ZA(2) would not amount to a deprivation of liberty, it would certainly involve a restriction of his freedom, whereas a guardianship order would provide preferable authorisation for such a move, and would thus be less restrictive of J's freedom.

[10] In relation to Mr Wilkinson's remark that J's finances could be managed through appointeeship, Miss McDowall submitted that in practice there would be no difference between the way in which appointeeship would allow J's funds to be managed compared with guardianship. Since guardianship provides a significantly greater degree of accountability, I am satisfied that guardianship would be both more beneficial and less restrictive.

[11] Turning to the use of section 47 certificates to authorise J's medical treatment, it was submitted on behalf of the applicant that these could not be used to authorise ongoing medical treatment for an indefinite period. That is clear from the terms of the section itself. In the case of Muldoon to which I have referred above, Sheriff Baird took the view that a guardian should have the power to arrange and consent to medical treatment for the adult. I agree with Sheriff Baird's view that it would not be acceptable for medical intervention to be dealt with on an ad hoc basis, and again it seems to me that granting such powers to the applicant in the present case would be less restrictive than an indefinite series of section 47 certificates.

[12] In relation to an intervention order to allow the tenancy for the supported accommodation to be entered into, it was submitted on behalf of the applicant that such an order would allow the single act of entering into the tenancy. However J's tenancy will require on-going management on his behalf. If for any reason the tenancy did not operate to J's benefit then guardianship would allow it to be terminated and a new agreement put in place. A one-off intervention order could not achieve this. If there were problems there would have to be further applications made to the court. I agree that an intervention order of this kind would not meet J's needs and potential needs.

[13] Generally it is clear that J's needs are quite complex, and it cannot be precisely predicted what the future will hold for him. In my view it is not appropriate for a variety of different measures such as those suggested by the mental health officer to be relied upon when a guardian could be appointed to take all the necessary decisions. I am not satisfied that any assortment of simpler options could cover all the situations which J is likely to encounter. Repeated applications to the court for further intervention orders are likely to lead to delay, unnecessary work and expense, and possible inconsistencies. Moreover J's is entitled to have decisions made quickly on his behalf by the person who knows him best, namely his father, the applicant. It is best for J that his father makes any decisions which will affect J's freedom of choice.

[14] It appeared to me from the evidence of Mr Wilkinson and Mr Anderson that their concerns about the least restrictive option had much to do with their perception that the status quo had operated quite successfully over a number of years, and would provide simpler options. Importantly Mr Wilkinson said that he did not necessarily think that guardianship would be unduly restrictive for J. He conceded that there were arguments in favour of guardianship, and indicated that he felt it was a matter of "shades of grey". His understanding was that the current care plan had been developed by others through a process of consensus between the local authority and the family. When asked what would happen if it were difficult to obtain the views of the parents or they were not available, he thought that the local authority would continue to try to achieve some form of consensus. When asked what would happen if one of the parents took a different view to that of the social work department, he accepted that there would be potential for disagreement. It was put to him that J might not always be fully cooperative, but he said that had not happened as yet.

[15] My impression was that the status quo is perceived as possessing the benefit of simplicity, as opposed to guardianship which is seen by the mental health officer as more complex and intrusive. However I think it is correct to focus on the precise terms of section 1(3) of the 2000 Act which states that where it is determined that an intervention 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" (my emphasis). For the reasons which I have set out above, I agree with the conclusions of Sheriff Baird in Muldoon and Sheriff McDonald in M, applicant that the least restrictive option where an adult is compliant with a regime but legally incapable of consenting to or agreeing with it, as in J's case, is guardianship.

[16] I am satisfied that the guardianship order sought by the applicant would protect J and allow decisions to be made on his behalf. The best interests of J would be served by allowing his father to take decisions for him. The effect of the guardianship order being made will be that there will be less direct interference in J's life so far as decision making is concerned. I consider that this is of benefit to J. Because of J's lack of understanding and his difficulties in communication, it has not been possible to ascertain his specific wishes in relation to guardianship. His social worker, Daniel Anderson, notes that J has cooperated with the care provision to date and on the whole seems content and settled. As well as taking into account the present and past wishes and feelings of the adult, so far as they can be ascertained, I must also take account of the views of the nearest relative. That is of course J's father, who has presented this application to be appointed financial and welfare guardian. The other person who provides significant levels of care for J is his paternal grandmother who is in favour of the guardianship order being made. J's mother has indicated to the mental health officer that she is opposed to the order being pronounced. As explained in Mr Wilkinson's report, this appears to be because she is concerned about being excluded from the decision making process. She is not opposed to the applicant and herself being appointed as joint guardians or to the local authority being appointed guardian. Accordingly she is not opposed to guardianship per se for J. The application has been served upon her, and she has not taken steps to oppose it formally. Having regard to the impossibility of ascertaining J's views, and having regard to the views which have been expressed by the relatives, it is my view that intervention in the form of the appointment of a welfare and financial guardian would be of substantial benefit to J.

[17] Apart from the views expressed to the mental health officer by J's mother, there is no dispute that the applicant is a suitable person to act as J's guardian. I was satisfied from CR's evidence that he would only exercise his powers when that is necessary in J's interests. Mr Anderson, the social worker, is of the view that CR has cooperated fully with joint planning and decision making for J, and he feels that there is no evidence to support the view of his estranged wife that he would seek to exclude her. Mr Anderson is of the view that CR will continue to involve the care team and is confident that this will continue. Ian Wilkinson as mental health officer is satisfied that the applicant would be a suitable person to be guardian. I conclude that the applicant is a suitable guardian.

 

Conclusion

 

[18] Having considered the evidence and the authorities in this case, I am satisfied that the intervention will benefit J and that that benefit cannot reasonably be achieved without the intervention. I am also satisfied that any intervention which is being made is the least restrictive option in relation to the adult's freedom, consistent with the purpose of the intervention. Further, in determining whether that intervention is to be made, I have taken account of the impossibility of ascertaining J's views, and have taken account of the views of the nearest relatives and J's primary carers. I have considered all the powers that are sought by the applicant and am satisfied that these should be granted. In relation to the welfare power 1.13, I consider that any medical intervention should not be dealt with in terms of section 47 of the 2000 Act, since this would be on an ad hoc basis and subject to challenge. Furthermore the cost and inconvenience of returning the matter to court and the potential for issues to be disputed would not be of benefit to J. The applicant is a suitable person to be appointed as guardian, and I am satisfied that no other means provided by or under the 2000 Act, or in terms of section 13ZA of the 1968 Act would be sufficient to enable the adult's welfare to be safeguarded and promoted.

[19] I shall therefore grant the guardianship order sought. J has no capital and his only income is derived from state benefits. In such circumstances I am satisfied that there is no need for the court to order that caution be found. I am also satisfied that in J's case there is no need for a management plan to be prepared for the management, investment and realisation of the adult's estate, because he has no estate as such, his only resources taking the form of state benefits. The applicant is in receipt of legal aid and there is no crave for expenses, so none shall be awarded.

[20] J's incapacity will be lifelong. There is no prospect of any improvement. In trying to strike an appropriate balance between (a) ensuring that all measures that relate to the exercise of legal capacity are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review, and (b) the desirability of not requiring frequent applications to the court for renewal of guardianship (which would themselves be intrusions into J's life), I consider that an appropriate duration for the guardianship order in this case would be 10 years.