Scottish Sheriff Court Decisions

AW148/09

Introduction

1. This is an application brought by the Consultant Geriatrician in charge of the care of an adult with incapacity who is a long stay patient in an acute NHS hospital, asking for directions in terms of section 3(3) of the Adults with Incapacity (Scotland) Act 2000. That provision states that "On an application by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult, the sheriff may give such directions to any person exercising - (a) functions conferred by this Act; or (b) functions of a like nature conferred by the law of any country, as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him to be appropriate."
2. That subsection appears as part of a section (section 3 aforesaid) whose heading is "Powers of sheriff" but my reading of the section is that subsection 3 is a "stand alone" provision which is not dependent on any of the other subsections in the section for proper understanding of its meaning or scope.
3. Accordingly, and ignoring consideration of any foreign elements for present purposes, it is a provision which requires firstly that there is to be in existence a person who is already exercising functions conferred by the Act. Again for present purposes, that includes a person appointed by an adult to act in terms of a power of attorney granted in accordance with the provisions of Part 2 of the Act (principally sections 15 and 16), and a person authorised by the court to act in terms of an intervention order or a guardianship order in accordance with the provisions of Part 6 of the Act (principally sections 53 and 57).
4. Next, the application can be brought by "any person...claiming an interest in the property, financial affairs or personal welfare of an adult", by which is meant an adult with incapacity as defined in the Act.
5. Finally, assuming the applicant is such a person, and assuming there is already a person exercising functions conferred by the Act, the court is empowered to give directions to the person who is already exercising such functions and if it decides to do so, the court is given wide general discretion in the matter, constrained only by the general principles which govern any decision to intervene and which are set out in section 1 of the Act. Again for present purposes, the guiding principle can be summarised by stating that the court should not intervene unless satisfied that the intervention will benefit the adult and that such benefit cannot be reasonably achieved without the intervention (section 1(2)).

The Circumstances of this Case

The Existing Guardian

6. On 16 September 2009 an application was processed at this court involving an adult, then aged 77, and who was then designed as living at her own home in Glasgow. The applicant was her daughter and on that date, I granted the application for guardianship in her favour, granting her powers relating to the welfare and to the property and financial affairs of her mother. The supporting medical information was to the effect that the adult was then an adult with incapacity as defined. In December 2012, the guardian presented a Minute seeking extension of the powers previously granted and on 30 January 2013, I again granted that application. The adult remained then, and still is, an adult with incapacity as defined in the Act.
7. The additional welfare powers granted in January 2013 were; "8. To consent or withhold consent to medical and dental treatment or procedure or therapy of whatever nature; 9. To enter into a contract with a care provider to be decided by the Guardian for the long term care of the Adult at a location to be decided by the Guardian should the need arise; 10. To sign any ancillary deed or other document necessary to promote the personal welfare of the Adult and ensure that the same is suitably safeguarded." It is also important to note that in this Minute, the adult was now designed as "formerly residing" at [her 2009 address] "and currently c/o [an acute NHS hospital in the area of Greater Glasgow and Clyde Health Board]".
8. There is therefore, plainly, a person, the appointed guardian, who is exercising functions conferred by the Act of 2000. Further, it seems equally plain that the purpose of the additional powers sought and granted was to enable the guardian to make arrangements for the long term care of her mother, away from her own home, and for her to be accommodated in suitable nursing or residential accommodation. In fact, the minute lodged by the guardian which formed the basis of her application for the additional powers, and which I granted on 30 January 2013, states in terms that the guardian was advised on 29 November 2012 that her mother could not return home and that it was (in January 2013) proposed to move the adult to the very Care Home now mentioned in the present minute, but that the terms of the previous powers of guardianship did not permit the guardian to enter into a contract with a care provider. Accordingly, the guardian sought those specific additional powers herself in order to effect the transfer which she has since not done and which the present minute seeks to have her directed to do.

The Applicant in the Present Minute

9. As already indicated, the qualification for bringing an application for directions is simply that the applicant must claim an interest in, inter alia, the....personal welfare of an adult (with incapacity). When the minute was presented, on 13 August 2013, the adult was a patient in the medical wards of an acute NHS hospital. The minuter (the applicant for directions) was a Consultant Geriatrician at that hospital and the consultant in charge of the medical care of the adult. On that basis, the minuter averred that he had an interest in the personal welfare of the adult.
10. I agree with that assertion. The category of persons who may have an interest as defined is deliberately left very wide, and it seems to me to be unarguable that the consultant in charge of the care of a patient is not someone with an interest in that person's personal welfare, particularly in a situation where the person is unable, as here, to take relevant decisions herself as to her personal welfare.

The Directions Sought

11. The minuter asked the court to answer a question; "In order to secure the Adult's welfare and best interests is it necessary for her to reside in a facility which provides NHS continuing care?", and if the answer to that was in the affirmative, the minuter asked the court to make an order directing the guardian to exercise her existing powers by directing the guardian to consent to the Adult residing at [a specified Care Home], and to direct her to convey or make arrangements for the conveyance of the Adult to that Care Home, and, since the nominated place was operated as a continuing NHS facility by Greater Glasgow Health Board (GGHB), to direct the guardian to enter into such a contract with GGHB as may be necessary to secure the adult's residence there, and to direct that the guardian consent to the adult receiving nursing and other medical care there, and to direct the guardian to sign any papers which may be necessary to secure the adult's residence there.
12. Pausing there, it may be thought that it is not generally appropriate to ask the court to answer a specific question, but in the circumstances here, if the court were to give any such directions, it implies that the court was satisfied that the question posed (at least in so far as it refers to "benefit", since that, and not "best interests" is the statutory test) was answered in the affirmative. Further, there is a real question as to whether, in giving directions of the kind which the court is empowered to do by section 3(3), a court can direct a person to consent to something. A court can clearly direct a person to do something or refrain from doing something.

The Reason for Asking for Directions

13. The circumstances disclose an unhappy state of affairs in which the adult has now spent prolonged periods of time in the same acute NHS hospital. Her last admission there had been on 19 August 2012 and she had remained there ever since. Indeed, on the date of the hearing of this minute, 19 September 2013, she was still a patient there.
14. In addition to her mental health difficulties, the minute narrated that the adult unfortunately suffers from a wide range of serious medical conditions which affect her physical health. These include cerebrovascular disease with right sided hemiparesis and dysphasia, ischaemic heart disease, recurrent urinary tract infections, type 2 diabetes on insulin, previous colonic cancer with colostomy, and epilepsy. She is completely dependent for all tasks of adult daily living and requires a hoist to be moved from bed to chair. She is now aged 81. She requires assistance with all personal hygiene and help and encouragement with all meals. She is prone to dehydration and frequently requires subcutaneous fluids to be administered.
15. In the period from January 2009 until her last admission in August 2012, she had been admitted to the same acute hospital on 26 occasions. In the year 2009 she spent a total of 114 days there, in 2010, 234 days, in 2011, 146 days and in 2012, 276 days. She has of course spent the whole of 2013 to date there. That means that she has spent almost exactly 60% of the last 5 calendar years to date as a patient in an acute NHS hospital. A significant number of the admissions were required on account of poor diabetic control, dehydration and urinary tract infections. For a short period (23 August to 17 September 2010) she was in the Care Home which is now suggested as appropriate for her. It is a continuing NHS care facility but not of course an acute hospital. All of her admissions to hospital required processing through Accident and Emergency and then ward admissions.
16. The minute goes on to record, frankly, that since 2009, the adult has acquired hospital acquired infections as a result of her frequent and prolonged stays. The point of having her moved to a continuing NHS facility in the designated Care Home is that such infections will hopefully be avoided, but she will still receive the same level of nursing and medical care as in hospital. It is also suggested as being appropriate because she cannot any longer be safely cared for in her own home. The proposed course of action would avoid the constant disruption to her life which has been a feature of it since 2009, and ensure proper and continuous treatment in an appropriate environment.
17. The minuter avers that the responsible consultants at the hospital have been attempting for some time to persuade the guardian to exercise the powers she has to move the adult to the proposed Care Home, but she refuses to do so. The adult was certified fit for discharge as long ago as 13 September 2012, but the guardian refused to allow that, citing concerns about ongoing infection, despite being assured that there was no such problem at that time. On 26 September 2012, the guardian did agree to allow the adult to be discharged home but then changed her mind and refused to allow it, despite having obtained a second opinion from another consultant who confirmed that the adult was medically fit for discharge and recommended transfer to a continuing NHS facility, such as the one now proposed. For some time after that, it is said that the guardian was not contactable. In November 2012, a case conference was convened by the local authority at which the guardian attended. The recommendation was for transfer of the adult to the Care Home now proposed for assessment prior to a move home. She thereafter acquired other infections and in December 2012 was transferred to the care of the minuter as the guardian wanted a change of consultant. Since then she has had other illnesses, including another hospital acquired infection, but these have been treated and the minuter has recommended that she be discharged to the present proposed continuing care facility or another equivalent one, but the guardian refuses to consent to such.
18. The position adopted by the minuter and his medical colleagues is that the adult requires continuing medical care , but that that can be provided most suitably in a continuing care facility such as the one proposed, and most certainly not in her own home. She does not require to remain a patient in an acute NHS hospital. Other advantages of the proposed facility are that residents there have their own rooms which can be furnished with their own personal possessions, and there are no restrictions on visiting times.

The Appointment of a Safeguarder

19. This was obviously a case which required input from a safeguarder and in terms of section 3(4) of the Act I appointed at the same time as warranting the minute Mr Mark Ralston, solicitor, whom I know to be an extremely experienced practitioner in this area of law. He duly investigated and reported and his views as expressed in his report were of very considerable assistance. In addition to forming his own views, he arranged for the adult to be examined by an independent Consultant Geriatrician, and submitted a report by that consultant, who operates in a different Health Board area, and who had examined all of the relevant records and examined the adult on 10 September 2013.
20. The minuter had also submitted a medical report on the adult which was before the court at the date of the hearing. In that report the minuter recorded that it is his opinion and that of four other colleagues that the adult should not be discharged from hospital care. Further, he states that the guardian has been repeatedly advised of this and that she has been advised that the most appropriate level of care should be in a continuing care NHS ward. There are only two of those available in the Glasgow area and one is the one which is proposed in the minute for directions.
21. The independent consultant accepts that some of the medical problems suffered by the adult are potentially attributable to being in an acute (hospital) environment. It was his opinion that it would not be in the best interests of the adult to be discharged home which he considered would be harmful to her ongoing health and psychological state, that she met the criteria for NHS long term care, that having worked himself at the very Care Home which was recommended for her, he could confirm that that environment was perfectly suited to the ongoing provision of care for the adult, and that it would be adverse to her best interests for her to be detained any longer in an acute care environment where she may be at risk of further hospital acquired infections or complications.
22. The safeguarder quite properly considered whether it was appropriate for the court to answer a question in the form posed by the minute but also, and again quite properly, considered whether the court had jurisdiction to entertain the minute. He came to the view, and I agree with him, that the terms of section 3(3) do allow the court to entertain the minute and give directions to the guardian here if thought appropriate. He had commissioned the report from the independent consultant and founded on the conclusions thereof and the opinion expressed there that it would be harmful to the adult for her to be discharged home, and also that she needed long term NHS care but that it would be adverse to her interests for her to be detained for that purpose in an acute hospital environment. The safeguarder discharged his duty to attempt to discover the views of the adult on the proposal, but found her to be unable properly to comprehend and assess choices. She appeared generally confused. She did ask when she was going home and said she wanted to go home but appears confused as to where her home was or what the concept meant to her, other than it meant living with her daughter, the guardian.
23. He also spoke to the guardian. He recorded that having given the matter considerable thought, the guardian had expressed the view that she now accepted that the point had come for her mother to be admitted to care and that it was not now realistic for her to return to live at home. She expressed discontent with the level of care being administered at the hospital where her mother was, and did not accept that it would benefit the adult to move to the actual proposed Care Home. She believes that the doctors in charge of her care wish to place her mother on the "end of life" pathway, whereas she believes that all of her mother's medical difficulties can continue to be treated. The proposition that the adult was being or would be placed on an end of life pathway was not accepted by the minuter. She did say she would agree to her mother being placed in a suitable care environment with which she (the guardian) was in agreement, and was making enquiries to identify one. She seemed to agree that her mother should no longer require to remain in hospital. Other family members seemed to share the guardian's views, albeit that seemed to be coupled with the desire for the adult to return home, something which the guardian herself now thought unrealistic. It does however seem to be the view of the family that the adult should no longer require to remain in an acute hospital.
24. The safeguarder concluded that there was no medical need for the adult to remain in an acute environment. In the circumstances, he identified, correctly in my view, that the question now posed was where the adult should be discharged to, since she was fit to be discharged and cannot now be adequately cared for at home. The Care Home identified and proposed is one which is still under the overall medical responsibility of consultant geriatricians at the present hospital. The safeguarder concluded that if at the date of the hearing no alternative suitable establishment had been identified by the guardian, the interests of the adult would be best served by a transfer to the proposed Care Home, at least in the interim.

The Hearing

25. At the hearing on 19 September 2013, the guardian explained that she had contacted a different Care Home from the one proposed and which she seemed to favour. However, that one was still under the overall supervision of the medical staff at the present hospital, so there was no difference there. She accepted that her mother needed to be in a Care Home environment which was able to cope with her ongoing physical health difficulties. The alternative one she mentioned had not assessed the adult and would need social work intervention, which had not yet happened. Further, the issue of funding for that place had not even been explored. It should be emphasised that the issue of funding is not a live one with regard to the proposed Care Home as that has already been approved, with there being no cost to the adult or the guardian involved, as I understand it. The safeguarder had spoken to the minuter on 18 September and the minuter had confirmed that in his professional view there were only two suitable and appropriate placements. The one proposed was by far the most suitable (including its location) and the other one was not the one just mentioned by the guardian.

Resolution and Directions

26. This was a novel, but principled, attempt to seek to have the court give directions in accordance with the provisions of section 3(3) of the Act. For the reasons already set out, I am satisfied that it is competent for the minuter to attempt to invoke the powers given to the court by that provision. There is an adult with incapacity as defined, there is in place a guardian exercising functions conferred by the Act, and the minuter is a person with an interest in the personal welfare of the adult. The unhappy history from 2009 of repeated admissions from home to an acute hospital has meant that the adult is at constant risk of re-admission to an acute hospital if she was to go back to her own home. That means that it really has to be accepted that she can no longer safely be maintained in her own home. Even the guardian has, albeit reluctantly, accepted that fact. I am in no doubt that it would not be to the benefit of the adult if she was to return to her own home.
27. On the other hand I also accept that it is not to her benefit for her to remain as a long stay patient in an acute NHS hospital. She had been continuously a patient in such an establishment for a period of 13 months by the date of the hearing, despite having been medically fit for discharge for some considerable time. The reason she has not been discharged is that the guardian has refused to allow her to be transferred to a continuing NHS facility, and to the proposed one in particular.
28. All of the information before the court is to the effect that the adult needs continuing medical care. All of the information before the court, including that stated by the guardian, is that it is not appropriate for the adult to be discharged home as the appropriate level of care cannot be provided there, and a discharge home will inevitably result in further and repeated admissions to an acute hospital. All of the information before the court is that not only will the adult benefit from transfer to a continuing NHS facility ("benefit" being the statutory test) but also being in, or remaining in, an acute environment is adverse to her interests on account of the risk to her of hospital acquired infections.
29. The only remaining issue then is whether what is actually proposed in the minute would be to the benefit of the adult. What is actually proposed is that the adult be transferred to a named Care Home which is said by the medical professionals to be suitable and appropriate for her continuing care. The only person who does not accept that is the guardian. (I am not ignoring the stated views of the adult herself, and have taken those into account, as I am obliged to do, but I have recorded that she has very limited understanding of what is actually involved and has a stated preference to go home, which is no longer a practical reality.)
30. As at the date of the Hearing, there was not available for consideration any alternative proposal. No other facility was then actually available for consideration. It is not to the benefit of the adult to prolong her stay in an acute hospital environment any further, it being frankly recognised that she had, while in extended stays there, suffered from hospital acquired infections and was at continuing risk of doing so again in the future. In the circumstances, I was satisfied that it would be to the benefit of the adult were she to be transferred to a continuing NHS facility. I was satisfied on the information before the court that the facility actually proposed was suitable and appropriate and that the adult would benefit from being resident there.
31. The guardian was unwilling to accept that that would benefit her mother and unwilling to arrange such a transfer. In that situation, I had to consider whether it was appropriate for the court to exercise its powers under section 3(3) of the Act and give her directions which would have the effect, if implemented, of securing the transfer of her mother to the named facility.
32. I do not consider that it is strictly necessary, even it was appropriate to do so, to give a formal answer, by way of pronouncing an interlocutor, to the question posed in the minute. I have accepted, as has the guardian now, that the adult needs ongoing medical care, that it is appropriate that that should be provided, not in her own home and not in an acute hospital, but in a continuing NHS facility, and that the adult would benefit from a transfer to, and admission to, such a facility for her long term needs.
33. I have already commented on whether I can direct someone to consent to such a proposal, but since the guardian already has the power to decide where the adult should reside, and the power to convey her there, and the power to enter into such contractual or other arrangements as may be necessary to secure the continued residence by her mother at an appropriate facility, I consider that I do have the statutory power to direct a guardian who is unwilling to take such steps that she should do so.
34. Accordingly, at the conclusion of the hearing, I did direct the guardian to make arrangements forthwith for the conveyance of the adult from the present hospital where she is a patient to the proposed Care Home named in the minute, and to co-operate with both of the said institutions in effecting that transfer, and to secure the necessary care and treatment for the adult at the said Care Home, and to enter into such contractual or other arrangements with GGHB as may be necessary to secure the adult's residence there. I was satisfied that the proposed intervention would benefit the adult and that that benefit could not reasonably be achieved without the proposed intervention, as the guardian refuses to take the proposed step herself.
35. I have not revoked any of the guardian's powers, so it must be that in the future, if she identifies some alternative facility which is assessed as suitable for the continuing care of the adult, and if the received wisdom was to the effect that it would be to the benefit of the adult to be resident in such an alternative place, then it would remain open to the guardian to effect such a move. All that this minute seeks to do is to direct the guardian, who was unwilling to act in the manner proposed, to do so, for the immediate benefit of the adult, and to secure the removal of the adult from a place where continuing residence could be adverse to her health to a place where continuing residence would be to her benefit.
36. I have also not lost sight of the fact that the giving of directions to the guardian in this case constitutes the making of an order of court, and that a person who fails to comply with an order of court may be held to be in breach of it and subject to potential sanctions. I recognise that the court must therefore have that consideration in mind before taking the step asked of it here. I did advise the guardian that the order I pronounced at the conclusion of the hearing on 19 September was an order of the court and that she was obliged to comply with it, there being consequences if she did not.
37. But lest it be thought that the ordinary consequences for failing to comply with a court order may seem severe in the case of a person who had been for years acting, as here, as the carer for her mother and with her mother's interests at heart, but who was simply reluctant to recognise the inevitable, it should be emphasised that the Act itself does provide a mechanism for dealing with any such refusal to comply, and which may recognise the sensitivities involved.
38. Section 71(1)(a) provides that 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 [my emphasis] may replace a guardian by an individual or office holder nominated in the application. The court would have to be satisfied that a nominated replacement individual is suitable, but can appoint, if the guardianship order is to relate only to the personal welfare of the adult, the chief social worker of the local authority (S59(1)(b)). As in the present case, it is open to a wide range of persons to contemplate the bringing of such an application, which would then have to be determined on its merits and in accordance with the general principles of the Act.
39. Once again, the foresight of the drafters of this piece legislation has proved to be perspicacious and the Act, in its ability to provide solutions even for difficult problems, and by giving the court the discretion to achieve such solutions, has proved to be, and continues to prove to be, a model of clarity and usefulness.