Scottish Sheriff Court Decisions

Act:  Party, appellant

Alt: McEachran, for applicant and respondents

Alt: Conway, solicitor for safeguarder

EDINBURGH, 26 August 2014

The Sheriff Principal, having resumed consideration of the cause refuses the appeal;  recalls the appointment of the Chief Social Work Officer as interim guardian to the adult J.G. in terms of the sheriff's interlocutor of 16 May 2014 and of new, ad interim, appoints the Chief Social Work Officer of West Lothian Council, Civic Centre, Howden South Road, Livingston, West Lothian to be guardian to the adult, J.G., for a period of six months from the date hereof in terms of Part 6 of the Adults with Incapacity (Scotland) Act 2000 with the following powers relating to the personal welfare of the adult:-

1. to decide where the adult should reside, to require her to reside in that location, to convey her there and to return her to that location in the event of her absenting herself therefrom;
2. to consent to, or withhold consent for, medical or dental treatment for the adult as appropriate;
3. to decide the appropriate level of care, including nursing and additional care, for the adult in respect of health, welfare and social issues;
4. to require the adult to give access, at any place where she is residing, to any medical practitioner, dentist, mental health officer, nutritionist, nurse or any other person specified by the guardian to assist with her health, personal care, welfare and safety;
5. to have the same access that the adult would be legally entitled to, to confidential documents, medical and dental records and personal information held by her general practitioner, dentist or any hospital where she has received, is receiving or will receive care, or by any other body or organisation, relating to her health, treatment and personal welfare;
6. to make decisions regarding the adult's dress, diet and personal appearance;
7. To make decisions regarding the adult's social activities;

authorises the public guardian to issue a certificate of appointment; thereafter remits the cause to the sheriff to fix a procedural hearing and proof (over a minimum of five consecutive days) and makes no order in respect of the expenses of the appeal.

(signed) Mhairi M Stephen

NOTE:

1. This is an appeal in an application by West Lothian Council for the appointment of the Chief Social Work Officer as guardian and interim guardian to an adult J.G. in terms of the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act").The appellant B.G., who is the son of the adult, appeals the sheriff's interlocutor of 16 May 2014 appointing the Chief Social Work Officer as interim guardian to the adult for a period of six months.The sheriff's interlocutor followed hearings on 9 and 16 May.The sheriff appointed a hearing on the application as the appellant's interim guardianship was due to come to the end of its six month period in May 2014.Separately the local authority as applicants had lodged a motion seeking a hearing to determine whether orders or directions were necessary in terms of the 2000 Act.

    

2. The adult is J.G. who is currently subject to a compulsory treatment order in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") and is being cared for in hospital.The adult has severe debilitating dementia and osteoporosis.She has very significant mobility difficulties which have been exacerbated following fractures sustained at the end of last year.It is not in dispute that she fulfils the incapacity criteria set out in s.1 and s.57(1)(a) of the 2000 Act.Due to her mental disorder the adult is unable to make decisions about her welfare and medical treatment.The medical treatment which she currently receives is round the clock specialised in-patient nursing care.There is no real dispute that guardianship is the only means of safeguarding and promoting the adult's personal welfare.

    

3. The appellant B.G. was appointed interim guardian to the adult J.G. following an appeal in this process on 21 November 2013.At that stage the adult lived at home with the appellant. There was considerable conflict between the applicants and the appellant in respect of the adult's care.A particularly difficult matter was the appellant's unwillingness to accept that physical chastisement of an adult with severe debilitating dementia was not conducive to the adult's welfare.

    

4. When an interim order was made in November 2013 it followed a successful appeal which was, in essence, an "interests of justice" appeal whereby I was not satisfied that the procedure adopted in respect of the appointment of a guardian had been procedurally fair.At the appeal hearing I did not require to determine the merits of the appeal in the interim guardianship application as the appeal was conceded.There was, in my view, a compelling need for the appellant and the local authority to co-operate and reduce the conflict which had developed with regard to the adult's care and welfare.Both parties require to act in a manner which is conducive to the adult's welfare.The object of the intervention by way of guardianship is to benefit the adult and I was satisfied then that there was no dispute that the test for incapacity was met.It was necessary that someone be appointed as interim guardian pending resolution of the areas of dispute or at least attempts should be made to resolve these matters for the benefit of the adult.

    

5. In these circumstances the order which I made on 21 November 2013 was in the following terms

"The Sheriff Principal, having heard the agent for the applicants and respondents and the appellant and safeguarder personally, in respect the appeal is conceded, grants same; recalls the sheriff’s interlocutor dated 28 August 2013; finds the applicants and respondents liable to the appellant in the expenses of the appeal procedure being the sum of £115.50; ex proprio motu calls for a supplementary report relating to the Adult and the interim guardian from Dr Karen Bett; said report to be instructed by the safeguarder, Roy Lumsden; thereafter ad interim, appoints the appellant,

................................................................................................................

……… to be guardian to the Adult, …......................, also residing at .. ………………………………………………………………… for a period of 6 months from the date hereof in terms of part 6 of the Adults with Incapacity (Scotland) Act 2000 with the following powers relating to the personal welfare of the Adult:

1. to decide where the Adult should reside, to require her to reside in that location, to convey her there and to return her to that location in the event of her absenting herself therefrom;

    

2. to consent to, or withhold consent for, medical or dental treatment for the Adult as appropriate;

    

3. to decide the appropriate level of care, including nursing and additional care, for the Adult in respect of health, welfare and social issues;

    

4. to require the Adult to give access, at any place where she is residing, to any medical practitioner, dentist, mental health officer, nutritionist, nurse or any other person specified by the guardian to assist with her health, personal care, welfare and safety;

    

5. to have the same access that the Adult would be legally entitled to, to confidential documents, medical and dental records and personal information held by her general practitioner, dentist or any hospital where she has received, is receiving or will receive care, or by any other body or organisation, relating to her health, treatment and personal welfare;

    

6. to make decisions regarding the Adult's dress, diet and personal appearance;

    

7. to make decisions regarding the Adult's social activities;

    

8. to regulate the amount of time visitors spend with the Adult in any care home she may be ultimately placed in;

said interim guardianship subject to the following conditions:

1. that the appellant permits medical professionals access to the Adult for the purpose of medical examination, check-ups and monitoring of her dementia;

    

2. that the appellant permits social work officers access to the Adult for the purpose of discharging the duties of the Chief Social Work Officer in terms of the Adults With Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007;

    

3. that the appellant consents to further engagement, interview and examination by Dr Karen Bett for the purpose of the report required by the court and for the purpose of any investigation required by her regarding the effect of physical chastisement on the Adult; and to allow Dr Karen Bett to examine/interview the Adult for the purpose of the court report if considered necessary by Dr Karen Bett who shall be the sole judge of that requirement;

    

4. that the appellant refrains from physical chastisement of the Adult during the period of interim guardianship order unless no other method of restraint or control would prevent danger to her life or other serious injury;

Authorises the public guardian to issue a certificate of appointment; and Decerns;  thereafter, remits to the sheriff at Livingston to proceed as accords.

6.         The local authority has a duty to supervise all guardians with welfare powers in the exercise of their functions relating to the adult's personal welfare (s.10 of the 2000 Act together with The Adults with Incapacity (Supervision of Welfare Guardians etc by local authorities) (Scotland) Regulations 2002).

7.         There have been significant developments however since my interlocutor of 21 November 2013.  In particular the adult suffered falls whilst being cared for at home at the end of 2013.  These led to serious fractures and lengthy in-patient hospital treatment.  There is fundamental disagreement between the appellant and the applicants, West Lothian Council, and the Mental Health Professionals and others caring for the adult as to her treatment and care.  In the past this has led the appellant to take his mother home from hospital and a nursing home contrary to medical advice.  The most recent occasion was April 2014.  When the local authority care team visited the adult at home soon after she had again fallen and this appears to have triggered sufficient concern to lead the medical professionals to certify on 10 April 2014 that the adult was in need of short-term detention under the 2003 Act.  The short-term detention certificate expired after 28 days and an interim compulsory treatment order (CTO) was put in place on 14 May 2014.  A CTO was made on 4 June 2014 after a hearing attended by the Responsible Medical Officer (RMO), Mental Health Officer (MHO), curator and the appellant.  The only medical evidence came from the RMO, the general practitioner and a psychiatric report by Dr Bhatti obtained by the curator ad litem who supported the making of a CTO.  The Tribunal's decision to make a CTO was appealed to me.  I heard the appeal in July and issued a judgment on 1 August 2014 refusing the appeal.

1. Against that background I turn to consider the grounds of appeal.The principal ground of appeal is to the effect that the sheriff erred in law by failing to apply or take sufficient account of the principles set out in section 1 of the 2000 Act.

    

   Appellant's Submissions

2. At the appeal hearing on 21 August the appellant tendered amended grounds of appeal and a further crave that I hear his evidence to the effect that the respondents had improperly interfered with the lawful exercise of his guardianship powers when it issued a short term detention certificate to remove the adult from her home on 10 April.A number of issues arose from that.Firstly, it is not the function of the appeal court to hear evidence and certainly not about a matter which is not the subject of the appeal.Secondly, the short term detention certificate was not issued by the respondents West Lothian Council but is a certificate issued by a consultant psychiatrist.After discussion the appellant withdrew this request.

    

3. Although the solicitor acting for the respondents and the solicitor acting for the safeguarder did not oppose the further amendments the unfortunate consequence is that the sheriff has not had the opportunity of preparing a note on the further grounds of appeal.However, in the circumstances of this case, where, in my view, there is a need to minimise further delay I decided to proceed and allowed the appellant to argue the additional grounds of appeal.

    

4. Firstly, the appellant argued that the sheriff made an unnecessary decision to appoint the Chief Social Work Officer as interim guardian.It was not necessary to make an order in respect of medical interventions.The sheriff perpetrated an injustice by altering the status quo ante.The purpose of interim protective orders and therefore interim guardianship is to preserve the status quo ante.That had been preserved in November when his mother was living at home.The appellant surmised that the purpose of the interim appointment on 21 November was to preserve the status quo ante and to encourage a working relationship between the appellant and the respondents.It was not necessary to make another appointment just because the interim appointment was coming to an end.

    

5. Secondly, the sheriff made an error in deciding that there was a degree of urgency when she made the appointment of an interim welfare guardian.There was no urgent need for intervention given that the adult was receiving medical treatment in terms of the CTO.The adult was receiving medical treatment in the form of some medication, examinations, x-rays.If the purpose of the interim guardianship order was to prevent the appellant from removing his mother from hospital as and when the CTO might be revoked or come to an end this was an illegitimate consideration given that the appellant had offered an undertaking that he would not remove the adult from hospital until the sheriff heard evidence or there was medical advice in support of the return.The sheriff therefore had no reason to believe that the interim appointment was either urgent or necessary.

    

6. The third ground of appeal was not argued.The appellant considered that the sheriff erred by declining his recommendation that the sheriff seek clarification from me regarding the conditions imposed on 21 November 2013.After discussion this ground of appeal was not insisted upon.

    

7. Fourthly, the sheriff erred in assuming that there was any legal imperative for a welfare guardian to require to follow medical advice which he may disagree with or may have been in breach of.The sheriff also erred in interfering with the appellant's discretionary power as welfare guardian to decide whether any medical advice was beneficial to the adult or not without hearing evidence.With reference to the Code of Practice for Private Guardians the appellant argued that there was no legal imperative for him to follow medical advice or advice from the local authority.It is, indeed, part of the guardian's function to challenge and reject medical evidence or local authority advice if the guardian believes that it is not in the adult's best interests.Guardianship being a statutory appointment confers a discretionary power to make whatever decisions he considers appropriate in accordance with the principle of good faith.The appellant referred to G v G (Minor's Custody Appeal) [1985] 1WLR 647 which deals with appeals against the exercise of judicial discretion.He argued with reference to G v G and administrative law that the basis upon which his discretion in terms of his guardianship powers can be challenged were very restricted and the sheriff was wrong to interfere with his legitimate exercise of guardianship powers. The sheriff could not use his exercise of these powers as a reason for not continuing the appointment.

    

8. Fifthly, the sheriff erred by failing to make use of the best evidence or to hold an evidential hearing on the contentious issues before making any decision on interim guardianship.

    

9. Sixthly, the sheriff erred in the procedures she adopted in determining who should be appointed as interim welfare guardian.She was wrong in law to decide that the appellant was not suitable and then simply appoint the Chief Social Work Officer by default without hearing his objections as to the CSWO's suitability.I was referred to Ward on Adult Incapacity Chapter 11 (paragraphs 11.03 and 11.20).

    

10. Finally, the appellant addressed me on his original ground of appeal namely that the sheriff erred by failing to apply or to take sufficient account of the principles set out in section 1 of the 2000 Act.The sheriff has merely alluded to the principles but has failed to apply them in any meaningful sense in her balancing exercise.The sheriff gave insufficient weight to the views of the appellant and in particular to the views of his mother who has consistently expressed a wish to live at home and be cared for by the appellant and that the Council should not interfere in her life.The principal of autonomy had not been adhered to.

     

    Respondents' Submissions

11. Mr McEachran addressed me on his own submissions which he had lodged in writing.He did not rehearse these submissions but referred to certain important issues which had arisen since the appellant was appointed as interim guardian in November 2013.He referred to the rather tense and tragic circumstances which have developed in this case.He considered that the focus was moving away from the adult who had been most affected and was becoming concentrated on the apparent battle between the appellant and the local authority and other medical professionals.Mr McEachran referred to the statutory duties placed on the Chief Social Work Officer who required to keep under review the actings of the welfare guardian.At each review which was conducted by the MHO the appellant had refused to answer questions as to whether he was adhering to the condition (iv) attached to the November order relating to him refraining from physically chastising his mother.He had, however, admitted that he had not obtempered that condition during the hearings before the sheriff on 9 May and 16 May.He had indicated that he had no intention of adhering to condition (iv) but had gone along with it as he knew otherwise he would not be appointed.This undermined his suitability as an interim guardian.There was a clear and compelling question as to whether the appellant could properly fulfil his responsibilities as an interim guardian.I was referred to the sheriff's report particularly paragraphs [18] and [19].

     

12. There was an imperative for guardianship.The adult was subject now to a CTO.At the time of the sheriff's decision she was subject to an interim CTO only.There was, therefore, uncertainty as to what the Mental Health Tribunal would do and, in any event, the CTO can be reviewed or recalled at any time.This appeal had effectively stymied the operation by the CSWO of his duties under the guardianship order.There was a concern with regard to who may authorise routine medical and dental treatment.Such routine treatment is not permitted whilst a guardianship application is being determined.Section 49 of the 2000 Act only deals with interventions for the preservation of the life of the adult or the prevention of serious deterioration in her medical condition.There was, therefore, a compelling need for guardianship powers.

     

13. Accordingly, I was urged to refuse the appeal, recall the appointment in May and of new appoint the CSWO as interim guardian for a period of six months to allow for proof to be fixed and heard.It was estimated that a proof of one or two weeks would be required.The respondents did not seek any award of expenses.

     

    Submissions by the Safeguarder

14. Miss Conway on behalf of the safeguarder who is Mr Roy Lumsden associated herself with the submissions lodged and made orally on behalf of the respondents.The safeguarder supported the appointment of the Chief Social Work Officer as interim guardian.

     

15. The safeguarder was concerned about the delay and she associated herself with the remarks about a speedy proof.I was asked to refuse the appeal and remit the matter back to the sheriff for proof.Miss Conway agreed that the most effective outcome was to recall the appointment of the interim guardian in May and reappoint the CSWO for a period of six months which should be ample time to conclude the proof.

     

    Appellant's Reply

16. The appellant agreed that if there was to be an interim appointment that the interim appointment should run from the date of my decision.The appellant wished to explain that he had not intended to cause delay in these proceedings and was as keen as any other party to get to a proof on evidence.He refuted that he never intended to obtemper condition (iv) of the interim appointment in November 2013 despite what the sheriff records.He denied a lack of objectivity and transparency. He pointed out that he had always been entirely candid with the court.He disputed that the need for ongoing medical treatment was anything other than academic and was not a practical imperative which would justify the making of an order.

     

    DECISION

17. The role of the appellate court in appeals against discretionary decision is well settled.I would refer to Macphail Sheriff Court Practice Chapter 18 paragraph 110 onwards.At paragraph 111:-

    "The underlying rationale of the appellate court's restrictive approach to the review of discretionary decisions is that it is of the essence of judicial discretion that on the same material different minds may reach widely different decisions any one of which may reasonably be thought to be the best, and any one of which, therefore, a judge may make without being held to be wrong."

     

                The authority on which this passage is based is a decision of the House of Lords in G v G [1985] UKHL 13 which deals with appeals against discretionary decisions.  In dealing with this issue Lord Fraser of Tullybelton approved the observations of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 AllER 343 who had this to say:-

    "We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."

     

                G v G authoritatively states the principles on which the appellate court operates in appeals against discretionary decisions.  This is an appeal against the exercise by the sheriff of her discretion.

     

18. In deciding whether or not to make a guardianship or interim guardianship order the sheriff exercises powers under the Adults with Incapacity (Scotland) Act 2000 (the 2000 Act).In disposing of an application for a guardianship order the sheriff requires to apply section 57 of the Act and the principles set out in section 1 of the 2000 Act.The sheriff may make an order appointing an interim guardian in terms of section 57(5).Section 59 deals with who the sheriff may appoint as guardian.The CSWO is, in effect, the default guardian in welfare guardianship and is not subject to the "suitability" test and section 59(4) which applies to other individuals such as the appellant.

     

19. The powers of the sheriff under the 2000 Act are wide.Accordingly, the sheriff's decision is without question a discretionary decision for the sheriff to make subject to the statutory framework.The principles set out in section 1 of the 2000 Act are referred to by the sheriff in her note.She had regard to the statutory provisions. Section 1(2) is the essential principle and is stated in the following terms:

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

     

     

20. This is indeed the core principle namely that it is the welfare of the adult and the benefit to the adult which is the overarching principle.The court then has to consider the least restrictive option and take into account the present and past wishes and feelings of the adult and 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.The sheriff also requires to take into account the views of any other person who appears to the sheriff to have an interest in the welfare of the adult.Now that may well include representatives of the applicants or medical professionals in view of the adult's current status as being subject to a CTO.

     

21. The requirement in section 1 is that "account shall be taken of" the present and past wishes of the adult;the views of the nearest relative and any other person whom the sheriff has directed to be consulted.This is a requirement in determining if intervention is to be made and if so what intervention is to be made.It is clear that the adult's state of health requires intervention at the stage the sheriff was considering this issue on 16 May 2014.The adult was subject to an interim CTO which may or may not have resulted in a full CTO.The sheriff records this at para [34].The important requirement is for the decision maker to take account of these views.The views do not have overriding effect and depend upon the facts and circumstances and in particular the medical condition of the adult.

     

22. These AWI proceedings are highly contentious.The characteristics have been high conflict and the appellant's distrust of the council.The appellant is absolutely convinced that he and only he knows what his mother requires and only he can provide care for his mother.No doubt this is a genuinely held belief.There is no co-operation between the appellant and the council due to tension, conflict and mistrust.There appears to be little or no room for accommodation or agreement or co-operation.

     

23. It is well known that when able to articulate a view the adult would express a wish to be at home and looked after there by her son.Nevertheless, the adult's view standing her disability is not in any way determinative of these proceedings.The sheriff took account of all relevant views.See paras [42] – [46].

     

24. In the past it has been a matter of concern that the appellant has acted in a manner not conducive to the patient's benefit and welfare.This is a matter that the sheriff refers to.There is an ongoing and serious issue with regard to physical chastisement which is likely to be tested at proof. However, in the recent past the appellant has removed his mother from hospital or nursing care contrary to medical advice.The appellant does not accept that medical staff and nursing staff can act in his mother's interests.The medical treatment which the adult currently receives under the CTO relates to skilled and intensive nursing care.The appellant does not accept that medical and nursing professionals accord his mother's interests priority as he does.He is unwilling to accept advice from social workers and health professionals.Due to her severe dementia and frailty the adult has sustained a number of falls whilst being looked after at home.

     

25. The first argument deployed by the appellant suggested that there was no immediate need, urgency or necessity to make an interim order at all.This is a difficult argument for the appellant to advance as he advocated to the sheriff that the conditions for guardian were met and that he should be appointed as interim guardian or have his interim guardianship order renewed.The appellant's position is, therefore, inconsistent.He now argues that there was no necessity or urgency to make any order at all.The sheriff considers this at paragraphs [34] to [37].She rejects the argument that the adult's care and medical requirements could be addressed by ad hoc intervention orders or directions requiring those treating the adult to make application to the court for directions or approval.The sheriff quite properly rejects that as being unworkable and disproportionate.I agree that it is difficult to see how that would confer benefit on the adult.In the absence of an order section 49 of the 2000 Act applies together with the legal principle of necessity which authorises emergency treatment.The effect of that is that only emergency and life threatening treatment could be authorised.Whereas the adult may be receiving treatment under the CTO that does not cover non-urgent medical and dental treatment which may be of considerable importance to the adult to alleviate pain and discomfort and for her general well being.Other ordinary requirements such as chiropody and suchlike could not be authorised.In any event, the CTO could, on review, be recalled or could be revoked on application by interested parties including the appellant.However, the real issue is that the requirements of sections 1 and 57 are met beyond question.The sheriff's decision making has to be judged on the information available to the sheriff and the status of the adult in May 2014.At the stage when the sheriff makes her decision the adult's status is as an in-patient subject to an interim CTO only.There is no certainty as to the outcome as the sheriff observes in paragraph [34].

     

26. It is clear from the sheriff's note that the appellant has been unable to accept the conditions imposed when I allowed the appeal and made an interim guardianship order subject to these conditions.He is unwilling to obtemper that part of the interlocutor with which he does not agree and does not accept.The sheriff records the appellant's attitude to complying with the requirement not to physically chastise his mother in paragraphs [38] and [39] of her report.Although the appellant distances himself somewhat from that stance on appeal he maintained that he had a right to use physical chastisement where appropriate.Clearly, the sheriff considered that this was an important factor in exercising her judgment on the question of the appointment of a guardian or interim guardian.

     

27. The sheriff also records at paragraphs [40] and [41] the appellant's position that he would exercise his right to remove his mother from hospital as soon as he considered it appropriate even if that was contrary to medical advice.He did not consider that the guardian in the discharge of his duties was required to follow medical advice if he disagreed with it.The appellant's willingness to act contrary to medical opinion and his position with regard to physical chastisement led the sheriff, properly, to the view that the appellant could not be considered suitable for appointment as a guardian or interim guardian in terms of section 59(1).In this regard the sheriff required to have regard to the factors in section 59(4).In that regard the sheriff did not require to consider competing interests for appointment as guardian as the appellant's lack of suitability ruled him out leaving the applicant's CSWO as the person available to the sheriff to fulfil the duties of guardian or interim guardian.The appellant argued the sheriff was entitled in the event that the appellant was considered suitable for appointment to conduct an assessment of the merits of the individual compared with the CSWO.This may properly occur following proof in due course.However, for the purpose of the interim guardianship the sheriff did not consider that the appellant was suitable for appointment for the reasons stated and in these circumstances, having regard to the interim nature of the appointment, the sheriff was entitled to appoint the CSWO without conducting any comparative assessment.Accordingly, the appellant's argument with regard to the fairness of the sheriff's approach to her decision as to who should be appointed falls to be refused.

     

28. The fourth ground of appeal suggested that the sheriff erred in taking the view that a welfare guardian required to follow medical advice and that was a requirement which the appellant breached.In my opinion the sheriff was entitled in terms of section 59(4) to have regard to the adverse effects that the appointment of an individual would have on the adult and, of course, any likely conflict of interest.The appellant's unwillingness to follow the body of medical advice and opinion requires to be treated as an important factor given that the appellant has no medical opinion of his own which either supports his position or contradicts the advice of the medical practitioners who are treating the adult.The appellant's opposition to medical advice leads him to act against that medical advice.He has removed the adult from hospital against the clear advice of medical professionals.This places the adult at risk.In the past the adult has been placed at risk due to the injuries sustained due to falling.Also, further attempts to improve her mobility without specialised nursing assistance would place her at further substantial risk.The sheriff required to have regard to these matters in determining who should be appointed.There is, therefore, no error on the part of the sheriff in placing emphasis on the appellant's attitude to medical advice.

     

29. The second leg of the same ground of appeal is, in my view, misguided.It is perhaps understandable that the appellant who does not have the benefit of legal advice and representation has misconstrued the principles set down in G v G.In G v G the House of Lords is dealing with an appeal against the exercise of judicial discretion.That is not to say that the exercise of powers under guardianship does not involve the exercise of a discretionary power.However, the exercise of powers conferred by an interim guardianship order are not unfettered;require to be exercised for the benefit of the adult and any conditions attached to the guardianship require to be fulfilled.In this case the appellant accepts that he has not fulfilled condition (iv) of the interlocutor of 21 November 2013.As the sheriff records he had no intention of so doing.A deliberate failure to obtemper an order is a factor and is an important factor for the court in determining whether an interim order should be renewed and whether the appellant is a suitable person to be appointed.

     

30. The fifth ground of appeal criticises the sheriff for failing to make use of the best evidence or to adduce evidence at a hearing before making her decision.In determining whether to make interim orders the sheriff did not require to hear evidence. The sheriff had access to a significant amount of material.The appellant, the applicants and the safeguarder had the opportunity to make submissions to the sheriff at a hearing which lasted all day on 16 May.The order is an interim order designed to regulate guardianship powers pending a hearing of evidence or proof.This ground of appeal falls to be rejected.

     

31. It is settled law that an appellate court can intervene but only if the sheriff misdirected herself in law, misused the evidence or material facts before her or took into account irrelevant considerations or failed to take into account relevant and material considerations.In other words only if the sheriff got it plainly wrong I can intervene.If she did not then the matter is not open for review on appeal.I am not satisfied that the sheriff misdirected herself in law or failed to apply the statutory provisions.For the reasons I have given, it cannot be suggested that she was plainly wrong.

     

32. In my opinion the appeal is without merit and the arguments put forward by the appellant are misconceived.The sheriff has wide powers under the 2000 Act to make orders if necessary for the benefit of the adult.The interim period of guardianship which I granted in November 2013 came to an end in May 2014.The purpose of interim guardianship orders is not to maintain or protect the status quo ante as suggested by the appellant.In making any orders under the 2000 Act the court require to exercise their powers in terms of the overarching principle that the court must be satisfied that the intervention will benefit the adult and that such benefit cannot be reasonably achieved without the intervention.The adult is unable to make decisions in respect of her own health and welfare.She is frail with severe debilitating dementia.The CTO was made following consideration of medical evidence which clearly confirmed the adult's severe mental (and physical) disorder;the need for medical treatment and the risk to the health and safety and welfare of the patient if she is not given skilled nursing care 24 hours a day.No contradicting medical evidence was before the mental Health Tribunal.It is necessary that the adult's welfare is protected overall and that she is not placed at risk of falling and suffering further physical detriment.The purpose of interim guardianship orders is to fulfil the purpose of the 2000 Act for the benefit of the adult pending final resolution of this application.It is incorrect to equate interim guardianship with an interim protective order designed to maintain the status quo pending court proceedings.The interim guardianship order should regulate matters positively relating to the adult's welfare pending proof on the competing guardianship applications.I will refuse the appeal and remit the cause to the sheriff in Livingston to assign a proof – a minimum of five consecutive days will be required.A procedural hearing should be fixed to allow the sheriff to determine how the proof should proceed and to narrow the issues for proof.A wide ranging proof which strays into the difficult background to these proceedings would not be conducive to addressing the statutory provisions on guardianship nor would it benefit the adult who ought to remain the focus of these proceedings.

     

33. Parties agreed that if an interim guardianship order is to be made or the existing order confirmed it should be effective from the date of my decision for a period of six months which should be a sufficient period to conclude the proof.The appellate procedure has stymied the operation of the interim guardian's powers for more than two months and it would be prejudicial to progress if a further contentious hearing was required on interim orders before this application can proceed to proof and conclude.I do not propose to make any order in respect of the expenses of the appeal procedure.

(signed) Mhairi M Stephen