Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT FALKIRK

Act: Rodger

Alt: Gillan

Falkirk, 17 December 2013

Introduction

[1]        On 14 November 2013, I granted a guardianship order in respect of the Adult (“S”) appointing the Chief Social Worker of the Applicant to be guardian for a period of three years with powers in relation to S’s personal welfare.  At that time, I briefly outlined the reasons for my decision and indicated that I would issue a written Note.

[2]        The decision was issued following the hearing of evidence over two days, on 7 and 8 November 2013 and submissions on a subsequent day, 12 November 2013, at which time the parties’ solicitors lodged written submissions.  The parties indicated that, in the interests of all concerned, particularly S, an early decision would be welcomed.  In order to give proper consideration to the matter including the written submissions which were lodged at the bar on that day, I decided not to make a decision there and then but that an early decision would be desirable.  I indicated that I would announce my decision on 14 November.  This I duly did and issued an interlocutor of that date. Given the limited scope of the dispute and the desirability for an early decision, I decided not to proceed by way of a formal judgment containing formal findings of fact in law and that it would be sufficient and appropriate to simply announce my decision and produce written reasons later.

[3]        The parties to the application are the applicant, Falkirk Council, represented at the hearing by Mr Rodger, and the Adult, S, represented by Miss Gillan.  The issue between the parties was a narrow one as is evident from the joint minute lodged on 3 September 2013, in terms of which it was agreed that a guardianship order should be made with specified powers relating to S’s personal welfare, the sole issue being the length of the order.  The applicant contended for a period of 3 years.  On behalf of S it was contended that a one year order would be sufficient.

Background  

[4]        Before dealing with the legal framework and the evidence, I wish to say a little about the background to this application based on what I understand to be agreed facts, including those facts agreed on averment.  S is 34 years old and has a learning disability.  The condition is life-long.  She has been known to social work services for some years, principally due to concerns surrounding the welfare of her daughter G who is now accommodated.  She was first referred to social work services by her adoptive parents when she fell pregnant with G.  She was given parenting support.  She was the subject of physical and verbal abuse at the instance of her then partner who she married in 2002.  He died in a road traffic accident in 2004.  S’s mother died in 2006 and that had a destabilising effect on her family, home and environment.  S moved into temporary accommodation in about September 2009 due to a deterioration in relations with her father.  Various concerns arose in 2012.  I need not rehearse the details for the purposes of this Note. As a result of a children’s panel decision on 30 August 2012, G was removed from S’s care.  In late 2012 S formed a relationship with a PS, who also has learning difficulties.  In February 2013 it emerged that S was pregnant.  There were certain difficulties between S and PS.  On 14 June 2013 the sheriff granted a Removal Order under section 293 of the Mental Health (Care and Treatment) (Scotland) Act 2003 in respect of S as a result of which she was removed to M Care Centre.  On 19 June 2013 the present application for a guardianship order was lodged in court.  On 20 June 2013, prior to the expiry of the Removal Order, an order was granted appointing the applicant as interim guardian with functions and duties in relation to S’s personal welfare and on that day arrangements were made for S to be transferred to HC Care Home.  This is a care home with nursing provision catering for specific categories of residents including adults and young people with mental health issues.  S arrived at the facility on 2 July 2013.  On 10 September 2013 S gave birth to her child A.  A has been accommodated and is the subject of proceedings in the children’s Hearing.  S has contact regular contact with A.

Legal Framework

[5] Prior to dealing with the evidence, it would be useful at this juncture to note the relevant statutory provisions of the Adults with Incapacity (Scotland) Act 2000. 

1 General principles and fundamental definitionsS

This sectionnoteType=Explanatory Notes has no associated

(1)The principles set out in subsections (2) to (4) shall be given effect to in relation to any intervention in the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any proceedings under this Act for or in connection with an adult.

(2)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.

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

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

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

(b)the views of the nearest relative, named person and the primary carer of the adult, in so far as it is reasonable and practicable to do so;

(c)the views of—

(i)any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention; and

(ii)any person whom the sheriff has directed to be consulted,

in so far as it is reasonable and practicable to do so; and

(d)the views of any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible, in so far as it is reasonable and practicable to do so.

58 Disposal of applicationS

This sectionnoteType=Explanatory Notes has no associated

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

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

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

he may grant the application.

(4)Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as a “guardianship order”) appointing the individual or office holder nominated in the application to be the guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown, he may determine.

60 Renewal of guardianship order by sheriffS

This sectionnoteType=Explanatory Notes has no associated

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

71 Replacement or removal of guardian or recall of guardianship by sheriffS

This sectionnoteType=Explanatory Notes has no associated

(1)The sheriff, on an application made to him by an adult subject to guardianship or by any other person claiming an interest in the adult’s property, financial affairs or personal welfare, may—

(c)recall a guardianship order or otherwise terminate a guardianship if he is satisfied—

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

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

[6] There was some discussion as to the interpretation of section 58(4) and in particular whether or not there was an onus upon the Adult in this case, as the party contending for an order less than 3 years, to show why this should be so.  Certainly, the expectation of the statute appears to be that an order will run for 3 years “or such other period (including an indefinite period) as, on cause shown, he (the sheriff) may determine”.  It is generally assumed that this provision was intended to limit the duration of guardianship orders (see for example annotation to section 58(4) in Ward, Adults with Incapacity Legislation (2008) at page 110).  It is not so clear that the intention was to limit the availability of orders for less than 3 years.  However, on a literal construction of the provision, cause requires to be shown if the period is not 3 years, whether it be a greater or lesser period.  It seems to me, bearing in mind the principle of “the least restrictive option” (on the hypothesis that intervention is justified), that it would be difficult to argue and that there was a legal burden on a party who submitted for a lesser period of intervention.  In any event, even if, strictly, the question of onus arises on the basis that it is incumbent upon a party seeking an alternative period to show cause; where evidence has been led and issue joined on the question of the duration of an order, it seems to me to be unhelpful to think in terms of onus.  The question for the court must ultimately be to consider what the appropriate period is having regard to the principles contained in the Act.  Where intervention is justified, such intervention shall be the least restrictive option in relation to the freedom of the Adult, consistent with the purpose of the intervention.  In determining what intervention is to be made account is to be taken of the present and past wishes and feelings of the Adult and others concerned with her care.  Whatever the interpretation of the provision, if the evidence discloses that there are reasons why an order for a shorter (or indeed longer) period is appropriate having regard to those principles, then necessarily there is “cause shown” in terms of the provision.

[7]        The provisions of section 60 of the 2000 Act relating to renewal of guardianship orders have also been noted above.  It seems to me that the issue of potential renewal of an order is relevant to the consideration of how long an order should be in the first place.  As noted by Ward (sup cit) in his annotation to section 58(4):

“In applying this Act’s principles to this issue, as one must, the relevant question may be:  is there likely to be benefit to the Adult in requiring everyone to go through the renewal procedure?  In some cases the considerable trouble and cost of renewal procedure has been a consideration in granting orders for longer than might otherwise have been the case.  That concern is reduced, though not eliminated, by the simplified renewal procedure introduced by the 2007 Act”.

That simplified procedure is now contained in the amended section 60.  Quite apart from the question of trouble and cost, it seems to me that the impact on the Adult of a renewal application is relevant.  In this respect there is clearly a balance to be struck between the adoption of the least restrictive option having regard to the Adult’s circumstances on the one hand, and the general desirability of not having frequent applications to the court for renewal which in themselves could be disruptive to the Adult, on the other (see the observations of Sheriff Thornton in CJR in respect of the Adult JMR, Kirkcaldy Sheriff Court, 27 February 2013 at paragraph 20).

[8]        The provisions of section 71 of the Act have also been noted above and those provisions relate inter alia to the recall of guardianship by the sheriff.  An order can be recalled if the sheriff is satisfied that the grounds for appointment are no longer fulfilled or that the interests of the Adult inter alia in relation to her personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.  This clearly provides a mechanism to recall the order if it is no longer necessary.

Evidence

[9] By agreement between the parties the evidence of Mike Martin, an independent social worker on behalf of the Adult, was led prior to the evidence for the applicant.  Thereafter evidence was led in support of the application from (1) Ian McIndoe, social worker, Falkirk Council, (2) Susan Allen, senior social worker, Falkirk Council, (3) Pamela McFarlane, staff nurse at HC Care Home (4) Dr Chandima Perera, consultant psychiatrist, NHS Forth Valley and (5) Fiona Cantley, mental health officer, Falkirk Council.  In relation to all the applicant’ witnesses, save Pamela McFarlane, there were affidavits lodged which by virtue of the court’s interlocutor of 10 September 2013 stood as their “main evidence in chief”.  In addition, by joint minute, the evidence of Sheana McKerracher, manager of HC Care Home, as contained in her affidavit, was agreed.

[10] Mr Martin on behalf of the Adult supported a shorter one year order.  His reasoning is essentially summarised in the conclusion to his report dated 30 August 2013.  He states:

“I would suggest that whilst an Order for a period of 3 years has been proposed, there are reasons for thinking that an Order for a period of 1 year could reasonably be considered at this point.  I believe this would provide [S] with the motivation to seek to make progress during the year towards the time when an order may not be required, and allow for consideration of the impact and implications of the anticipated CPO on her unborn child in relation to her opportunity to play a significant part in the child’s upbringing”.

As indicated earlier, subsequent to Mr Martin’s report, S gave birth to A on 10 September 2013.  As also indicated A has been taken into care (Child Protection Order).  S has weekly contact.  Mr Martin argued that a one year order would represent the least restrictive option in this case.  For the purposes of his report Mr Martin met S in the company of her advocacy worker on one occasion for a period of around 2 to 2½ hours.  He also reviewed the social work documentation and met with others involved with S. 

[11]      The first witness for the applicant was Ian McIndoe.  He has been the allocated social worker for S since 2009.  He explained his involvement with S over that time, which has been extensive.  He described her problems and her need for support.  He regularly visits her in her current placement at HC Care Home.  He has been carrying out the duties of interim guardian on behalf of the applicant since that appointment was made.  I do not intend to rehearse the details of his evidence.  His evidence in chief is principally that contained in his affidavit which he adopted.  He spoke of S’s difficulties including her challenging behaviour.  He proffered the opinion that S had no insight into relations with others or the effect of her behaviour on others.  It was he who involved Dr Perera in 2012, who in turn referred S to Dr Edith Matheson, chartered clinical psychologist, NHS Forth Valley for a capacity assessment.  That assessment is the subject of a report by Dr Matheson which was attached to her letter of 7 November 2012.  The conclusion there was that while S demonstrated a reasonable ability to understand and make decisions with regard to with whom she should consort, the evidence suggested that she has been unable to act upon these decisions.  From his perspective as a social worker with experience of S, Mr McIndoe agreed with that conclusion.  He indicated that on a superficial level, S could present well.  She could “talk the talk” but she could not “walk the walk”.  He stressed however that he was concerned with other issues regarding her whole lifestyle.  Challenging S was very difficult to do.  She could be aggressive and volatile.  She was also vulnerable and at risk of being taken advantage of.  There was a potential for change.  That was his hope.  There were many issues which required to be addressed including personal hygiene and domestic skills.  He regarded the potential rehabilitation of S into the community as very much a process which would not be served by a one year guardianship order.  His evidence was that a 3 year order would be necessary at the end of which it was hoped that S could be living independently in supported accommodation or nearing that goal.  His evidence was that if the order was for one year S would mark time, no matter how much she was told that the order could be renewed, and that would affect her engagement in the process of developing the appropriate skills to live independently.

[12]      Susan Allen was the senior social worker involved with S.  She has known S since 2006.  She too adopted her affidavit.  She too has had a good deal of involvement with S.  In her view a one year order would not be long enough to give S a chance to deal with the issues she faces including child care issues and anger management.  Ms Allen indicated that S would see a one year order as an end goal.  S had indicated to her that she would “keep the head down” and after the order had run its course would have nothing to do with social workers or HC Care Home.  There was a risk that S would then fall in with old associations.  She needed time to sort things out, address her issues and to progress to the supported accommodation that she needs.  She did not agree with the proposition of Mr Martin that S would be motivated by a shorter order.  Her view was that S would treat a one year order as an end point for any input from others.  Ms Allen’s evidence was that S required a high level of support in her own right, quite apart from any childcare issues, in order to get her back into the community.  In her view a 3 year period would be appropriate for a guardianship order.  In cross examination, Ms Allen indicated, reflecting the evidence of Mr McIndoe, that S is able to give the appropriate assurances but then does something different.  The difficulty was in following through decisions that had been made.  In relation to A, Ms Allen confirmed that there was contact between parent and child which was managed by social work services.  There was the potential for further distress in this process and in her view needed to be supported. 

[13]      Pamela McFarlane spoke to the position at HC Care Home and in particular S’s residence there.  She spoke to the care plan for S which was designed to meet her various needs in relation to communication, personal hygiene, personal relationships, every day activities – independence, managing finance, physical and mental health, medication, maintaining a safe environment and general rehabilitation.  Interestingly Ms McFarlane’s evidence was that S enjoyed many aspects of HC Care Home but claims when asked that she does not really want to be there.  This witness would not be drawn on the length of the guardianship order but did say that the care plan would be a lengthy process. 

[14]      Dr Perera was one of the medical practitioners who provided a report of incapacity for the purposes of the guardianship application.  He became involved in around March 2012 and assessed S on three separate occasions – in March 2012, March 2013 and May 2013.  He also attended various meetings in relation to care issues.  In March 2012 he was not clear that S lacked capacity and he referred her at that point to Dr Matheson as previously indicated.  He referred to Dr Matheson’s opinion that S was impaired in her ability to carry through decisions as evidenced by her actions over the previous 2 to 3 years.  Following an assessment in March 2013 due to further concerns, Dr Perera counselled a period of “watchful waiting” to monitor S’s capacity to act on her decisions, and in particular to see whether there was an improvement.  There was a further assessment in May 2013 following an allegation of physical abuse by S’s partner.  It was at this point that Dr Perera decided that S lacked the ability to make informed decisions as a result of her learning disability.  His evidence was that the condition was lifelong.  The principal concern was S’s decision-making, particularly acting on decisions.  He indicated that S’s skills in this respect could be improved but there would need to be an assessment of this following a lengthy period of stability and support.  His view was that S needed appropriate guidance and assistance to make complex life choices in relation to her own welfare and safety.  Given his knowledge of S, Dr Perera’s opinion was that a one year order would not be sufficient for her to develop the stability in her current placement.  A one year order would represent a distraction in her rehabilitation with a view to a less supportive setting.  The care plan had to have time to develop and to be tested.  It would be a slow process in order to ensure her safety in the community without support.  In his experience working with people with learning disability and with similar needs as S, one year would not be sufficient.  Dr Perera favoured a 3 year period for the guardianship order.  In his clinical opinion one year would not be sufficient given S’s history.  In view of S’s difficulty in not implementing decisions, Dr Perera did not think she would work with a one year order even if she agreed with that.  Dr Perera emphasised his concern was S’s welfare and safety rather than any issues relating to her child.  He was of the view that there may well be a time when S was able to live safely in supported accommodation such that her mental and physical wellbeing would be safeguarded.  She may very well in time be able to look after her child but it would have to be in circumstances where her life would not be as chaotic and where appropriate accommodation and support would be in place and engaged with.  In other words her ability to care for her child could be assessed once she had achieved stability in the future and one year was not sufficient for that purpose in this case. 

[15]      Fiona Cantley was the author of the mental health officer’s report accompanying the application for guardianship.  She adopted her affidavit.  In her view S may have fluctuating capacity and some of her incapable behaviour may be temporary and some permanent.  What was clear however was that the escalating risks that she was exposing herself to when she was living independently in the community were of sufficient concern for intervention.  She spoke of S’s impulsive behaviour, plans that lack feasibility, her difficulty in accepting advice from social work services, decisions made in the past against advice, placing herself and her daughter G in vulnerable situations and the potentially abusive relationship with PS.  S’s father eventually found the role of supporting S difficult due to her impulsive and chaotic lifestyle.  He was supportive of the application although he wished to continue to support and seek to influence her in a positive way. It was Ms Cantley who prepared and presented the application for the Removal Order due to escalating concerns for S’s safety and welfare in the community. As regards guardianship orders in general, Ms Cantley’s evidence was that they were always open to review.  There were robust internal reviews as to the terms of such an order and the care plan to be adopted.  It was her evidence that a one year order would not be sufficient for the rehabilitation of S.  She was of the view that S would not commit to a short order.  She did not agree with the proposition that S might simply give up if the order were a longer one.  She emphasised the need to get this right.  As to the consideration of S being a new mother Ms Cantley’s view was that this application was about S, not her child.  Looking at the matter holistically, if she could be stabilised, it may be that the child issues could be dealt with more effectively.  As to the nature of the incapacity it was her evidence that S was not always able to process information or to act appropriately. 

Conclusions

[16]      From the foregoing outline of the evidence, it will be apparent that the overwhelming weight of evidence was in favour of a 3 year order.  I found the witnesses who gave evidence on behalf of the applicant to be both credible and reliable.  They have all had experience of dealing with S one way or another, some over a number of years, particularly the social workers Mr McIndoe and Susan Allen.  Mr McIndoe has had extensive involvement with S since 2009.  I found his evidence to be compelling.  He gave his evidence in a fair and balanced way.  I had the clear impression that in supporting a 3 year order he had in mind what in his view was the best for S.  Of considerable importance was the evidence of Dr Perera, which I accepted, and in particular his clinical opinion as to the necessity for a three year order.  I had no reason to doubt the experience and expertise of Mr Martin.  However, his opinion in support of a one year order was given after one meeting with S, albeit he had access to the social work documentation and information from others.  I was not persuaded, for the reasons put forward by the witnesses on behalf of the applicant, that S would be more motivated to make progress in her rehabilitation if the order ran for one year rather than three.  Also, for the reasons put forward by those witnesses, I did not feel that I could attach a great deal of weight to the proposition that a shorter order would allow S a greater opportunity to play a significant part in A’s upbringing.  Clearly, the fact of a guardianship order has the potential to impact on S’s capacity to be involved in parenting A.  She wishes to be involved and I am conscious that I require to take her views into account.  However, that issue requires to be seen in its proper context.  This application is concerned with S and what is best for her in accordance with the principles of the Act.  S’s aspirations in relation to parenting A are governed by different considerations, the paramount one being the welfare of A.  In any event, I accept the evidence adduced on behalf of the applicant that the first concern was to achieve stability for S.  It may be that when a certain degree of stability was achieved then S’s parenting ability in relation to A could be re-assessed.  That is however for another process.  At present, the matter is in the children’s hearing system.  I also accept the evidence that there would be regular and robust reviews of the care package with a view to determining the appropriate level of intervention as the order proceeded.  I was not persuaded that a one year order could be made with the prospect of considering a renewal of the order at the end of that time.  In the first place, to make a one year order would be at variance with the weight of evidence.  In the second place, the process of renewal, quite apart from the trouble and expense that that would involve, would, more importantly in my view, cause disruption to the rehabilitation process involving S. That would cause uncertainty, possibly lead to unrealistic expectations on the part of S and thereafter potential disappointment if the order were to be renewed.  Given the witness evidence for the Applicant, and the nature of S’s impairment, I am not convinced that she would fully appreciate the potential of the order being renewed. In any event, there is the safety mechanism of the potential for an application to recall the order should the criteria for the existence of the order cease to be met.  From the point of view of the applicant, this could potentially come to light in the course of the internal review process. 

[17]      I have come to the conclusion in all the circumstances that an order running for 3 years would be the least restrictive option in relation to the freedom of S and consistent with the purpose of the intervention.  In coming to this conclusion I have had regard to S’s wishes and feelings and also the views of her father and those primarily responsible for her care.

[18]      S was present throughout the hearing.  She therefore heard all of the evidence that was led. Given the nature of the evidence, this must have been difficult for her.  However, she bore it with great fortitude. She was calm and dignified throughout and for that she deserves enormous credit.  I realise that she will be disappointed by this decision.  In making it I have tried to do what is best for S in accordance with the principles of the legislation.