Scottish Sheriff Court Decisions

AW5/13

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON

2015SCLIVI26

 

JUDGMENT

(anonymised)

 

by

 

SHERIFF SUSAN A CRAIG,

SOLICITOR ADVOCATE

 

in the summary application by

 

West Lothian Council

Applicant

 

for appointment of Guardian to

 

JG

 

the Adult

__________________

 

 

 

Appearances:  For the applicant: MacEchern, Solicitor; For the safeguarder: Lumsden, Solicitor; For the Party Minuter: BG, in person

 

LIVINGSTON, 13 March 2015

 

The sheriff, having resumed consideration of the cause:-

Finds the following facts admitted or proved -

• [1]JG, whose date of birth is 17 March 1933, has severe Alzheimer’s dementia, and is not orientated in relation to time, place and person. She lacks the capacity to make decisions regarding her welfare. JG’s condition is deteriorating and is expected to deteriorate further. There is no prospect of any improvement. She is unable to communicate coherently and is unable to form or express any considered views or opinions.

   

• [2]JG also has osteoporosis and has suffered multiple fractures.

   

• [3]JG’s dementia is advanced and since June 2014 she has been the subject of a Compulsory Treatment Order and has been detained within the Rosebery Wing at Tippethill Hospital, Livingston.

   

• [4]The Rosebery Wing is the only specialized longer-term female dementia unit in West Lothian. It provides the high level of staffing with the appropriate experience necessary to care for JG properly, adequately and safely. There are no nursing home facilities within West Lothian that could provide adequate care nor could such care be provided within JG’s home.

   

• [5]JG requires the full time, 24 hours per day, specialist psychiatric nursing care provided within the Rosebery Wing in order for her care needs to be met. One of the characteristics of JG’s condition is that she can become very agitated and that presents specific challenges in providing that care. She requires the full time assistance of staff in order to minimise that agitation.
• [6]As agitation increases the risk of falls increases, should the agitation not be properly managed. Without the care she is currently receiving JG is at greater risk of becoming agitated and distressed leading to an increased risk of falls and serious injury.

   

• [7]The principal cause of the agitation is not that the nursing and other staff are unable to communicate with JG; it is instead a symptom of her dementia. The staff are able to communicate with JG insofar as her dementia permits but such communication is extremely limited and she is no longer able to follow instructions.

   

• [8]JG’s mobility is significantly impaired. Although from time to time she appears to make attempts to stand she cannot mobilise safely on her own. Her gait and posture are significantly compromised by the effects of her dementia and osteoporosis. She leans backwards and is at significant risk of falls if and when she attempts to get to her feet.

   

• [9]In order to minimise the risk of falls and injury it is necessary for two members of staff properly trained in the manual handing of elderly patients with advanced dementia to mobilise her safely, and then only to transfer her from bed to chair to commode or vice versa. Occasionally, and when her agitation is reduced, she can be mobilised such that she can be moved over very short distances but only with the support of such trained staff. JG is not walking when so mobilised but is being moved supported by the trained members of staff.

   

• [10]JG will never be able to regain the ability to walk unaided. To seek to mobilise her with a view to attempting to regain such ability places her at very high risk of injury, including fracture. In a patient of her age and with her conditions, fractures can be life threatening.

   

• [11]While there may still be some risk of falls and injury if mobilised by trained staff that risk is significantly less than if one person attempted to mobilise JG. Should one person attempt to mobilise her there is a significantly increased risk of falls and injury to JG as well as a risk of injury to that person.

   

• [12]JG’s severe dementia prevents her from being able to benefit from any form of physiotherapy designed to improve her mobility.

   

• [13]JG is a widow and has three children. For a number of years prior to the onset of her dementia she lived with her oldest child, BG, in a home owned by him. BG’s home is arranged over three floors, with stairs between each floor, a bathroom on the top floor, JG’s bedroom on the middle floor and a kitchen on the ground floor. There are no adaptions to the property. It is not a safe or suitable place for JG to live.

   

• [14]BG is a bachelor. He was JG’s main carer before her admission, in February 2012, to a care home. In around October 2012 BG removed JG from that care home - notwithstanding that that was contrary to the advice of the Applicant’s social work department - and JG returned to live in BG’s home. Thereafter attempts by the social work department to work collaboratively with BG were largely unsuccessful.

   

   

• [15]Towards the end of 2012 the Applicant’s social work department received an anonymous call complaining that BG was physically abusing JG. Adult Protection measures were put in place.

   

• [16]BG hits JG. He describes that as physical chastisement designed to control JG’s behaviour, divert her attention and, he says, only hits her where no other options are open to him. BG considers that he is entitled to act in the way he does, that it is necessary to remind JG “who is in control” and that it is inappropriate for anyone to seek to moderate or restrain him from so acting. In particular BG is not prepared to give any undertaking that he will refrain from hitting his mother at any point in the future should he, in his discretion, consider that it is appropriate for him to do so.

   

• [17]In November 2013 BG was appointed as interim Welfare Guardian to JG by an interlocutor issued by the Sheriff Principal of Lothian and Borders. That appointment was subject to a condition that he refrain from physical chastisement of JG except in certain defined circumstances. Notwithstanding, BG did not intend to comply with that condition nor did he so comply and did hit his mother thereafter.

   

• [18]It was also a condition of that appointment that BG cooperate with enquires designed to ensure compliance with the condition that he refrain from physical chastisement. BG did not cooperate and acted in breach of that condition as well.

   

• [19]In December 2013, while in BG’s care, JG suffered fractures that required her to be admitted to hospital. She remained in hospital, receiving appropriate care, until April 2014. A multi-disciplinary team had assessed her as unfit to be discharged home. Notwithstanding, and aware of the views of that team, BG removed JG from hospital. He did so in circumstances that involved his lying to the nursing staff, taking JG out of hospital in a wheelchair, telling nursing staff that he would bring her back but in knowledge that that was not his true intention. BG believed that it was highly likely that the police would be called and he deliberately deceived the hospital staff.

   

• [20]Despite spending a number of days developing the plan to remove his mother from the hospital and in knowledge of JG’s medical and other needs, BG took no steps to ensure that there was any form of care package in place to care for JG at his home. He did not take her medication with him.

   

• [21]When BG refused to return JG to hospital the Applicant was left with no option but to put in place an emergency package of care to meet JG’s short term needs while she was in the care of BG and while he refused to agree to allow her to return to hospital.

   

• [22]While in the care of BG, JG suffered a fall when she fell off a commode on which she was sitting, unsupervised, when BG left her to answer the door.

   

• [23]Despite having no medical, social work, carer or physiotherapy training or qualifications BG, in large part, considers that he knows what is best for JG’s care even where, as it frequently was, that opinion was contrary to that of professionals involved in JG’s care. He rejects the professional opinions of the physiotherapists involved with her, asserting that she would benefit from physiotherapy sufficiently to be able to walk, unaided, in the future.
• [24]BG rejects the advice of the professionals that it is not appropriate for him to hit JG, believing that advice to be a form of “political correctness”. Where the views of the professionals do not agree with his own he rejects that advice and acts on his own.

   

• [25]It is BG’s view that there is a bond between him and JG that would enable him to communicate with her beyond that that is and can be achieved by the trained professionals.

   

• [26]When she was still able to express views it was JG’s view that she should be cared for at home by BG.

   

• [27]It is BG’s view that she should be cared for at home by him.

   

• [28]The view of JG’s daughter, JW, is that BG’s home is not suitable for JG.

   

• [29]BG and his brother, JG’s other son, have not spoken in years.

 

Finds in fact and in law that -

1. JG is incapable of making decisions about her personal welfare, or of acting to safeguard or promote her interests, and is likely to continue to be so incapable;

    

2. There are no means sufficient to enable her personal welfare to be promoted other than the appointment of a Welfare Guardian;

    

3. Such an intervention would benefit JG and cannot reasonably be achieved without that intervention;

    

4. Such an intervention would be the least restrictive option in relation to the freedom of JG and would be consistent with the purpose of the intervention;

    

5. JG’s past views and the views of BG are that JG should live at his home;

    

6. BG is aware of JG’s circumstances and condition and of the needs arising from such circumstances and condition;

    

7. BG is aware of the functions of a Guardian;

    

8. BG does not have the ability to carry out the functions of Guardian;

    

9. There is likely to be a conflict of interest between JG and BG if he was appointed Guardian;

    

10. If BG was appointed Guardian there is likely to arise an undue concentration of power by BG over JG;

     

11. If BG was appointed there is likely to be an adverse effect on the interests of JG;

     

12. If BG was appointed he would be unlikely to act in JG’s interests;
13. BG is not suitable for appointment as Guardian to JG;

     

14. That the Applicant is suitable for such an appointment.

 

Therefore-

1. appoints the Chief Social Work Officer of West Lothian Council, Civic Centre, Howden South Road, Livingston, West Lothian to be welfare guardian to the Adult JG, born 17 March 1933 and residing at Rosebery Wing, Tippethill Hospital, Armadale, West Lothian for the period of five years from 13 March 2015 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:-

(a)         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;

(b)         to consent to, or withhold consent for, medical or dental treatment for the Adult as appropriate;

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

(d)         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;

(e)         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;

(f)          to make decisions regarding the Adult’s dress, diet and personal appearance;

(g)         to make decisions regarding the Adult’s social activities;

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

(2) authorises the public guardian to issue a certificate of appointment; and

(3) reserves meantime the question of expenses.

 

 

NOTE

 

 

Introduction

 

[1]          This is an application brought in terms of the Adults with Incapacity (Scotland) Act 2000. The Applicant seeks the appointment of its Chief Social Worker as Welfare Guardian to an adult, JG. It currently holds that appointment on an interim basis as it had on a previous occasion. The first appointment was the subject of a successful appeal to the Sheriff Principal.

 

[2]          The Party Minuter is the Adult’s oldest son, BG. He also seeks to be appointed as Welfare Guardian and held that appointment, on an interim basis, from November 2013 until May 2014. That appointment had been made in terms of an interlocutor issued by the Sheriff Principal and included a condition that the Party Minuter would not physically chastise JG other than in circumstances of danger to life.

 

[3]          The matter proceeded to proof held over five days to determine who should be appointed as Welfare Guardian.

 

[4]          Mr Lumsden is the Adult’s safeguarder appointed in relation to these proceedings. He has represented the interest of the Adult throughout the proceedings and at the proof.

 

Background

 

[5]          This is a matter that has been the subject of significant procedure, including two appeals. In addition to the matter before me there has been litigation connected with Mental Health Tribunal proceedings, including the issuing of various compulsory treatment orders. Taken together, there have been seven separate appeals by the Party Minuter of various orders and interlocutors issued in connection with the regulation of the Adult’s affairs. One was successful.

 

[6]          Two of the features exercising parties were, first, that the Party Minuter hits his mother in order, he said, to moderate her behaviour and would not give any undertaking not to do so and, second, that the Party Minuter maintained that he knew what was best for his mother and would act in accordance with that view even where, as it frequently was, that view was in diametric opposition to the opinions of the professionals treating the Adult.  

[7]          By the time the matter called for proof the Adult remained subject to a compulsory treatment order and was receiving that treatment in the Rosebery Wing of Tippethill Hospital, Armadale, West Lothian. That is a specialist unit for females with long-term dementia with complex and challenging needs. It provides care going beyond that that can be provided in care homes and at other hospitals. It is the only facility within West Lothian that can provide that level of specialist psychiatric care.

 

[8]          It is a matter beyond dispute that the Adult is significantly impaired by her severe dementia and that, taken together with her physical impairments, requires 24 hour a day care and treatment. She meets the criteria for requirement of appointment of a Welfare Guardian. What was in dispute, however, was who should be appointed.

 

[9]          There had been sundry procedure before the commencement of the proof including a procedural hearing at which various directions were given concerning the conduct of that proof. Witnesses spoke to affidavits. A joint bundle of documents was supposed to have been lodged but in the event only the Applicant lodged its productions on time; those from the Party Minuter consisted of a list of documents produced after hours on the day before the commencement of the proof but without the documents themselves.

 

[10]         Notwithstanding, the proof was able to proceed and it would be fair to say that the parties were well aware of the issues in the case given the extensive litigation that had preceded it.

 

The law

[11]         Parties were agreed that the provisions of the Adults with Incapacity (Scotland) Act 2000 applied. Section 1(1) to (4) sets out the principles and definitions governing any intervention in the affairs of an adult including any order made in or for the purpose of any proceedings under the Act. It provides:

“1 (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 –

 

1. 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.”

 

[12]         Applications for guardianship are regulated by section 57 which provides:

“57  (1)   An application may be made under this section by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult to the sheriff for an order appointing an individual or office holder as guardian in relation to the adult’s property, financial affairs or personal welfare.

(2)          Where it appears to the local authority that—

(a) the conditions mentioned in section 58(1)(a) and (b) apply to the adult; and

(b) no application has been made or is likely to be made for an order under this section; and

(c) a guardianship order is necessary for the protection of the property, financial affairs or personal welfare of the adult,

they shall apply under this section for an order.

 

[13]         Subsection (3) makes provisions for reports necessary to accompany such an application.          

 

[14]         Section 57 is read along with Section 59 which provides, in so far as is relevant to these proceedings,

“57(1) The Sheriff may appoint as guardian:-

(a) any individual whom he considers to be suitable for appointment and who has consented to being appointed;

(b) where the Guardianship Order is to relate only to the personal welfare of the Adult, the Chief Social Work Officer of the Local Authority

…

(3) The sheriff shall not appoint an individual as guardian to an adult unless he is satisfied that the individual is aware of—

(a) the adult’s circumstances and condition and of the needs arising from such circumstances and condition; and

(b) the functions of a guardian.

(4) In determining if an individual is suitable for appointment as a Guardian the Sheriff must have regard to –

(a) the accessibility of the individual to the adult and to his primary carer;

(b) the ability of the individual to carry out the functions of guardian;

(c) any likely conflict of interest between the adult and the individual;

(d) any undue concentration of power which is likely to arise in the individual over the adult;

(e) any adverse effects which the appointment of the individual would have on the interests of the adult;

(f) such other matters as appear to him to be appropriate.”

 

The issues

 

[15]         As this is a summary application the procedure is largely a matter for my discretion (Rule 2.31). I had ordered that a joint statement of issues be lodged. That was with a view to narrowing the issues for determination at the proof to give effect, in so far as was possible, to the views expressed by the Sheriff Principal in her judgment of 26 August 2014. At paragraph 32 she stated, inter alia, that 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.”

 

[16]         Notwithstanding, no joint statement of issues was produced albeit that both the Applicant and the Party Minuter produced their own versions. The Party Minuter’s (produced after the close of business on the day before the proof) included suggesting that one of the issues of law was whether the Applicant’s application was an “interference with the Adult’s and the Party Minuter’s private and family life under Article 8 of the Human Rights Act” and, if it was, an assertion that the Applicant “must show their application to be necessary in a democratic society.”

 

[17]         That statement of issues did not, I am bound to say, cast any real light on the true issues of the case but instead tended to focus on the areas of historical conflict the Sheriff Principal had urged be put behind in the interests of the Adult.

 

[18]         Properly understood, however, the issues before me for determination were:

 

1. Was JG incapable of making decisions about her personal welfare, or of acting to safeguard or promote her interests, and was she likely to continue to be so incapable;

    

2. Was there any means sufficient to enable her personal welfare to be promoted other than the appointment of a Welfare Guardian;

    

3. Would such an intervention benefit JG and could not reasonably be achieved without that intervention;

    

4. Was such an intervention the least restrictive option in relation to the freedom of JG and consistent with the purpose of the intervention;

    

5. What were JG’s views and the views of the Party Minuter as her nearest relative;

    

6. Was the Party Minuter aware of JG’s circumstances and condition and of the needs arising from such circumstances and condition;

    

    

7. Was the Party Minuter aware of the functions of a Guardian;

    

8. Did he have the ability to carry out the functions of Guardian;

    

9. Was there likely to be a conflict of interest between JG and the Party Minuter if he was appointed Guardian;

    

10. If the Party Minuter was appointed as Guardian was there likely to arise an undue concentration of power by him over JG;

     

11. If the Party Minuter was appointed was there is likely to be an adverse effect on the interests of JG;

     

12. If the Party Minuter was appointed he would he be likely to act in JG’s interests;

     

13. Was the Party Minuter suitable for appointment as Guardian to JG;

     

14. In the event that he was not, did the Applicant automatically fall to be appointed (all other criteria being satisfied) or did I require to be satisfied that it was suitable for such an appointment.

 

The witnesses

[19]         I heard evidence from a number of witnesses:

• Dr Suzanne Roscrow, Consultant Old Age Psychiatrist, St John’s Hospital, Livingston
• Jill Henry, Specialist Physiotherapist, Domiciliary Physiotherapy Service, St John's Hospital, Livingston
• Robert Lillie, Mental Health Officer, West Lothian Council
• Caroleanne Shaw, Charge Nurse, Rosebery Wing, Tippethill Hospital, Armadale, West Lothian
• JW, the Adult’s daughter
• Mark McIlwraith, Specialist Mental Health Officer, West Lothian Council
• Barry Steven, Edinburgh Advocacy and Representation Service
• BG, the Party Minuter

 

[20]         Based on the evidence which I heard and the documents to which I was referred, I found established the facts (supra) which were material to the issue before me.

 

[21]         I found each and all of the witnesses led by the Applicant, as well as the EARS advocate led by the Party Minuter, to be credible and reliable. Much of the evidence that they gave was based on their professional opinions. There was no contrary opinion evidence led by the Party Minuter. To the extent that the Party Minuter sought to challenge their evidence I reject those challenges and accept the evidence that they gave.

 

[22]         I set out my views of the Party Minuter below. His sister, JW, did not suffer from the same difficulties and to the extent that she gave evidence that was relevant to the issues in the main I find her credible and reliable. In particular I accept her evidence that BG’s home is not suitable for their mother. Equally I accept as reliable her evidence that it is not appropriate to use physical chastisement on a demented patient, particularly for the purposes of exerting control over that patient. I was however not persuaded by her evidence that there is a degree of familial relationship in which that was permissible but not others. I formed the impression that while she was trying to do the best to support the principle of her brother being involved in their mother’s care that she was not aware of all that had gone on, the views of the professional advisors and his obstructive behaviour. In her support she was well meaning but perhaps rather naive.

 

Submissions

 

[23]         Lengthy submissions were made on behalf of the Applicant and the Party Minuter. The safeguarder adopted the Applicant’s submissions with some additions.

 

Applicant

 

[24]         It was the Applicant’s position (with which the Party Minuter and the safeguarder agreed) that the Adult lacks capacity. It was clear from the evidence, it was said, that a guardianship order was necessary for the welfare and benefit to the Adult. Her severe debilitating dementia and osteoporosis along with very significant mobility difficulties exacerbated by fractures meant that she was unable to make decisions about her welfare and medical treatment. Her current level of dementia was such that mobility will not improve and there would be no benefit from further physiotherapy. 

 

[25]         The Applicant submitted that the treatment the adult requires and receives is round the clock specialised in-patient nursing care. In the circumstances a Welfare Guardianship order would benefit her and that benefit could not reasonably be achieved without that intervention.  Relying on the Sheriff Principal’s judgment, the welfare of the Adult and the benefit to her was the overarching principle to which the court should have regard.

 

[26]         Standing the evidence of all the professionals that the Adult requires the in-patient care she currently receives, a Welfare Guardianship order would be the least restrictive option, it was submitted.

 

[27]         While it was accepted that the adult’s past wishes and feelings were to live with her son, the evidence was that it was not possible to ascertain her current views. In any event such wishes were not determinative, submitted the Applicant, nor were the views of the others consulted.

 

[28]         I should reject the Party Minuter’s argument that the application was not required in circumstances where there was another candidate. Any person claiming an interest in the adult’s welfare could make an application and that included the local authority.

 

[29]         As the applicant was, in effect, the default guardian it was not subject to the "suitability" test, it was submitted. That test (section 59(4)) applied to individual applicants such as the Party Minuter. Such an individual should not be appointed unless the Sheriff was satisfied that he or she met the requirements of section 59(3).

 

[30]         I should have regard to a number of troubling aspects of the Party Minuter’s position, said the Applicant.

 

[31]         While in his pleadings the Party Minuter conceded that the Adult’s condition was unlikely to improve that should be contrasted with the approach he took in evidence, said the Applicant. It was clear that he refused to give any weight to the opinions of the various health and social work professionals.

 

[32]         I should be concerned that while the Party Minuter was adamant that the Adult’s mobility could be restored and that, as the Party Minuter put it, exposing her to risk of falls was “a risk worth taking”, that was wholly contrary to the opinions of various care professionals.

 

[33]         I should also be concerned, said the Applicant, that the Party Minuter’s justification for physical chastisement appeared to be based on a combination of a diversionary tactic, assimilating (sic) his mother’s capacity to learn with that of a child and a role reversal of the normal parent/child relationship. He used it to remind his mother “who is in charge”. Moreover the Party Minuter had stated his intention to remove the Adult from hospital in full knowledge of her current condition and abilities and his own inability to provide adequate care for her.  

 

[34]         In these circumstances, it was submitted, the Party Minuter had failed to meet the requirements of section 59(3). He had acted and continued to act in a manner not conducive to the Adult's benefit and welfare.  During the time of his appointment as interim guardian he had lied to hospital staff immediately prior to removing his mother, against medical advice, from hospital. He has shown a consistent inability to work with the health and social work professionals primarily involved in the Adult's care.  He deliberately failed to obtemper the terms of the appointment and refused to answer any questions relating to chastisement at his supervisory reviews.  He had displayed consistent unwillingness to follow the body of medical advice and opinion despite having no medical opinion of his own which either supported his position or contradicted the advice of the medical practitioners treating the Adult.

 

[35]         All of that indicated a likely conflict of interest between the Adult and the Party Minuter as well as an undue concentration of power in his hands.  If he was appointed as welfare guardian that would have adverse effects on the Adult, it was submitted. She would be exposed to the certainty of continuing physical chastisement and an increased risk of falls with the likelihood of injury.

 

[36]         In the circumstances the Applicant, as default, should be appointed as welfare guardian.

 

[37]         Esto, should I determine that the Party Minuter was suitable then a comparative analysis would be required, it was said.   Given the high conflict, his distrust of the Applicant, his conviction that he and only he knew what his mother required and that only he could provide care for her it was highly likely that the Party Minuter would not cooperate with the Applicant, it was said. In the circumstances the Applicant was the preferable appointment. 

[38]         In the event that the Party Minuter was to be appointed then it should be on the same conditions as those imposed in the interim welfare guardianship order granted on 21 November 2013.  

 

Safeguarder

 

[39]         While adopting the Applicant’s submissions, the safeguarder also argued that the Party Minuter’s acceptance in evidence that his accommodation was not suitable meant, of necessity, that he could not overcome the hurdle of section 59(3). Only in his evidence did he make any mention of thinking about finding alternative accommodation but that was a new development and not something that he had mentioned in his pleadings.

 

[40]         As the safeguarder put it, the Party Minuter “ploughed a lonely furrow” and had even lost the support of his sister.

 

[41]         Should I be satisfied that the Party Minuter had overcome the requirements of section 59(3), I could not be satisfied that he was suitable for appointment. His actings throughout clearly showed that he could not and is unable to take into account the views of professionals, to rationalise the situation and act in the Adult’s best interests.

 

[42]         The evidence was clear and unambiguous, submitted the safeguarder; the Applicant should be appointed as welfare guardian.

 

Party Minuter

[43]         In answer to his own question – what is the purpose of guardianship? – the Party Minuter submitted that it was to safeguard his mother’s human rights rather than to usurp them; to promote her autonomy and independence; as far as possible to respect her wishes, and only interfere with them when it is clear that they would result in harm, and then only to the least extent necessary. It was his position that what he described as the Applicant’s “policy” was to force upon his mother its views of what is best for her. He submitted that that was tyranny over the weak and vulnerable, but not guardianship.

 

[44]         The Party Minuter submitted that it was beyond dispute that his mother wanted to live at home, to be cared for by him, and for him to make any decisions which she could not make.  While acknowledging that those wishes were not determinative nevertheless I required to have regard them, and to his, he said.

 

[45]         Moreover, said the Party Minuter, it fell to the Applicant to show that appointment of his mother’s choice of guardian would be of significant detriment to her before I could refuse his minute, albeit that he was not able to point me to any authority in support of that proposition.

 

[46]         His application was supported by his sister, argued the Party Minuter. Regard should be had to her evidence as a relative and as a character witness for him. He accepted that when pressed she admitted that she was not certain that he could look after the Adult at home in her present condition, but she did not alter her view that he was the best person to make beneficial decisions for their mother.

 

[47]         It was the Party Minuter’s submission that his appointment would be the least restrictive option. He had cared for and made informal decisions on behalf of his mother for years and supported her right to be as independent as possible, to live in the community, and to regain the ability to walk with minimum assistance consistent with her safety.

 

[48]         In so far as the requirements of section 59(3) were concerned it was, said the Party Minuter, plainly wrong to suggest that he was not aware of the Adult's condition and her needs merely because he disagreed with the professionals' views of how those should be met. 

 

[49]         He had the ability to carry out the functions of guardian, submitted the Party Minuter. The prime function of guardian, he said, was to safeguard his mother's welfare by making beneficial decisions which were, as far as possible, in line with her wishes and avoided self-interest. He had defended her right to autonomy in the courts and tribunals, in the face of considerable opposition and setbacks, making seven appeals which he believed were beneficial and necessary.  

 

[50]         He was, said the Party Minuter, an objective decision maker, could gather and evaluate relevant evidence and consider alternative views. That he persistently disagreed with the professionals on some issues reflected their importance for his mother's welfare but did not imply that he did not appreciate their concerns. On the contrary, he argued, it was the applicant’s decisions that lacked objectivity. Whenever he had been in the wrong, such as deceiving staff at the hospital when he removed his mother and when he failed in his duty to keep his mother safe in December 2013, he had admitted it he said. It should be noted that staff at the hospitals had not taken any responsibility for the falls and fractured wrist his mother has suffered in their care.

 

[51]         He had always sought dialogue with the professionals, submitted the Party Minuter, and offered compromises despite the existence of conflict.  The reason he had refused to attend Adult Protection Case Conferences was because they presumed his guilt, were confrontational, and ignored his and his mother’s views.

 

[52]         When he refused to work with the social worker, and his successor, he had requested replacement social workers and engaged with them, submitted the Party Minuter. He had been entitled to reject the applicant’s ultimatums to return his mother voluntarily or be compelled by law to do so. 

 

[53]         On each occasion that he had disagreed with professionals he had always offered his reasons and evidence, said the Party Minuter, but had been excluded from decision making. There was, he said, no law that required a guardian to follow medical advice which he had reason to believe was not in the Adult's best interests.

 

[54]         He had not had conflicts with his mother, submitted the Party Minuter, other than to go against her wishes to put her into a care home in the first instance. By contrast, the Applicant had failed to acknowledge that its own agenda for his mother was diametrically opposed to her wishes.

 

[55]         I should reject the suggestion that there would be an undue concentration of power if he was appointed guardian, said the Party Minuter, whereas instead there would be an enormous concentration of power over his mother by the Applicant. Moreover I should reject the suggestion that his appointment would expose her to significant risks to her health and to being smacked. She was already exposed to risk and distress in hospital, argued the Party Minuter.

 

[56]         It would be to her detriment for his mother to remain in hospital where she would not be given exercise, said the Party Minuter, when she would receive that at home. Although it had been said that further physiotherapy would be ineffective that was because of the hospital’s inability to communicate with his mother. In contrast he would be able to communicate with her but his offers of assistance had been ignored.

 

[57]         It was the Party Minuter’s position that the professionals and the Applicant misrepresented his occasional smacking of his mother as a misguided attempt to train her. He only used it as a last resort, to the minimum extent, for immediate effect, to divert her from dangerous behaviour and avoid greater harm, he said. It formed part of his broader treatment strategy to understand and avoid the causes of challenging behaviour. 

 

[58]         He submitted that although unorthodox, smacking was not illegal.  When controlled and used as a last resort within a close family relationship it was, he submitted, no worse than the restraint used by nurses, and a more humane and less distressing technique than the policy of confining his mother in hospital and preventing her from walking.

 

[59]         The Party Minuter did not accept that a repeat of the Sheriff Principal’s “no smacking” condition was necessary and would not be soundly based on evidence and law. It would amount to an arbitrary interference with, and fettering of his, as guardian’s, statutory discretion to act in the Adult's best interests.  He would not agree to such a condition and if it was imposed he would not abide by it.  Instead he would rely on physical chastisement as a technique to control his mother’s behaviour where he, in his discretion and applying the principles, considered it appropriate.

 

[60]         The Party Minuter accepted that it was not possible to devise an arrangement to police such a condition if it was imposed and that it relied on his subjective reporting of the circumstances in which it was used, the force exerted and its effectiveness. The court would require to rely on his reporting to his supervising social worker about those matters. He accepted that during the currency of the previous interim order he had refused to answer his supervising social worker’s questions about the use of chastisement notwithstanding that it was a condition of the appointment but that was because he was gathering evidence to try and trap him, argued the Party Minuter. He would be prepared to report to a supervisor provided it was someone who was sympathetic to his views and attitude.

 

[61]         It was to the benefit of his mother for her to remain in the community, submitted the Party Minuter, and be cared for by him, a devoted, loving relative, and that must be offset against any actual (rather than imagined) increase in risk.

 

[61]         The appointment of the Applicant would infringe his and his mother’s human right to a family life, said the Party Minuter, and was not necessary in a democratic society. It was not a proportionate response to the Applicant’s adult protection issues. A simpler, proportionate response would be to support his care for his mother by providing him with training, resources and proper assessments of his ability to mobilise her safely.  That was available to others, so why not to him, he asked.

 

Discussion and decision

 

[62]         This has been an anxious case. Whatever the issues and animosities between the parties, at the heart of the litigation is an adult who is sufficiently seriously incapacitated that she requires the appointment of a Welfare Guardian and, at least at the time of the proof, is subject to compulsory mental health treatment measures.

 

[63]         One of the consistent themes that emerged from the evidence was that the Party Minuter was hostile and suspicious of the Applicant and its motives. He did not characterise it as such, and asserted that he had good reason not to trust it, but suspicion and hostility found echo in some of the language he used in submissions.

 

[64]         Simply by way of example, of the Applicant he spoke about it having a “…policy to force upon (the Adult) its views of what is best for her; this is tyranny over the weak and vulnerable…” He spoke of his “refusing” to attend Adult Protection Case Conferences; he said that he had “rejected their ultimatums”. The Party Minuter said that the Applicant had “its own agenda for my mother” and referred to one of its witnesses “unreasonably refusing to acknowledge” the evidence of another.

 

[65]         Another theme was that the Party Minuter was rigid in his thinking, inflexible and unwilling or unable to accept advice or recommendations of others. That criticism was made, to a greater or lesser extent, by all of the Applicant’s witnesses. It was, said Mr MacEchern, one of the reasons why the Party Minuter should not be appointed.

 

[66]         Before me the Party Minuter argued that that was an unfair characterisation; that he had consistently sought to find compromise and middle ground. It was not he who was at fault; all he was trying to do was represent his mother’s views and best interests in the face of the juggernaut of self-interest that the Applicant represented. The Party Minuter pointed to examples where he said he had been the voice of reason and asserted that just because his view was the minority did not make him the one who failed to compromise.

 

[67]         I was not persuaded. Instead I formed the impression that the Party Minuter was as described by the Applicant’s witnesses – a person unable or unwilling to accept the views and advice of others unless they coincided with whatever views, ill-informed or otherwise, he should happen to hold. That included what I saw as an inflexible and irrational refusal to accept advice from a wide range of health and other professionals about what was in his mother’s best interests. On the basis of the evidence I heard I am satisfied that he consistently showed an obstinate determination to do what he, in his sole discretion, considered to be correct even where that was in direct conflict with the advice he received. To put the matter shortly, he knew best and anyone who disagreed was wrong.

 

[68]         Although there were many examples of that throughout the evidence there were three passages that illustrate the point.

 

[69]         First, on two separate occasions the Party Minuter had removed his mother from an environment that in the opinion of the professionals caring for her was best for her. Once he removed her from a care home and once from hospital. Only one of the troubling aspects of the latter removal was that he did so in a deceitful manner (that was his description), deliberately lying to the nursing staff in knowledge that they would try and stop him. Although he had planned this removal he took his mother from hospital without medication and without putting in place any of the care he knew she would require as soon as he got her home.

 

[70]         In evidence he was somewhat indignant of the criticisms made of that aspect of the issue, asserting that the problem was quickly solved when an “emergency package of care” was put in place that evening. That is an entirely self-serving argument and one that does him no credit. As with many other occasions he placed his own assessment of what he considered best above that of the professionals.

 

[71]         That the Party Minuter was the interim guardian at the time of the removal from hospital makes matters worse, not better, for him. He spoke of his having the “power”, the “right” to remove his mother, and that the assessments made at the pre-discharge conference in March 2014 were made without regard to his ”rights” as guardian. He spoke of decisions being made without his input; that was flatly rejected by the other witnesses whose evidence I accept. What the Party Minuter appears to disregard is that any rights or powers that he had as interim guardian required to be exercised in an appropriate fashion and where, as it was, the advice was that it was not appropriate for the Adult to be discharged home he was not entitled to override that advice and act as he sought fit. Properly understood, that is what he did.

 

[72]         Second, the Party Minuter has chosen – deliberately – to disregard one of the conditions the Sheriff Principal placed on his appointment as interim guardian. The Sheriff Principal, in effect, qualified that appointment by making it subject to a condition that he refrain from physical chastisement of his mother unless no other method of restraint or control would prevent danger to her life or other serious injury. Moreover he was under an obligation to cooperate in the monitoring of his compliance with that condition.  

 

[73]         The Party Minuter was fully aware that his appointment was subject to conditions. Nevertheless he breached those conditions by hitting the Adult in circumstances that, he accepted, did not comply with the condition. Indeed it was his position that he never intended to comply with the Sheriff Principal’s condition. He refused to tell the social worker about that because the Applicant was just looking for evidence to trip him up.

 

[74]         As with other passages of his evidence, the Party Minuter gave various justifications for his actions – he hadn’t agreed to the condition; it was imposed on him; it should not have been imposed; it was unnecessary. However the short version of his position was that he felt free to pick and choose what conditions he would comply with and when and in what circumstances, all in his sole discretion. Again, he knew better and anyone who disagreed with him, including, in this case, the Sheriff Principal, was wrong.

 

[75]         Third, in his attitude to the physiotherapy assessments.

[76]         The Party Minuter is not a physiotherapist. He has had no training in the field and has nothing more than a layman’s knowledge. His knowledge of what is and what is not appropriate physiotherapy for any person is no better than the average man on the street, even one who has taken the time to surf the internet.

 

[77]         The Party Minuter had not any training in manual handling techniques nor has he had any professional training in the needs and requirements of treating dementia patients.  

 

[78]         Nonetheless it was the Party Minuter’s position that both of the physiotherapy assessments were wrong and ill founded; the recommendations should be set aside and that he ought to be allowed to mobilise his mother. Underlying that position is his assertion that he, uniquely, has the skills to reach through the Adult’s dementia, communicate, understand and interpret with and for her in a way that no one else has been able to do. In particular he believes he would be able to do so in such a way that she would be able to understand and retain physiotherapy instructions and would be able to do so where others, including the trained professionals, had failed.

 

[79]         Properly considered that is an arrogant and extremely troubling attitude that is likely to place his mother at risk if he is given the opportunity to act on it.   

 

[80]         Picking up one of the threads of the Party Minuter’s attitude to the Sheriff Principal’s appointment of him, whether he is correct in saying, as he does, that the abhorrence for the use of physical chastisement of an adult with dementia is “political correctness”, one can ask whether the Adult would consent to physical chastisement if she had the capacity to express a view. Would she agree to allow her son to hit her if he thought that she had got out of hand in circumstances where he would be the sole arbiter of whether she had and the amount and extent to which she would be hit?

 

[81]         Self-evidently I cannot know the answer to that question and the issue might not arise if she had capacity, but in considering the matter before me it highlights a conundrum at the heart of the Party Minuter’s position.

 

[82]         The Party Minuter claims he has the skill to communicate with and understand his mother, her needs and wishes, better than anyone because he is her son and has spent his lifetime with her. That is a bold assertion to make. A familial relationship does not give one a monopoly on the interpretation of an adult’s wishes. I have no way of knowing – other than his assertion – that the Party Minuter can accurately and objectively report the Adult’s wishes never mind effectively communicate with her on such critical issues as whether she should be removed from hospital contrary to all advice, be subjected to physiotherapy when the professionals say she should not and be physically chastised whenever her son deems it appropriate.

 

[83]         If she was able to know what the professional advice was and that she would be hit if she got out of hand and he could not cope, would the Adult really wish her son to be her guardian? That seems unlikely.

 

[84]         Although I cannot know the answer directly from the Adult, I did have the benefit of the safeguarder who was appointed with the express responsibility of representing her interests. His clear, unequivocal and unqualified position was that the Adult should not be exposed to the certainty that the Party Minuter, if appointed, would physically chastise her.

 

[85]         Even if I accepted that there was a proper basis for the Party Minuter’s suspicion that the Applicant had an inappropriate campaign or agenda to, in effect, deprive his mother of him – and, for the avoidance of any doubt, I do not – the same accusation could not be levelled at the safeguarder. I should, and do, place weight on the views he expressed to me. While not determinate of the matter, I am satisfied that those views are entirely consistent with, and supported by, the evidence.

 

[86]         The Party Minuter’s attitude to the issue of chastisement (a word coined by him in these proceedings but one which, after all, is a euphemism for hitting) was troubling but also illuminating of his attitude towards his mother and his role in her life. He spoke of using it as a technique to “remind her who was in charge”. Other witnesses expressed significant concern about that attitude, suggesting that it was wholly inappropriate and unsuitable. Based on the evidence, I agree with those views.

 

[87]         The Party Minuter described the circumstances in which he used chastisement, and asserted that there was no evidence of any harm resulting; there were no injuries to his mother and no one could show that there was any psychological harm, he said. At its barest, that may be correct, but it is rather beside the point. The use of chastisement always happened when there was no one else present and so one has to rely on the Party Minuter’s own account and assessment of its effectiveness. In other respects I found him to be self-serving and prone to minimising his culpability while pointing the finger of blame at others. I am not confident that I can rely on him. Indeed, the only occasion when a third party witnessed an incidence of chastisement (the Adult’s neighbour who saw the Party Minuter hit her on the cheek) appears to have been the source of the report of abuse to the social work department which triggered the adult protection concerns. That is troubling.

 

[88]         However, even without that I would not and could not agree that it is in the Adult’s best interests to be placed in a situation of the certainty of physical chastisement. The Party Minuter steadfastly refused to accept that he should not smack his mother and told me that if that was as a condition of his appointment he would not comply with it. That is a further example of the Party Minuter asserting what he saw as his own superior insight into his mother over the views and wishes (or in the case of the Sheriff Principal’s appointment, order) above all and any that did not agree with him.

 

[89]         Although the Party Minuter did not expressly use the term “conspiracy” that was the thrust of what he appeared to believe was the case in relation to him and his mother. He regarded every professional with whom he had any contact in connection with his mother as ill informed, wrong and badly motivated except to the limited extent that they might happen to agree with him. In reality they rarely did and so he was constantly and consistently placed in a position of conflict with them. In my view that was conflict that was of his making, not theirs.

 

[90]         There was nothing in any of the evidence that I heard that persuaded me there was likely to be less, not more, conflict should the Party Minuter be appointed.

 

[91]         Turning then to the issues, the first four were reasonably straightforward on the evidence.

 

[92]         The Adult was clearly incapable of making decisions in the interests of her personal welfare and will continue to be so.

 

[93]         There is no means sufficient to enable her personal welfare to be promoted other than the appointment of a Welfare Guardian. The existence of the compulsory measures relates only to treatment whereas a welfare guardianship extends far beyond treatment; given the incapacity such an intervention is required.

 

[94]         It would be of benefit to the Adult and could not reasonably be achieved without that intervention.

 

[95]         I am also satisfied that such an intervention is the least restrictive option in relation to the freedom of the Adult and consistent with the purpose of the intervention. I do not accept the Party Minuter’s rather vague suggestion that it was in breach of his mother’s (and, curiously, his) human rights. It is a least restrictive intervention and, to the extent that I do have to consider it, I find that it is proportionate and necessary in a democratic society.

 

[96]         I am also satisfied that when she was able to express considered views that it was the Adult’s wish to live with the Party Minuter. His view, which I accept is considered, is the same. It was accepted that those views do not determine the matter. I have already observed about whether the Adult would maintain her view if she in fact knew what her son had in store for her.

 

[97]         The next issue relates to the requirements of section 59(3). At its most literal I accept that the Party Minuter is aware of the issues provided for in that subsection. That he acts in contradiction to those issues is not the test at this stage; it is one of awareness rather than action.

 

[98]         Turning then to consider the provisions of section 59(4) it is with little difficulty that I conclude that the Party Minuter is not suitable for appointment.

 

[99]         The Party Minuter is certainly accessible to the Adult but that was not a matter that was in dispute.

 

[100]       What was disputed, however, was the Party Minuter’s ability to carry out the functions of Guardian. On the evidence I am satisfied that he is not able to do so. When he was trusted with that responsibility he demonstrably failed. He removed his mother, covertly, contrary to the advice of the wide range of professionals charged with her care. He did so without taking the most basic of steps to have some kind of back up care available. It was only because of the urgent steps taken by the Applicant that a package of care was put in place. The Party Minuter did not take responsibility for something which he, as interim Guardian at the time, ought to understand was one of the cornerstones of his duties. 

 

[101]       Moreover, the Party Minuter removed the Adult from hospital when the professional opinion was that she should not be mobilised, and certainly not by a single person, but he was determined to do exactly that. He was aware of that opinion and why it was held but he was determined that he knew better than they.

 

[102]       That is only one of the several occasions on which the Party Minuter placed his own ill-informed amateur opinion over those who had professional responsibility for the care of his mother. A person who will do that, who will not accept that they should not and whose expressly stated intention is to do so again given the opportunity cannot, objectively, be said to be a person able to carry out the functions of Guardian.

 

[103]       It is also clear from the evidence that if he was appointed it would be likely that there would be a conflict of interest between the Adult and the Party Minuter. That is at its most stark in his dogged determination to use physical chastisement to control his mother. For the reasons I have explored it is, objectively, unlikely that the Adult would consent to that treatment if she had the capacity to make rational and considered decisions. In contrast the Party Minuter has such capacity but nonetheless chooses to make a decision that is to the contrary. That is the definition of conflict of interest.

 

[104]       For the same reasons it is likely that an undue concentration of power would arise if the Party Minuter was appointed. In his witness statement he said that he hit his mother “to remind her who was in charge”. Those were his words; that was how he chose to describe his actions and their relationship. Again, that is almost definitive of an undue concentration of power.

[105]       I also consider that there would be adverse effects on the interests of the Adult if the Party Minuter was appointed. She would certainly be subjected to physical chastisement. She would be subjected his personal views of her needs and where they were in conflict with those of the professionals his would be given precedence. I could have no confidence that he would act in the Adult’s best interest and that is likely to have an adverse effect on her interests.

 

[106]       Individually any of these would be sufficient in my view to make the Party Minuter unsuitable. However even if I had not been persuaded that each individual factor taken on its own did not merit such a conclusion, taken together there is a powerful and convincing case that he is unsuitable for appointment.

 

[107]       The relationship between the Party Minuter and all others involved in the Adult’s care has been mired with conflict, strife, irrationality and unpredictability. The Party Minuter presents himself as the voice of reason in a world gone mad. He appears to have some utopian vision of a future where his mother will be up and ambulant on her own so as to lead a far more independent existence than she does at present. There was absolutely nothing in the evidence that would suggest there is any prospect of that at all. No doubt that is a source of considerable sadness for the Party Minuter who clearly has intense feelings for his mother and would like things to be very different. Unfortunately they are not and there is nothing to suggest that appointing the Party Minuter would make it so. If anything, quite the reverse.

 

[108]       There were hints in the evidence of allegations of sexual abuse by the Party Minuter. However no evidence was led and I was told by the Party Minuter that those allegations had been investigated and dismissed. For the avoidance of any doubt I should make it clear that I have discounted that aspect of the case – in the absence of any evidence this was simply innuendo and insinuation.

 

[109]       In all the circumstances it is my view that the Party Minuter is not suitable for appointment.

 

[110]       Parties were not as one on the issue of whether it was necessary for there to be a comparative exercise between the Applicant and the Party Minuter, whether I required to assess the suitability of the Applicant even in the event that I concluded that the Party Minuter was not suitable or whether the Applicant would fall to be appointed, in effect, by default.

 

[111]       Taking these propositions in turn, should I have been required to carry out a comparative exercise, I would have concluded that that comparison favoured the Applicant.

 

[112]       They are both accessible to the Adult so there is no difference between them.

 

[113]       In a comparison between the Party Minuter and the Applicant, the latter has demonstrated an ability to carry out the functions of Guardian. It has acted on the advice of the professionals involved; I do not accept that they are, as suggested by the Party Minuter, partisan. That some are employed by the Applicant and some are employed within an NHS organisation that operates in partnership with the Applicant is nothing to the point in the absence of any evidence of subjectivity or bias. I saw none. On the evidence I am satisfied that compared with the Party Minuter the Applicant has the ability to carry out the functions of guardian.

 

[114]       In a comparison between the Party Minuter and the Applicant, there is no evidence that there would be a conflict of interest with the Adult if the latter was appointed. The only point of difference might be that, when last able to express a view, the Adult’s wish was to live with her son. However while the Applicant, if appointed, would not give effect to that wish that is because it is not in her interests. Properly understood there would not be a conflict of interests; their interests coincide. The same cannot be said of the Party Minuter for all the reasons given.

 

[115]       In a comparison between the Party Minuter and the Applicant there would not be an undue concentration of power if the latter was appointed. Unlike the Party Minuter the Applicant has demonstrated a consistent desire to care for the Adult in her best interests and does not abuse the power that it has had over her. The same cannot be said for the Party Minuter for all the reasons given.

 

[116]       For similar reasons, in a comparison between the Party Minuter and the Applicant there would not be adverse effects on the interests of the Adult if the Applicant was appointed. There would if the Party Minuter was appointed.

 

[117]       To put the matter shortly, if I required to choose between the Party Minuter and the Applicant in a comparative sense I would have no difficulty in choosing the Applicant.

 

[118]       I accept the proposition that the Chief Social Worker is the default appointee where a guardianship order is required and that it is not necessary that I consider its suitability. However, if I am wrong in that, for the reasons given if I was required to consider the suitability of the Applicant in the absence of another suitable prospective guardian I would consider it suitable for appointment.

 

Expenses

 

[119]       I was not addressed on the issue of expenses and those are reserved meantime.

 

 

 

Sheriff Susan A Craig

Sheriff of Lothian and Borders at Livingston

13 March 2015