GUARDIANSHIP ORDER IN RESPECT OF MONA MCDOUGALL OR MULDOON BY PAUL MULDOON
AW 37/04
Guardianship Order in Respect of Mona McDougall or Muldoon
Application by Paul Muldoon
Note :
Background
This is an application under the Adults with Incapacity (Scotland) Act 2000, in which the Applicant, Paul Muldoon, seeks an order under section 57 of the Act appointing him as guardian with powers relating to both the welfare of, and the property and financial affairs of, his mother, Mrs Mona McDougall or Muldoon (hereafter, "the adult"). The welfare powers sought are (a) to decide where the adult should live, (b) to have access to confidential documents, and (c) to consent to, or withhold consent to, medical treatment.
When the application was originally received on 4 June 2004, there were aspects of its form which required correction, and when that had been attended to, I ordered, on 22 June 2004, that it could be warranted and intimated upon relevant persons.
As is required by the terms of section 57 of the Act, such an application must be accompanied by two medical certificates in prescribed form, and a report by a Mental Health Officer which must contain his opinion as to the general appropriateness of the order sought and the suitability of the individual nominated as guardian (section 57(3)(b)(i) and (ii)). The medical position is not in dispute: the adult, who is 77 years old, is suffering from severe vascular dementia which is a permanent condition. She is no longer capable of independent living or of managing her own affairs.
The report by the MHO, on form AWI[2], however, makes it plain right from the opening paragraph that the writer's view was that with regard to the welfare powers sought, the proposed order would not benefit the adult, having regard to the general principles set out in the section 1 of the Act. It was accepted that the granting of financial powers was necessary. She has a home to which she is unable to return, cannot manage her finances, and, apart from anything else, the home will require to be sold.
The Section 1 Principles
Put broadly, I am not allowed to intervene in the affairs of an adult unless (i) I am satisfied that the intervention will benefit the adult, and that that benefit cannot reasonably be achieved without the intervention [my highlighting] (section 1(3)), (ii) that any intervention which is being made is the least restrictive option in relation to the adult's freedom, consistent with the purpose of the intervention (section 1(4)(a) and (b)), and (iii) that in determining whether, and is so, what, intervention is to be made, account shall be taken of the past and present wishes of the adult, the views of the nearest relative and the primary carer, and the views of any other person appearing to me to have an interest in the welfare of the adult or in the intervention (section 1(4)(d)). I construe that last provision as including the views of a safeguarder appointed under section 3(4)(a).
The MHO stated that the proposed (welfare) order would not be the least restrictive option. The Applicant, who is the son of the adult, (she has a surviving brother too, who is aware of the application), wished to be granted a power to decide where the adult should live. He wanted her to live at Quayside Nursing Home, in Glasgow, but the MHO pointed out that she was already living there, had no desire to go elsewhere, so far as could be ascertained, was quite content and manageable, and that everyone involved in the case agreed that this placement was the most desirable one for her which was meeting her needs already "on an informal basis" (again, my highlighting).
He stated that the Applicant was already getting access to confidential documents, by permission of the Home Manager, and that there were currently no issues in relation to medical treatment. If that situation changed, the MHO opined that the Applicant could always return to court with a specific Intervention Order under section 53. (All of the financial powers sought were regarded as appropriate, and I will not therefore dwell on that aspect of the matter any further).
As to wishes of the adult, the MHO reported that the adult told him that she did not want her son to be guardian, and was quite happy with where she was staying, having no desire to leave. She easily becomes confused.
For the sake of completeness, the MHO was quite satisfied that the Applicant was a suitable person to be the adult's guardian, having addressed the appropriate tests set out in section 59. It is also stated in this report that the Applicant's solicitor was concerned that there appeared to be no formal authorisation in existence for the adult's residence at her current address, and that this require to be ruled upon. The MHO opined that while that may have been the situation before she went there, she was now happily settled, everyone agreed she should stay there, and that no authorisation was therefore required, (again, my emphasis).
Let me just add at this point that it is commonplace, and wholly acceptable to me, to have the residence provision worded as it is here. Many of the Homes in which adults with incapacity now live are in the private sector; from time to time such establishments will close, or otherwise go out of business, necessitating a move for then residents, or the regime may change in such a way that is unacceptable to the adult or the guardian, and it is desirable that the guardian must have the power to continue to make such arrangements without the need for recourse to the court.
Appointment of Safeguarder
Having observed these comments by the MHO on 4 June, on first reading the report, it was immediately obvious to me that this was a case where the appointment of a safeguarder might be necessary. I made such an appointment on 22 June 2004, when I warranted the Application for intimation.
The Act, by section 3(4) obliges the court, in every application under the Act, to consider whether it is necessary to appoint a person for the purposes of safeguarding the interests of the adult. In some cases, and this was one of them, the desirability of making such an appointment is flagged up in the papers right from the outset, and I was satisfied that an appointment was necessary in this case.
There is a general point here of considerable practical importance. It is only in the small minority of cases considered by the court that appointment of a safeguarder will be made as being necessary. In every case where I have made such an appointment, though, the issue has arisen immediately as to the means by which such an individual so appointed is to be remunerated for professional services rendered.
The jurisdiction of Glasgow Sheriff Court, having by far, in Scotland, the largest number of applications under the Act on an annual basis, is fortunate in the extreme in having a cadre of legal practitioners who are not only knowledgeable about, but are vastly experienced in, and genuinely interested in, the law relating to all aspects of Mental Health issues. This court has, over a period of years, come to depend and rely upon the expertise possessed by these practitioners. The individual I appointed in this case, Mr Peter Woolfson, is one of that group I have just described.
Such individuals do not however, rely solely on their own expertise in providing input and assistance to the court. It is now a matter of routine (and good professional practice) for them to instruct an independent psychiatrist (where appropriate - it was not necessary here) and a report by an independent social worker, in order to be able fully to make submissions to the court. In addition, they require to interview all relevant persons, including the adult.
For what I hope are obvious reasons, the task faced by such professional persons in undertaking, within the constraints of time limits, the interviewing of and assessment of persons in the places where they may be resident, which range from small private Care Homes all the way up to and including the State Hospital, is a delicate, time-consuming and skilled one, and for the assistance they render the court, in what is after all a court appointment as directed by the Act, they deserve to be properly remunerated.
I am repeatedly given to understand in the course of dealing with applications under this Act that the process of obtaining proper remuneration is a difficult one. It has, I am advised, never been easy for the benefit of Legal Aid to be obtained. I am advised that despite the announcement of changes in the system to alleviate the problem, these changes have not been promulgated, and that difficulties still persist. As a result, in many cases, and this was one of them, I have been asked to order that the costs of the safeguarder should be borne by the adult's estate, or in a case where the application is made by the Local Authority in terms of their duty under section 57(2),(where an order appears necessary but there is no likelihood of an application by any relative or other person), by the Local Authority.
While it is not my place to become involved in the practicalities of organising and allocating budgets, it has to be appreciated that the Act obliges the court to consider making such appointments in every case, and that the court cannot properly discharge its responsibilities without having regard to the views of such persons appointed. In cases where the Local Authority is the applicant, which is an increasingly large number, it regularly being the case that relatives are unable or unwilling to make application themselves, the costs have to come out of the Social Work budget, which has, of course, many competing demands, and in cases where the costs are ordered to be borne out of the adult's estate, this has the very serious effect of depleting the adult's own, often modest, resources.
In the present case, the solicitor for the Applicant reported that the Adult was the owner of a small, modestly valued house, plus about £40,000 in savings. Such adults are often self-funding in the Homes in which they reside, so the extent of the capital available is constantly dwindling.
Interim Orders
While the safeguarder was making his investigations, a motion was made to grant to the Applicant certain interim financial powers in order to progress matters. This was made on 19 August 2004 and the consideration of the application was continued, ultimately, until 27 October 2004, in order for the Applicant to consider whether it was still necessary to seek welfare powers having regard to the terms of the report by an independent social worker, Mr Tom Keenan, which had by then been lodged by the safeguarder.
The Independent Report
This makes it plain that the adult suffers from impaired judgement, severe memory impairment, communication problems and reduced ability to self care, all to the risk of her health and safety. Mr Keenan notes at the outset that the basis of the welfare powers sought in the application is to provide a legal framework to require her to reside where the guardian decides. She receives 24 hour nursing care in her present placement. Mr Keenan opined that the benefit to the adult in having a family member take welfare decisions on her behalf could be achieved without the order. He thought that the least restrictive order would be an informal framework of care, which she is currently enjoying. He found it impossible to ascertain her views, but the views of the primary carer, the Home manager were that she was completely settled, with no desire to leave, and was happy and comfortable. He did not think that guardianship powers were necessary to require her to remain there. She does not really understand where she is.
For the avoidance of doubt, he was sure that the proposed guardian would be suitable, and that financial powers were necessary.
His conclusion was significant. While noting her severely impaired capacity to make decisions, she was, he said, "compliant" with the care provided and to remaining where she was. Although recognising the noble motivation of the Applicant, he noted recent guidance from the Mental Welfare Commission for Scotland (Authorising Significant Interventions for Adults Who Lack Capacity, August 2004), which suggests a selective approach towards incapable adults. He said he agreed with that in the case of the adult who was incapable and "compliant" (that word again - I will return to it) and believed that welfare guardianship was not necessary to ensure her health, care and welfare.
The Interim Financial Powers
These had first been granted on 19 August 2004. As is often the case when a safeguarder has to make detailed enquiries, the case could not be finalised within 3 months of their being granted. Accordingly, a hearing had had to be fixed for 16 November 2004, before they expired. In the event, the safeguarder was still not in a position to make submissions on that date, partly because I had asked parties to consider the decision of the European Court of Human Rights in the case of HL v United Kingdom (Application no. 45508/99, issued on 5 October 2004). He needed further time to examine its possible impact. I am indebted to Mr Frank Irvine, another of that specialist group of practitioners to whom I have previously referred, who had drawn the just-published decision of the ECHR to my attention in another recent case with similar considerations.
It is worth mentioning that the provisions of section 57(6) relating to interim powers, whatever the basis for their enactment in that form, create real difficulties in practice. It is provided, simply, that the appointment of an interim guardian shall cease to have effect on the appointment of a guardian under section 58 (which stage had not then been reached); or at the end of the period of 3 months from the date of the appointment.
As I have said, that period of 3 months has elapsed in a number of cases over which I have presided. It is not clear to me why the time is so restricted, and no mechanism is provided for renewal of it. There is, e.g. no statutory provision entitling the Court to renew an interim award on cause shown. Instead, the Court has to be convened and an interim award made of new, just on or before the expiry of the original one. This is needlessly bureaucratic and administratively inconvenient. Instead of being able to pronounce one interlocutor at the outset granting interim powers and stating that they subsist until recalled by the Court, it is necessary, in the circumstances which I have described, and which pertained in this case, to prepare a fresh order narrating in full all of those powers which are now being granted of new. These are often lengthy, complicated and detailed.
(I may explain that it is not administratively possible to pronounce a short order simply granting, of new, the powers contained in a previous order whose date would be specified and without the need to repeat them at length, for the reason that an interlocutor of this sort requires to be sent to the Office of the Public Guardian, who issues a certificate to the interim guardian based on the terms of the interlocutor and which is the guardian's authority to act, requiring production to all interested parties. In fact, what is issued by the OPG is a laminated copy of the interlocutor itself, and so this document must be absolutely clear and precise in its terms - reference to previous interlocutors would not do).
If the Act were to provide; e.g. that the appointment of an interim guardian subsisted until the appointment of a guardian, or until it was otherwise recalled by the Court, this problem would not exist.
In any event, the case was continued until 7 December 2004 for submissions on the granting of the application.
The Submissions
The Applicant
I was reminded of the principles set out in section 1, and which I have already summarised. The basic submission was that if the order was not granted, there would be a legal vacuum, in that there was no legal power authorising her residence in her present placement. She is an incapable adult, but no legal steps have been taken to remove her own powers of decision making, and no one else has them with a view to arranging her daily living.
With regard to the power to decide where she lives, it was argued that no one has in fact made a decision to remove her from her own home on any legal basis, yet although she lived there for 30 years, she no longer had the capacity to alter that situation because of her current lack of capacity (which was brought on by a stroke). The decision therefore for her to live at Quayside Nursing Home has been taken without any legal basis, and that is undesirable. There is no contract regulating her residence signed by anyone with authority to do so, and in fact no contractual right on the part of the Home to demand payment for her residence (she is self-funding). Albeit there may be quasi-contractual duties, there remains a gap.
Someone has to decide to pay the fees, and since it is agreed by all that she should stay there, the Applicant has being paying the fees, but only on the basis of her welfare, voluntarily, and with no legal authority.
The continuation of such an informal arrangement was, it was said, a breach of her human rights under Article 6 of the ECHR. Mr Adrian Ward, the author of the standard textbook on Adult Incapacity (1st Ed. 2003) states, at pp 20/21, "The right to act for oneself and make one's own decisions in mattes of one's own personal welfare......is a fundamental civil right. A determination that one is incapable of acting and deciding, and that someone else should take over, is a matter which one is entitled to have determined by a fair....public hearing by an independent and impartial tribunal established by law..........the imposition of such a determination de facto......breaches Article 6".
The right to act for oneself being fundamental, it should be removed by a lawful tribunal, so that it can be properly regulated. Mr Ward, again, at page 53 (op cit) states that "the exercise de facto of powers such as guardianship powers without legal authority, without any procedure to determine whether and to what extent such powers are needed and upon whom they should properly be conferred, and without the attendant regime of supervision and accountability, is by far the greatest restriction on an adult's freedom, and will often be wrongful and a contravention of ECHR Article 6".
In so far as it can be ascertained, the adult's view is that she should now stay where she is, and to that extent, she can be described as compliant, but she is also incapable, and the situation of the incapable but compliant adult is precisely what was examined by the ECHR in the recent case of HL v United Kingdom (supra).
In that case, the Applicant alleged that he had been "detained" in a psychiatric institution as an "informal patient" in violation of Article 5 §1 of the Convention, and that the procedures available to him for a review of the legality of his detention did not satisfy the requirements of Article 5 § 4. He was autistic and lacked the capacity to consent or object to medical treatment. For over 30 years he had been cared for in an NHS Trust Hospital, but in 1994, he was discharged on a trial basis to paid carers till 1997. He was not formally discharged and the Hospital remained responsible for his care and treatment. In July 1997, he had had an episode of extreme agitation and was admitted to an A & E Department of a hospital. He was assessed by a consultant psychiatrist as being in need of in-patient treatment and was transferred to the Intensive Behavioural Unit. It was decided that his best interests required admission as an in-patient. He was recorded as making no attempt to leave. He was not committed under the provisions of the (English) Mental Health Act, it being concluded that that was not necessary as he was "compliant and did not resist admission". He was admitted as an "informal" patient. If he had resisted admission, he would have been detained under the Mental Health Act.
In September 1997, an application was made on his behalf for Judicial review of the hospital's decision to admit him in July 1997. The High Court refused this on the basis that there remained a common law jurisdiction in respect of informal patients. Since he had not been detained, but informally admitted, the common law principle of necessity had been satisfied. This decision was overturned in the Court of Appeal in December 1997. Lord Woolf MR delivered the principal judgement, and noted that the question of detention did not depend on the presence or absence of consent - it was an objective fact. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so.
He also found that the right to detain a patient for treatment of mental disorder was to be found only in the Mental Health Act and informal admission applied only if the patient had the capacity to consent and did consent. His "detention" was ruled unlawful.
In June 1998, The House of Lords heard an appeal from that judgement, unanimously allowing the appeal, and restoring the original decision. On an interpretation of the English Act, it was held that the preservation of informal admissions applied to patients who consented as well as compliant but incapable patients. They invoked the common law doctrine of necessity, ruling that the steps taken were in his best interests and were justified by necessity in so far as they might otherwise have constituted an invasion of his civil rights.
Lord Steyn, although also upholding the appeal, recognised that in doing so, patients who were compliant and incapacitated were left without the safeguards and protections enshrined in the Mental Health Act, something which would be "an indefensible gap". What actually happened following the decision of the Court of Appeal was that the patient was immediately ordered to be formally detained under the Mental Health Act, and he remained subject to that order until he was formally discharged in December 1997.
Throughout the 1990's, legislation was being contemplated in England and Scotland in the area of decision-making on behalf of those adults who had lost capacity to manage their own affairs. The Law Commission Report on Mental Incapacity (1995 Law Com No 231) recommends the use of the least restrictive option test (in the same way as did the Scottish Law Commission Report on Incapable Adults (1995 Scot Law Com No 151), that test finding its way into section 1 of the Act of 2000), Although at the time of the issuing of the opinion of the ECHR in August 2004, Parliament had not yet passed legislation affecting England, there was before it a Bill on Mental Capacity which also incorporates the least restrictive test.
The UK Government submitted to the ECHR that a finding that the applicant in that case was detained during the period of July to October 1997 when he was an informal patient in a hospital, would mean that the case of incapacitated but compliant persons elsewhere (even in a private home or nursing home) would be considered detention, a conclusion which would have onerous legal and other implications for such patients and for any person or organisation having responsibility for their care and welfare. The UK Government also relied on the case of HM v Switzerland (No 39187/98 §48 ECHR 2002-II), (and I will return to that case later).
The applicant in his submissions had ridiculed the notion that albeit an informal patient, he was in any way free to leave, and distinguished the case of HM (supra).
In its assessment of the submissions, the ECHR pointed out that the criteria for assessing the English domestic criteria and the Convention concept of "deprivation of liberty" were different (para 90). With regard to the issue of compliance by the patient, the ECHR held that it could not accept as determinative the fact that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to admission.
The Court stated, "The Court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention.........especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action". The Court ruled that the applicant was in no sense free to leave. It ruled that the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention.
Further, on the question of the lawfulness of his detention and the issue of protection against arbitrary detention, the ECHR noted that all of the judges in the House of Lords had opined that the detention of the applicant was justified by the (English) common law doctrine of necessity. The applicant once again highlighted the issue of "compliance", and that there were not sufficient safeguards against arbitrary or mistaken detention. The Court held (para 115) that the essential objective of Article 5 §1 was to prevent individuals being deprived of their liberty in an arbitrary fashion, and that there must exist in domestic law adequate legal protections and fair and proper procedures.
The Court held that this element of avoiding arbitrariness had not been satisfied, and noted the significant contrast between the extensive framework of rules applying under the Mental Health and the lack of any fixed rules in the4 situation which pertained in his case (paras 119-120). They highlighted the lack of formalised admission procedures, there was no indication of the purpose of or time limit to admission, and no nominated representative who could make objections or representations on his behalf. This accordingly also was a breach of Article 5 § 1.
In the present case, the Applicant's solicitor, founding on the case of HL (supra) submitted that granting the order sought with welfare powers was consistent with the first and second principles of section !, and was supported by the primary care, whose views of course have to be taken (see page 6 of the MHO Report), and by her brother John McDougall.
With regard to power 2, access to documents, it was submitted that this raised points under Article 8 of the convention, with regard to private information, which ought to be regulated, in order to prevent improper exercise.
With regard to power 3, medical treatment, at the moment medication was given daily, and the primary carer owes a duty of care, but is it actually being administered without actual consent (she is, once again, incapable but compliant).
I am only allowed to grant an application if satisfied that the adult is incapable, and is likely to continue so (which she is) (section 58(1)(a)), and if no other means under the Act would enable her personal welfare to be safeguarded or promoted (section 58(1)(b)). Although the provisions of Part 5 of the Act allow medical practitioner to issue certificates in certain circumstances, that would be no more than is sought here by the Applicant. In fact no application has been made by any medical practitioner, and if this power is not granted, it is clear that medication will continue to be administered, informally, a full year after the incapacity arose.
With regard to he character of the Applicant, submissions were made which I need not repeat in detail because they are accepted as being accurate. He is a schoolmaster, who sees it as his filial duty to take this step in order best to care for the adult. He is dutiful and in regular contact with her, he is aware of the responsibilities involved, there would be no conflict of interest or undue concentration of power, and no adverse effects on the interests of the adult.
Safeguarder
He made it plain immediately that he accepted the Applicant's suitability, as a person of education and integrity and with a genuine interest in the adult's welfare. He supported the proposed financial powers, and thought that these could deal with the suggested lack of contractual obligation difficulty. He did not think that there should be a problem in sustaining appropriate arrangements with BUPA, who run the home.
He argued that the adult was in fact moved to the Home clearly because it was thought appropriate, and the Applicant agreed. No power to do so was sought at that time. Perhaps that reflected the reality that she was at one point willing, though that has changed. She is well settled and makes no attempt to leave. She now sees it as her home and gets on well with other residents.
The current arrangements for her care work well and are supported by the independent assessment. The Applicant has informal access to all necessary documents, and with regard to medical treatment, there is a clear course prescribed in Part 5 of the Act regarding intervention which may be necessary. There is apparently no General Practitioner registration and the point was made that there are possible ethical considerations in a guardian possibly intervening in that decision to administer or withhold medication. ( It has to be pointed out though that there is a power to go to the Court of Session in the circumstances specified in section 50 of the Act). If, it was said, a doctor could intervene as allowed in the Act, where was the benefit in having a close relative having the power to consent or not ? Any such power should be sparingly used.
It was said that there was no benefit in giving the Applicant the power to decide where she should live since she was settled where she was and there is no immediate prospect of her being moved. If this situation arose, the Applicant can always return to the court. (I will comment later on the suggestion of the possible piecemeal approach to welfare). The submission was that the benefit sought on behalf of the adult could be obtained without the intervention sought.
With regard to documents, it was said that the Applicant sought access to documents which others had, which was different from controlling her mail, and if he already had access to that, then the minimum intervention principle applied again. Since neither the MHO nor the independent social worker thought that the welfare powers were necessary, the Safeguarder could not conclude that they were. He did however draw attention to the Discussion Paper published by the Mental Welfare Commission for Scotland in August 2004 (" Authorising significant intervention for adults who lack capacity and suggested that the case of HM v Switzerland (supra) which is referred to there is more pertinent than the recent one of HL (supra).
Resolution
I should pay some attention to the discussion paper I have just mentioned. As is stated in the Foreword, this is meant explicitly to be a discussion paper pulling together the differing views on the subject. It is therefore slightly misleading to refer to it as "guidance" as the independent social worker did, I am sure unintentionally, in his report. In Part 1, page 3, it is stated that there is genuine disagreement amongst legal experts as to the appropriateness of seeking a Part 6 order in every case.
It is recognised that there may be a difference in philosophy between those who are concerned to see practical benefits from use of the Act, and those more concerned with human rights and legal protections for vulnerable people. On the same page, para 5, it is stated that it is generally agreed that while informal steps can be taken to protect a person's interests, this should not include taking unofficial guardianship powers, which would deprive the adult of safeguards. The author suggests that there is room for discussion about what constitutes unofficial guardianship, and that facilitating the move to residential care when the adult does not object may not be an unofficial exercise of guardianship powers if no degree of control or compulsion is used (back, again, to the issue of the incapable but compliant adult).
It is worth remembering how she came to be where she is: she was admitted to acute medical and rehabilitative care and her needs were assessed as being nursing home care. It was thought that she be in a locked ward because of concerns she may wander onto the street to her risk. She apparently agreed to go into the Home but then expressed a wish to return to her own house, though all agree that that would not be possible. She suffers from brain damage, is unable to live independently, and is now unable to express past or present wishes or feelings.
Para 6 of the discussion paper, headed "Compliant person needs protection" states that all would agree that just because a person does not appear to object to a proposed intervention is no reason to deprive him/her of the safeguards which the Act provides, but that there might be other ways of protecting the person, and para 10 says in stark terms that there is concern that failure to use Part 6 could be a breach of the adult's rights under Articles 5, 6 and 8 of the Convention.
Developing this point further, at page 12, the author quotes Mr Ward again at para 4.9 of his book, (op cit) to the effect that neither section 1(2) of the Act nor any other provision of it sanctions the imposition de facto of intervention of a kind which could have been obtained under the Act, without following the Act's procedures, upon an adult who appears to be compliant but cannot validly consent. His view is that to do so could breach the adult's rights under the Convention.
Finally, under reference to the discussion paper, the author notes the relevant ECHR case law, and highlights the case of HM v Switzerland (supra) where a vulnerable but mentally capable woman was placed in a nursing home against her will. In that case the Court concluded that this was a responsible measure taken in her own interests and did not breach her Article 5 rights. It concludes by referring to the case of R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 3 WLR 107, which is the report of the decision in the House of Lords of the same case cited as HL v UK in the ECHR. The author records the decision of the House, albeit noting Lord Steyn's observations previously highlighted, and observes that since that case was under appeal to the ECHR, it would have to wait until the decision to know whether an adult held in a locked facility in Scotland in the absence of consent or an appropriate order could claim a breach of Article 5.
We do now know the outcome of that case. Not only did the decision go against the arguments of the UK Government, its effects are indeed potentially as far-reaching as they were imagined to be by counsel for the UK Government and as he posited in argument. The Government had relied on the previous case of HM (supra) but the Court distinguished that (at para 93) on the basis that it was not established that HM was legally incapable of expressing a view on her position, she had often stated that she was willing to enter the nursing home, and soon agreed to stay. It was also an open institution which encouraged outside contact, and the conclusion was justified that she was not detained there (remembering that this concept must be looked at from the standpoint of the jurisprudence of the Convention, not on national law).
In other words, where the adult is compliant with the regime, but is legally incapable of consenting to or disagreeing with it, then that person is deprived of his or her liberty in breach of Article 5 of the Convention, and that step should not be taken without express statutory warrant governing it. That is precisely what happened in the case of HL (supra) - when the Court of Appeal ruled in his favour, steps were taken immediately to have him committed under the Mental Health Act,
In the present case, the appropriate statutory intervention is a guardianship order under Part 6 of the Act. I believe it will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.
In the course of argument, I was reminded, politely as always, by the Safeguarder that I have no power to declare an Act of the Scottish Parliament, or any provision thereof, to be not compatible with the Convention. We puisne judges of the inferior courts do not indeed have that power, which is reserved to judges of the Court of Session, but I do not believe that that is in fact what I am saying. Strictly speaking, the decision in HL (supra) does not overrule the decision of the House of Lords in the same case, but I have a duty to take decisions affecting the rights of individuals who come before the courts in such a way as is compatible with the provisions of the Convention.
I believe that the effect of my ruling in this case will be that in every case where a court is dealing with an adult who is incapable but compliant, the least restrictive option will be the granting of a guardianship order under the Act (assuming of course that all the other statutory requirements are satisfied), for that way only will the necessary safeguards and statutory and regulatory framework to protect the adult (and the guardian), come into play. I am persuaded that the various observations quoted from Mr Ward's book (op cit) are correct statements of the effect of the Convention in this area of the law. That does not mean that the Act is not compatible with the Convention, it just means that in every case of the incapable but compliant adult, the least restrictive option will be one which grants statutory powers of guardianship. I appreciate that that may have implications in practice.
In the present case, I accept therefore the powerful submissions by the Applicant's solicitor that there is presently a legal vacuum, and that if I did not grant the order sought, there would remain one. So, is it justified ? I accept his submissions which have already been set out.
For the reasons stated, I am satisfied that the intervention will benefit the adult, and that that benefit cannot reasonably be achieved without it. I believe that granting the powers sought within the formal framework of guardianship is the least restrictive option. I have taken account of the wishes, so far as they can be expressed, of the adult, the nearest relatives, the primary carer, and the Safeguarder. I accept the proposition that the guardian, in order properly to order the affairs of the adult, should have access to such information as he seeks, and that in order to regulate the position of authorising medication, he should have the power he seeks with regard to medical treatment.
I believe that no other procedure would be appropriate. I do not accept that it would be acceptable for medical intervention to be dealt with ad hoc. It is frequently stated in applications under this Act that repeat applications can be made if necessary, but the cost and inconvenience of that cannot be understated. On page 10 of the MWC discussion paper, reference is made to the expense which is involved in bringing applications before the court. Figures of between £2000 and £4000 are mentioned. I have certainly presided over cases where the costs will be many times those figures. I do not believe that adopting a general piecemeal approach represents good management, or proper use of an adult's often modest resources.
I accept that the individual Applicant here satisfies all the criteria listed in section 58, and that he is a suitable person to be appointed guardian. I am satisfied, for the reasons stated, that no other means provided by or under this Act would be sufficient to enable this adult's interests in her property, financial affairs and welfare to be safeguarded and promoted.
I shall grant the order sought. I have issued, in accordance with the practice of, and the requirements of, the OPG, a separate interlocutor appointing the Applicant to be guardian of the adult, with the powers he sought, both in regard to welfare and financial matters. I have already explained the practical considerations for proceeding in that way.
Finally, I am indebted to Mr Hutcheson, solicitor for the Applicant, and Mr Woolfson, the safeguarder, for the way in which they discharged their respective responsibilities in this case, in the interests of presenting and understanding matters of fundamental importance, and not just to the adult whose interests are involved here.