Court grants ‘guardianship order’ to protect vulnerable adult teenager despite opposition



Sheriff Court
Sheriff Court

A vulnerable adult teenager whose life has been characterised by “chaos, abuse and neglect” has been made the subject of a court order to protect her welfare following an application by a Scottish local authority.

A sheriff found that the 18-year-old, who opposed the application, was “incapable” of making decisions about her personal welfare and that no means other than a guardianship order would be sufficient to enable her interests to be “safeguarded and promoted”.

‘Extreme vulnerability’

Sheriff Janys Scott QC heard that Stuart Easingwood, chief social work officer at Scottish Borders Council, has sought a welfare guardianship order with powers which would have the effect of depriving a vulnerable adult of her liberty in order to protect her against almost inevitable harm should the powers not be granted, in what the sheriff described as an “anxious case”.

The court was told that the young woman “AB” came to the attention of the authorities in August 2018 when she was charged with vandalism and breach of the peace at her mother’s home address.

The offences were remitted to the children’s hearing, which made a compulsory supervision order.

A youth justice social worker, RS, who was appointed to try to work with AB, gave a graphic account of AB’s “extreme vulnerability” and her “inability to protect herself”.

Until March 2019 AB was living in her own tenancy in town X, where was preyed upon by a number of males who used her accommodation to live in and who physically abused her and used her for sex.

But she was incapable of understanding that these men were using her, referring to one as her “partner” and another as her “boyfriend”, while there was at least one other involved with her.

They assaulted her, causing bruises, cigarette burns, cuts and infected wounds, and regularly escorted her to an ATM machine to withdraw her benefits and hand these over.

She was given alcohol and her “partner” administered drugs to her intravenously.

He also prevented her from seeing or contacting RS who was trying to assist her, destroying a phone RS had given her to use in emergencies.

‘Mental disorder’

In March 2019 AB was arrested and remanded in custody after being taken to her mother’s house by one of the men with whom she was associating, in order to steal a television.

Her placement in secure accommodation ceased to have effect on AB attaining the age of 18, in advance of which the local authority made the application for the guardianship order, but interim orders were made as a result of which AB was living in a flat in town Y where she has 24-hour supervision and monitoring.

The court also heard evidence from two psychiatrists, and a mental health officer, who spoke to AB having a borderline learning disability with an IQ of 70, as well as extreme difficulties in communication and social contact which indicated autistic spectrum disorder and complex post-traumatic stress disorder (PTSD), both of which are mental disorders.

However, in an affidavit AB opposed the application and asserted her “right to self-determination”.

She expressed a wish to return to town X to live on her own but to resume her old “friendships” and to consume drugs and alcohol, but there were also signs that her wishes were changing, as she had resumed positive contact with her mother and wanted to live in the same area.

The sheriff found that while AB was capable of making decisions, “she cannot understand the consequences of her decisions”, and the guardianship order was accordingly necessary to ensure her interests in her personal welfare were “safeguarded and promoted”.

The court therefore appointed the chief social work officer at Scottish Borders Council to be guardian to AB for a period of six months, in terms of part 6 of the Adults with Incapacity (Scotland) Act 2000.

‘Guardianship order’

In a written judgment, Sheriff Scott said: “AB cannot be said to suffer from a mental disorder simply because her decisions are ‘imprudent’, but she does have symptoms of complex PTSD, which is a mental disorder. I am not able to discount autism, but the agreed diagnosis of complex PTSD is important because it is a condition that can be addressed.

“There is evidence that AB has a borderline learning disability in that her IQ has been assessed at 70. An IQ of over 69 does not fall to be treated as a mental disorder. I have not therefore treated the learning disability as the primary source of the problem. I have based this judgment on the agreed diagnosis of complex PTSD.

“Looking at the nature of AB’s capacities, she is capable of making decisions and communicating decisions. The problem is that she cannot understand the consequences of her decisions. As a result she is liable to act in ways that expose her to serious risk. In these circumstances I have found that AB suffers from incapacity because she is, at this time, incapable of understanding certain decisions.

“That does not however justify simply overriding her wishes. I have considered carefully the views expressed in her affidavit. She is an adult, not a child, and her desire for self-determination cannot be overruled simply because she is currently suffering from a mental disorder.

“However, her views are not completely settled. She is changing her mind about where she wants to live, now expressing a preference to live near to her mother, rather near to the ‘friends’ in town X.

“In these circumstances it is consistent with the 2000 Act to make an order giving the chief social work officer the power to decide where AB will live and to return her to her place of residence. I am conscious that this is not only contrary to her expressed wishes, but it is also a deprivation of her liberty and an interference with her right to choose her place of residence.”

She added: “In recognition of her rights I propose to grant the order for only six months. This is with a view to keeping to a minimum the period over which she is deprived of her liberty.

“During the period of six months it will be possible to start to address her complex PTSD. It may even be possible to complete the treatment.

“This limited period will allow the court to review the deprivation of her liberty in early course, consistent with the article 5 requirement for a ‘procedure prescribed by law’.”

The guardianship order included the power to decide where AB was to live, the power to return her to her place of residence, and the power to open, read and as appropriate reply to any communications addressed to her, including the power to sign any correspondence on her behalf that related to her welfare.

© Scottish Legal News Ltd 2020



Other judgments by Janys Scott QC