Dunoon woman fails in Sheriff Appeal Court challenge of welfare guardian appointment



Sheriff Appeal Court
Sheriff Appeal Court

The Sheriff Appeal Court has refused an appeal by a 57-year-old woman challenging the appointment by her local authority of a welfare guardian with the power to determine where she could live and where she was allowed to go.

The appellant, JK, argued that the appointment amounted to a deprivation of her liberty. The application, which was supported by her father, was made by Argyll and Bute Council under section 57 of the Adults with Incapacity (Scotland) Act 2000.

The appeal was heard by Sheriff Principal Marysia Lewis, sitting with Appeal Sheriffs Alasdair MacFadyen and Norman McFadyen. The appellant was represented by Leighton, advocate, and the respondent by Blair, advocate.

Distrusted her carers

The appellant, who lived alone, had previously been diagnosed with schizophrenia and delusional disorder and had engaged with the community mental health team in Dunoon since 2013. It was considered by her carers that she would require 24-hour care in order to address her complex needs and ensure her health and welfare, following an unsuccessful trial period of a home care plan.

The appellant disputed that she had a mental disorder and opposed the grant of any powers. She had refused to engage with the care plan and distrusted her carers, who were reluctant to enter the property due to its unhygienic conditions. At one stage she had failed to shower or bathe for almost a year, which she explained as being a consequence of her having an olfactory disorder for which there was no physical basis.

It was considered by the respondents and by supporters of the application that the appellant’s needs would be best met at a specialist facility in Glasgow called The Oaks, where she would be provided with her own secure accommodation and returned to the premises if she left. To facilitate this, the respondents sought the powers to determine where the appellant could live and the power to decide whether she needed supervision in order to go anywhere.

The sheriff who considered the application concluded that the appellant suffered from a serious disorder and that she lacked the cognitive ability to look after her own basic needs. There were no means of safeguarding her personal welfare other than by way of a Guardianship Order. The sheriff also determined that the resulting deprivation of her liberty was compliant with Article 5 of the ECHR as the necessary legal safeguard were provided by the 2000 Act.

It was submitted for the appellant that the sheriff had erred in authorising the deprivation of her liberty. The principle of legality required an explicit or implicit power to be contained in the relevant law, and the language of the relevant parts of the 2000 Act did not meet either criterion.

Unfortunate situation

Delivering the opinion of the court, Sheriff Principal Lewis noted generally: “The proposed care package at the Oaks is a situation to which Article 5 applies. [The powers sought] are contrary to the expressed wishes of the adult. They amount to a deprivation of her liberty and are an interference with her right to choose her place of residence.”

However, she went on to say: “The powers were granted in a specific context namely the safeguarding of the welfare of an adult who lacks capacity and whose living conditions, self-neglect and lack of personal hygiene are potentially life threatening. The decision to grant these powers is in accordance with a line of existing sheriff court decisions.”

Examining the effect of the 2000 Act, she said: “We recognise that section 64 does not contain an explicit power to detain but it seems to us that sections 64(1)(a) and (b) may usefully be deployed to address the very sad and unfortunate situation which has arisen here. In effect a detailed and bespoke care package has been created for the adult to address her specific needs.”

She continued: “We are satisfied, given the factual matrix, that ‘a matter’ or ‘all aspects’ would cover dealing with the welfare issues of transitioning an adult from one form of care and accommodation (eg supported care at home) to another form of care and facility (eg care in secure premises), ensuring that the adult remains within the facility to address her needs, and to return her there should she leave.”

Turning to the power to determine where the appellant could go, Sheriff Principal Lewis said: “The statutory provisions are wide enough to accommodate such a power, subject of course to the section 1 principles. We detect no error in the sheriff’s assessment of the need for this power, and he did not err in considering the interaction between sections 64 and 70.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021



Other judgments by Sheriff Principal Marysia Lewis