Judges reject sister’s appeal against appointment of guardian over ‘bias’ claim against mental health officer

The Inner House of the Court of Session refused the appeal after rejecting the appellant’s argument that the mental health officer who prepared a report on her suitability as guardian was “not institutionally independent” from the respondent Aberdeenshire Council.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Drummond Young, heard that in January 2016 the sheriff at Aberdeen made a guardianship order in respect of the appellant JM’s brother, JC, for a period of three years.

Brother’s ‘best interests’

The sheriff decided that it was in JC’s “best interests” to make an order appointing the chief social work officer (CSWO) of Aberdeenshire Council as his guardian, and to refuse the appellant’s request that she herself should be appointed.

Following the making of the order, an appeal at the instance of the appellant was refused by the Sheriff Appeal Court, but she was given leave by the Court of Session to argue that the appeal sheriffs erred in relation to an alleged “conflict of interest” said to arise from the sheriff’s decision to obtain a report on the appellant’s suitability as guardian from the mental health officer (MHO) who had previously submitted a report on the general appropriateness of the council’s application.

Counsel for the appellant Ian Sharpe submitted that the MHO, being employed by the local authority was “not institutionally independent” from the counsel, or from the CSWO as both were employed by the same local authority and worked in the same department.

The terms of the original report suggested that the MHO had already formed certain “adverse views” in relation to the appellant.

It was submitted that when the only candidate for appointment was the CSWO there could be no objection to the provision of a report from the MHO, but where there was a subsequent competition for appointment the local authority should obtain a report from an MHO employed by another authority.

‘Unfair procedure’

Reference was made to Article 6 of the European Convention on Human Rights (ECHR), to the effect that the procedure adopted was not fair to the appellant and “tainted the whole procedure”.

Under reference to Article 5 of ECHR, it was submitted that a guardian’s power to choose where the ward should live could be construed as depriving him of his liberty, and the procedure adopted gave “insufficient protection” of the rights of the individual who was the subject of the order.

Counsel for the respondent David Leighton submitted that the procedure followed was one which is provided for in statute, in terms of sections 57-59 of the Adults With Incapacity (Scotland) Act 2000.

The sheriff ex proprio motu had ordered a report from the MHO on the suitability of the appellant as guardian of the ward, which required to be prepared by the MHO employed by the respondents, and there was no statutory provision for a different MHO to prepare a report.

In any event, the MHO can be expected to act in a manner “independent from the local authority” and the sheriff reached a decision on the appellant’s suitability on the basis of the “totality of the evidence” before him, not only the report of the MHO.

‘Incomplete understanding’ of the law

Refusing the appeal, the judges said they were unable to accept any of the arguments advanced for the appellant.

Delivering the opinion of the court, the Lord Justice Clerk said: “We note that the appellant’s submission that when the only candidate for appointment is the CSWO there can be no objection to a report from the MHO makes no sense, and betrays an incomplete understanding of the structure of the Act: such a report is never required for the CSWO.

“In our view no conflict of interest could arise between the MHO and CSWO merely on account of the fact that they were employed by the same local authority. Moreover, the fact that the MHO might have formed certain broad views in relation to the appellant when preparing a report on the general appropriateness of the order sought, would not prevent the MHO from making a separate assessment of the suitability of the appellant as a potential guardian in a subsequent report.

“Neither the MHO nor the CSWO has an ‘interest’ in who is appointed as guardian, and the only interest of the local authority is to secure the welfare of those within its locality who may be vulnerable through being unable to manage their own affairs. Their only interest is to discharge the duties entrusted to them by Parliament.

“The argument fails to recognise that the local authority, the MHO and the CSWO have certain functions and obligations imposed on them by the statutory scheme, that their actions were all taken in fulfilment of those functions or at the request of the Court, and that in the exercise of those functions they are subject to supervision of the Mental Welfare Commission, and ultimately, the Court.

“Both the MHO and the CSWO have professional obligations requiring them to act in the best interests of those requiring their services. They are both bound to comply with the Scottish Social Services Council Code of Practice for Social Service Workers.

“The Sheriff Appeal Court were entirely entitled to conclude that the MHO could be expected to act in a manner independent from the local authority which seeks the appointment.”

The court also rejected Article 6 arguments relating to alleged procedural unfairness and described the arguments relating to Article 5 as “untenable”.

Lady Dorrian added: “No question under Article 5 arises. Even if it had done, the appellant’s arguments ignore the structure of the Act, the safeguards built into it, in the form of the supervisory functions given to the public guardian and the local authority, overseen in the case of the latter by the Mental Welfare Commission.

“It ignores the fact that a guardianship order may only be made by a judicial officer, and only when satisfied in respect of stringent statutory requirements, which require to be interpreted according to the principles of minimal intervention in the best interests of the adult, taking account as far as possible his or her wishes, all as specified in section 1 of the Act. There is no merit in any aspect of this appeal, which will be refused.”