Sheriff Appeal Court grants order requiring schizophrenic man with kidney disease to allow dialysis

The appellants, RM and SB, were the appointed joint guardians of PKM, a 47-year-old man with polycystic kidney disease who also suffered from paranoid schizophrenia. An order was sought under section 70(1) of the Adults with Incapacity (Scotland) Act 2000, which was originally opposed by Greater Glasgow Health Board.

The appeal was heard by Sheriffs Principal Donald Murray and Derek Pyle and Appeal Sheriff Norman McFadyen. The appellants were represented by Leighton, advocate, and the respondent by P Reid, advocate.

Issue of capacity

The appellants had originally sought two orders from the sheriff under the 2000 Act, but on appeal sought to amend their crave to a single order requiring their brother to behave in a manner that would allow kidney dialysis treatment to occur. The primary concern of the respondent was that the original orders sought would trespass upon matters which were for the clinical judgment of the medical team, given that the treatment would last for the rest of PKM’s life.

The appellants’ view was that while it was accepted that their brother did not want the treatment at the present moment, they considered, based upon his past behaviour and attitudes, that he might change his mind if the order in its amended form was granted. The Health Board’s position on the amended order was that, provided the court was satisfied with its terms, it would not oppose it.

It was noted that the appeal raised a point of law concerning the effect of section 67(1) of the 2000 Act, under which an incapacitated adult has no capacity to enter into any transaction in relation to matters within their guardian’s scope of authority, with the caveat that nothing in the subsection affected their capacity in relation to other matters. The sheriff took the view that the word “transaction” could not be taken to include consent to medical treatment, which a psychiatric report prepared in August 2021 concluded that PKM had the capacity to give.

Counsel for the appellants submitted that on a proper reading of this section, medical opinion on PKM’s present capacity was irrelevant so long as the guardians’ appointment continued. To allow the issue of capacity to be raised at the point of any decision by a guardian would undermine the underlying purpose of the Act. In response, counsel for the respondent submitted that there was a tension between section 67(1) and the requirement under section 1 of the Act to take the adult’s views into account, especially given the very wide powers given to the guardians in this particular case.

Wishes and feelings

Given the potentially terminal nature of PKM’s condition, a verbal decision was issued by the court, with a decision note later provided by Sheriff Principal Pyle. In the note, the sheriff began: “In our opinion, the term ‘transaction’ does include consent to medical treatment. We reach that view for two reasons. The first is, as counsel for the Health Board submitted, that the terms of sections 67(2) and 67(3) point to section 67(1) being given the broad definition which would include any form of guardianship order.”

He continued: “The second is the general nature of the 2000 Act, which is to protect vulnerable adults who in most, if not all, cases will have complex medical needs which will require ongoing medical supervision and treatment. It would make no sense, therefore, for the scope of the guardian’s powers to be restricted such that medical treatments should not be included within their responsibilities.”

Addressing whether there was a tension between sections 1 and 67, he added: “It would be inevitable that the extent to which the adult would be able to express his present wishes and feelings and the extent to which they should be taken into account would depend upon the extent to which the medical practitioner considered that the adult’s expressions of wishes and feelings were genuinely held and were separate from his general medical condition of schizophrenia.”

He went on to say: “The issue for the practitioner was the ability, rather than capacity, of the adult properly and accurately to express his wishes and feelings. Looked at in that way, we do not see any potential conflict between section 67(1) and section 1(4).”

Sheriff Principal Pyle concluded: “It may well be that any perceived tension between section 67(1) and section 1 will surface in specific situations and will have to be evaluated on the facts of the individual case. We should therefore emphasise that our opinion is in the context of an unusual, perhaps unique, case. It should not be seen as being of general application save that regard should be had to the whole circumstances and the weight to be given to the present and past wishes and feelings of the adult.”

For these reasons, the appeal was allowed, and the appellants’ amended order granted.