Re LC  ScotSC 19/5/05
A sheriff may dispense with intimation, or notification, of an application for Guardianship where such intimation "would be likely to pose a serious risk to the health of the adult". It was held that it was insufficient for the medical practitioners to simply repeat the words which appear in the statute and that concise and articulate reasons should be given in order that the court has proper information on which to form a view.
Thanks to DS (User:Ds) for writing the case summary.
The relevant provision is Rule 184.108.40.206 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, which was introduced by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Adults with Incapacity) 2001.
Application in respect of Mrs LC (AW 38/05 Glasgow Sheriff Court 19 May 2005)
Application in respect of Mrs L C
I have today been presented with a Summary Application for Welfare Guardianship under the Adults with Incapacity (Scotland) Act 2000. The applicants seek to dispense with intimation of the application upon the adult, and have submitted two documents, each signed by a doctor, headed "Medical Recommendation re Dispensation of Intimation upon Adult". The supposed basis for dispensation is contained in a single sentence which states, "I [name of doctor] confirm that intimation of the Application...upon...Mrs LC...would be likely to pose a serious risk to her health and would recommend that such intimation upon the adult be dispensed with".
No further information is given; no factual material is contained which would provide support for the taking of the view expressed; and indeed the document is a pro forma one with no space for the stating of any reason as to why the doctors concerned have formed such a view.
Service of applications under the Act is regulated by the provisions of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, which by virtue of Rule 3.16.4(1)(a) stipulates that service must be made on the adult. Section 11(1) of the Act provides that where apart from the provisions of section 11(1), intimation of any application would be given to an adult "and the court considers" that the intimation "would be likely to pose a serious risk to the health of the adult" the court may direct that intimation shall not be given. Rule 3.16.5 of the Rules quoted above provides that where in any such application two medical certificates are produced stating that intimation to the adult would be likely to pose a serious risk to the health of the adult, the sheriff may direct that such intimation can be dispensed with.
I wish to make two points of general application. Firstly, in a number of cases I have seen, only one medical certificate has been produced, and the requirements of the Rules have therefore not been satisfied. Secondly, and more significantly, I take the view that although the certificates produced in this case, which are similar in terms to medical certificates which have been tendered in others, do state that intimation to the adult would be likely to pose a serious risk to the health of the adult, and therefore comply with the wording of Rule 3.16.5, a direction to dispense with the requirement to intimate to the adult in terms of section 11 can only be done where the court "considers", i.e. is of the view, that intimation would be likely to pose a serious risk to the adult's health.
The requirement to intimate any such proceedings to the adult who is affected by them, and who routinely will as a result of the application be deprived of the right to make decisions of the most basic kind regarding his or her welfare, including the right to decide where to live, is a most important and critical step in the process, and even though I am regularly told that an adult is no longer capable of understanding the documents served or the import of them, it should not be dispensed with unless the court has clear and specific information which will entitle it to come to a view that intimation, by itself, would be likely to pose a serious risk to the adult's health.
In my opinion, in order that the court can properly come to such a view, it is not sufficient for medical practitioners simply to repeat the words which appear in the statute. In my view the ordinary principles of administrative law apply here and such a medical practitioner ought to be able to give a reason for being of that opinion and state that reason concisely and articulately so that the court has proper information on which it can then form a view on the matter.
In one recent case when I sent back the papers asking to be given a reason for the medical practitioners having stated the view they had, to the effect that the mere fact of intimation would be likely to pose a serious risk to health, one of the two practitioners reversed the opinion previously given and withdrew the original certificate.
On a related matter, I regularly see applications for the appointment of individuals as Guardians which contain no averments at all on which a court could be satisfied as to their suitability, including one which sought the appointment of an individual who, it subsequently was revealed, is a solicitor, although no indication to that effect had been given, either in the instance, the body of the application, or in the supporting papers.
I have said before, in other cases under the Act (see e.g. the case of FB Glasgow Sheriff Court 13 May 2005) that since this is a court process, which proceeds upon a method which is familiar to practitioners, then it ought to be a straightforward matter for practitioners to apply their minds to the statute and to the ordinary rules of pleading, and make, in their pleadings, averments on all matters to which the court has to have regard before it can grant an application.