AW148/09
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Opinion of
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John A Baird Esq., Advocate
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Sheriff of Glasgow
and Strathkelvin at Glasgow
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In the case of
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Minute for Directions by Dr A B
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Introduction
- This is an
application brought by the Consultant Geriatrician in charge of the care
of an adult with incapacity who is a long stay patient in an acute NHS
hospital, asking for directions in terms of section 3(3) of the Adults
with Incapacity (Scotland) Act 2000. That provision states that "On an
application by any person (including the adult himself) claiming an
interest in the property, financial affairs or personal welfare of an
adult, the sheriff may give such directions to any person exercising - (a)
functions conferred by this Act; or (b) functions of a like nature
conferred by the law of any country, as to the exercise of those functions
and the taking of decisions or action in relation to the adult as appear
to him to be appropriate."
- That
subsection appears as part of a section (section 3 aforesaid) whose
heading is "Powers of sheriff" but my reading of the section is that
subsection 3 is a "stand alone" provision which is not dependent on any of
the other subsections in the section for proper understanding of its
meaning or scope.
- Accordingly,
and ignoring consideration of any foreign elements for present purposes,
it is a provision which requires firstly that there is to be in existence
a person who is already exercising functions conferred by the Act. Again
for present purposes, that includes a person appointed by an adult to act
in terms of a power of attorney granted in accordance with the provisions
of Part 2 of the Act (principally sections 15 and 16), and a person
authorised by the court to act in terms of an intervention order or a
guardianship order in accordance with the provisions of Part 6 of the Act
(principally sections 53 and 57).
- Next, the
application can be brought by "any person...claiming an interest in the
property, financial affairs or personal welfare of an adult", by which is
meant an adult with incapacity as defined in the Act.
- Finally,
assuming the applicant is such a person, and assuming there is already a
person exercising functions conferred by the Act, the court is empowered
to give directions to the person who is already exercising such functions
and if it decides to do so, the court is given wide general discretion in
the matter, constrained only by the general principles which govern any
decision to intervene and which are set out in section 1 of the Act. Again
for present purposes, the guiding principle can be summarised by stating
that the court should not intervene unless satisfied that the intervention
will benefit the adult and that such benefit cannot be reasonably achieved
without the intervention (section 1(2)).
The
Circumstances of this Case
The Existing
Guardian
- On 16
September 2009 an application was processed at this court involving an
adult, then aged 77, and who was then designed as living at her own home
in Glasgow. The applicant was her daughter and on that date, I granted the
application for guardianship in her favour, granting her powers relating
to the welfare and to the property and financial affairs of her mother.
The supporting medical information was to the effect that the adult was then
an adult with incapacity as defined. In December 2012, the guardian
presented a Minute seeking extension of the powers previously granted and
on 30 January 2013, I again granted that application. The adult remained
then, and still is, an adult with incapacity as defined in the Act.
- The additional
welfare powers granted in January 2013 were; "8. To consent or withhold
consent to medical and dental treatment or procedure or therapy of
whatever nature; 9. To enter into a contract with a care provider to be
decided by the Guardian for the long term care of the Adult at a location
to be decided by the Guardian should the need arise; 10. To sign any
ancillary deed or other document necessary to promote the personal welfare
of the Adult and ensure that the same is suitably safeguarded." It is also
important to note that in this Minute, the adult was now designed as
"formerly residing" at [her 2009 address] "and currently c/o [an acute NHS
hospital in the area of Greater Glasgow and Clyde Health Board]".
- There is
therefore, plainly, a person, the appointed guardian, who is exercising
functions conferred by the Act of 2000. Further, it seems equally plain
that the purpose of the additional powers sought and granted was to enable
the guardian to make arrangements for the long term care of her mother,
away from her own home, and for her to be accommodated in suitable
nursing or residential accommodation. In fact, the minute lodged by the
guardian which formed the basis of her application for the additional
powers, and which I granted on 30 January 2013, states in terms that the
guardian was advised on 29 November 2012 that her mother could not return
home and that it was (in January 2013) proposed to move the adult to the
very Care Home now mentioned in the present minute, but that the terms of
the previous powers of guardianship did not permit the guardian to enter
into a contract with a care provider. Accordingly, the guardian sought
those specific additional powers herself in order to effect the transfer
which she has since not done and which the present minute seeks to have
her directed to do.
The Applicant
in the Present Minute
- As already
indicated, the qualification for bringing an application for directions is
simply that the applicant must claim an interest in, inter alia,
the....personal welfare of an adult (with incapacity). When the minute was
presented, on 13 August 2013, the adult was a patient in the medical wards
of an acute NHS hospital. The minuter (the applicant for directions) was a
Consultant Geriatrician at that hospital and the consultant in charge of
the medical care of the adult. On that basis, the minuter averred that he
had an interest in the personal welfare of the adult.
- I agree with
that assertion. The category of persons who may have an interest as
defined is deliberately left very wide, and it seems to me to be
unarguable that the consultant in charge of the care of a patient is not
someone with an interest in that person's personal welfare, particularly
in a situation where the person is unable, as here, to take relevant
decisions herself as to her personal welfare.
The
Directions Sought
- The minuter
asked the court to answer a question; "In order to secure the Adult's
welfare and best interests is it necessary for her to reside in a facility
which provides NHS continuing care?", and if the answer to that was in the
affirmative, the minuter asked the court to make an order directing the
guardian to exercise her existing powers by directing the guardian to
consent to the Adult residing at [a specified Care Home], and to direct
her to convey or make arrangements for the conveyance of the Adult to that
Care Home, and, since the nominated place was operated as a continuing NHS
facility by Greater Glasgow Health Board (GGHB), to direct the guardian to
enter into such a contract with GGHB as may be necessary to secure the
adult's residence there, and to direct that the guardian consent to the
adult receiving nursing and other medical care there, and to direct the
guardian to sign any papers which may be necessary to secure the adult's
residence there.
- Pausing there,
it may be thought that it is not generally appropriate to ask the court to
answer a specific question, but in the circumstances here, if the court
were to give any such directions, it implies that the court was satisfied
that the question posed (at least in so far as it refers to "benefit",
since that, and not "best interests" is the statutory test) was answered
in the affirmative. Further, there is a real question as to whether, in
giving directions of the kind which the court is empowered to do by
section 3(3), a court can direct a person to consent to something.
A court can clearly direct a person to do something or refrain
from doing something.
The Reason
for Asking for Directions
- The
circumstances disclose an unhappy state of affairs in which the adult has
now spent prolonged periods of time in the same acute NHS hospital. Her
last admission there had been on 19 August 2012 and she had remained there
ever since. Indeed, on the date of the hearing of this minute, 19
September 2013, she was still a patient there.
- In addition
to her mental health difficulties, the minute narrated that the adult
unfortunately suffers from a wide range of serious medical conditions
which affect her physical health. These include cerebrovascular disease
with right sided hemiparesis and dysphasia, ischaemic heart disease,
recurrent urinary tract infections, type 2 diabetes on insulin, previous
colonic cancer with colostomy, and epilepsy. She is completely dependent
for all tasks of adult daily living and requires a hoist to be moved from
bed to chair. She is now aged 81. She requires assistance with all
personal hygiene and help and encouragement with all meals. She is prone
to dehydration and frequently requires subcutaneous fluids to be
administered.
- In the period
from January 2009 until her last admission in August 2012, she had been
admitted to the same acute hospital on 26 occasions. In the year 2009 she
spent a total of 114 days there, in 2010, 234 days, in 2011, 146 days and
in 2012, 276 days. She has of course spent the whole of 2013 to date
there. That means that she has spent almost exactly 60% of the last 5
calendar years to date as a patient in an acute NHS hospital. A
significant number of the admissions were required on account of poor
diabetic control, dehydration and urinary tract infections. For a short
period (23 August to 17 September 2010) she was in the Care Home which is
now suggested as appropriate for her. It is a continuing NHS care facility
but not of course an acute hospital. All of her admissions to hospital
required processing through Accident and Emergency and then ward
admissions.
- The minute
goes on to record, frankly, that since 2009, the adult has acquired
hospital acquired infections as a result of her frequent and prolonged
stays. The point of having her moved to a continuing NHS facility in the
designated Care Home is that such infections will hopefully be avoided,
but she will still receive the same level of nursing and medical care as
in hospital. It is also suggested as being appropriate because she cannot
any longer be safely cared for in her own home. The proposed course of
action would avoid the constant disruption to her life which has been a
feature of it since 2009, and ensure proper and continuous treatment in an
appropriate environment.
- The minuter
avers that the responsible consultants at the hospital have been
attempting for some time to persuade the guardian to exercise the powers
she has to move the adult to the proposed Care Home, but she refuses to do
so. The adult was certified fit for discharge as long ago as 13 September
2012, but the guardian refused to allow that, citing concerns about
ongoing infection, despite being assured that there was no such problem at
that time. On 26 September 2012, the guardian did agree to allow the adult
to be discharged home but then changed her mind and refused to allow it,
despite having obtained a second opinion from another consultant who
confirmed that the adult was medically fit for discharge and recommended
transfer to a continuing NHS facility, such as the one now proposed. For
some time after that, it is said that the guardian was not contactable. In
November 2012, a case conference was convened by the local authority at
which the guardian attended. The recommendation was for transfer of the
adult to the Care Home now proposed for assessment prior to a move home.
She thereafter acquired other infections and in December 2012 was
transferred to the care of the minuter as the guardian wanted a change of
consultant. Since then she has had other illnesses, including another
hospital acquired infection, but these have been treated and the minuter
has recommended that she be discharged to the present proposed continuing
care facility or another equivalent one, but the guardian refuses to
consent to such.
- The position
adopted by the minuter and his medical colleagues is that the adult
requires continuing medical care , but that that can be provided most
suitably in a continuing care facility such as the one proposed, and most
certainly not in her own home. She does not require to remain a patient in
an acute NHS hospital. Other advantages of the proposed facility are that
residents there have their own rooms which can be furnished with their own
personal possessions, and there are no restrictions on visiting times.
The
Appointment of a Safeguarder
- This was
obviously a case which required input from a safeguarder and in terms of
section 3(4) of the Act I appointed at the same time as warranting the
minute Mr Mark Ralston, solicitor, whom I know to be an extremely
experienced practitioner in this area of law. He duly investigated and
reported and his views as expressed in his report were of very
considerable assistance. In addition to forming his own views, he
arranged for the adult to be examined by an independent Consultant
Geriatrician, and submitted a report by that consultant, who operates in a
different Health Board area, and who had examined all of the relevant
records and examined the adult on 10 September 2013.
- The minuter
had also submitted a medical report on the adult which was before the
court at the date of the hearing. In that report the minuter recorded that
it is his opinion and that of four other colleagues that the adult should
not be discharged from hospital care. Further, he states that the guardian
has been repeatedly advised of this and that she has been advised that the
most appropriate level of care should be in a continuing care NHS ward.
There are only two of those available in the Glasgow area and one is the
one which is proposed in the minute for directions.
- The
independent consultant accepts that some of the medical problems suffered
by the adult are potentially attributable to being in an acute (hospital)
environment. It was his opinion that it would not be in the best interests
of the adult to be discharged home which he considered would be harmful to
her ongoing health and psychological state, that she met the criteria for
NHS long term care, that having worked himself at the very Care Home which
was recommended for her, he could confirm that that environment was
perfectly suited to the ongoing provision of care for the adult, and that
it would be adverse to her best interests for her to be detained any
longer in an acute care environment where she may be at risk of further
hospital acquired infections or complications.
- The
safeguarder quite properly considered whether it was appropriate for the
court to answer a question in the form posed by the minute but also, and
again quite properly, considered whether the court had jurisdiction to
entertain the minute. He came to the view, and I agree with him, that the
terms of section 3(3) do allow the court to entertain the minute and give
directions to the guardian here if thought appropriate. He had
commissioned the report from the independent consultant and founded on the
conclusions thereof and the opinion expressed there that it would be
harmful to the adult for her to be discharged home, and also that she
needed long term NHS care but that it would be adverse to her interests
for her to be detained for that purpose in an acute hospital environment.
The safeguarder discharged his duty to attempt to discover the views of
the adult on the proposal, but found her to be unable properly to
comprehend and assess choices. She appeared generally confused. She did
ask when she was going home and said she wanted to go home but appears
confused as to where her home was or what the concept meant to her, other
than it meant living with her daughter, the guardian.
- He also spoke
to the guardian. He recorded that having given the matter considerable
thought, the guardian had expressed the view that she now accepted that
the point had come for her mother to be admitted to care and that it was
not now realistic for her to return to live at home. She expressed
discontent with the level of care being administered at the hospital where
her mother was, and did not accept that it would benefit the adult to move
to the actual proposed Care Home. She believes that the doctors in charge
of her care wish to place her mother on the "end of life" pathway, whereas
she believes that all of her mother's medical difficulties can continue to
be treated. The proposition that the adult was being or would be placed on
an end of life pathway was not accepted by the minuter. She did say she
would agree to her mother being placed in a suitable care environment with
which she (the guardian) was in agreement, and was making enquiries to
identify one. She seemed to agree that her mother should no longer
require to remain in hospital. Other family members seemed to share the
guardian's views, albeit that seemed to be coupled with the desire for the
adult to return home, something which the guardian herself now thought
unrealistic. It does however seem to be the view of the family that the
adult should no longer require to remain in an acute hospital.
- The
safeguarder concluded that there was no medical need for the adult to
remain in an acute environment. In the circumstances, he identified,
correctly in my view, that the question now posed was where the adult
should be discharged to, since she was fit to be discharged and cannot now
be adequately cared for at home. The Care Home identified and proposed is
one which is still under the overall medical responsibility of consultant
geriatricians at the present hospital. The safeguarder concluded that if
at the date of the hearing no alternative suitable establishment had been
identified by the guardian, the interests of the adult would be best
served by a transfer to the proposed Care Home, at least in the interim.
The Hearing
- At the
hearing on 19 September 2013, the guardian explained that she had
contacted a different Care Home from the one proposed and which she seemed
to favour. However, that one was still under the overall supervision of
the medical staff at the present hospital, so there was no difference
there. She accepted that her mother needed to be in a Care Home
environment which was able to cope with her ongoing physical health
difficulties. The alternative one she mentioned had not assessed the adult
and would need social work intervention, which had not yet happened.
Further, the issue of funding for that place had not even been explored.
It should be emphasised that the issue of funding is not a live one with
regard to the proposed Care Home as that has already been approved, with
there being no cost to the adult or the guardian involved, as I understand
it. The safeguarder had spoken to the minuter on 18 September and the
minuter had confirmed that in his professional view there were only two
suitable and appropriate placements. The one proposed was by far the most
suitable (including its location) and the other one was not the one
just mentioned by the guardian.
Resolution
and Directions
- This was a
novel, but principled, attempt to seek to have the court give directions
in accordance with the provisions of section 3(3) of the Act. For the
reasons already set out, I am satisfied that it is competent for the
minuter to attempt to invoke the powers given to the court by that
provision. There is an adult with incapacity as defined, there is in place
a guardian exercising functions conferred by the Act, and the minuter is a
person with an interest in the personal welfare of the adult. The unhappy
history from 2009 of repeated admissions from home to an acute hospital
has meant that the adult is at constant risk of re-admission to an acute
hospital if she was to go back to her own home. That means that it really
has to be accepted that she can no longer safely be maintained in her own
home. Even the guardian has, albeit reluctantly, accepted that fact. I am
in no doubt that it would not be to the benefit of the adult if she was to
return to her own home.
- On the other
hand I also accept that it is not to her benefit for her to remain as a
long stay patient in an acute NHS hospital. She had been continuously a
patient in such an establishment for a period of 13 months by the date of
the hearing, despite having been medically fit for discharge for some
considerable time. The reason she has not been discharged is that the
guardian has refused to allow her to be transferred to a continuing NHS
facility, and to the proposed one in particular.
- All of the information
before the court is to the effect that the adult needs continuing medical
care. All of the information before the court, including that stated by
the guardian, is that it is not appropriate for the adult to be discharged
home as the appropriate level of care cannot be provided there, and a
discharge home will inevitably result in further and repeated admissions
to an acute hospital. All of the information before the court is that not
only will the adult benefit from transfer to a continuing NHS facility
("benefit" being the statutory test) but also being in, or remaining in,
an acute environment is adverse to her interests on account of the risk to
her of hospital acquired infections.
- The only
remaining issue then is whether what is actually proposed in the minute
would be to the benefit of the adult. What is actually proposed is that
the adult be transferred to a named Care Home which is said by the medical
professionals to be suitable and appropriate for her continuing care. The
only person who does not accept that is the guardian. (I am not ignoring
the stated views of the adult herself, and have taken those into account,
as I am obliged to do, but I have recorded that she has very limited
understanding of what is actually involved and has a stated preference to
go home, which is no longer a practical reality.)
- As at the date
of the Hearing, there was not available for consideration any alternative
proposal. No other facility was then actually available for consideration.
It is not to the benefit of the adult to prolong her stay in an acute
hospital environment any further, it being frankly recognised that she
had, while in extended stays there, suffered from hospital acquired
infections and was at continuing risk of doing so again in the future. In
the circumstances, I was satisfied that it would be to the benefit of the
adult were she to be transferred to a continuing NHS facility. I was
satisfied on the information before the court that the facility actually
proposed was suitable and appropriate and that the adult would benefit
from being resident there.
- The guardian
was unwilling to accept that that would benefit her mother and unwilling
to arrange such a transfer. In that situation, I had to consider whether
it was appropriate for the court to exercise its powers under section 3(3)
of the Act and give her directions which would have the effect, if
implemented, of securing the transfer of her mother to the named facility.
- I do not
consider that it is strictly necessary, even it was appropriate to do so,
to give a formal answer, by way of pronouncing an interlocutor, to the
question posed in the minute. I have accepted, as has the guardian now,
that the adult needs ongoing medical care, that it is appropriate that
that should be provided, not in her own home and not in an acute hospital,
but in a continuing NHS facility, and that the adult would benefit from a
transfer to, and admission to, such a facility for her long term needs.
- I have already
commented on whether I can direct someone to consent to such a proposal,
but since the guardian already has the power to decide where the adult
should reside, and the power to convey her there, and the power to enter
into such contractual or other arrangements as may be necessary to secure
the continued residence by her mother at an appropriate facility, I
consider that I do have the statutory power to direct a guardian who is
unwilling to take such steps that she should do so.
- Accordingly,
at the conclusion of the hearing, I did direct the guardian to make
arrangements forthwith for the conveyance of the adult from the present
hospital where she is a patient to the proposed Care Home named in the
minute, and to co-operate with both of the said institutions in effecting
that transfer, and to secure the necessary care and treatment for the
adult at the said Care Home, and to enter into such contractual or other
arrangements with GGHB as may be necessary to secure the adult's residence
there. I was satisfied that the proposed intervention would benefit the adult
and that that benefit could not reasonably be achieved without the
proposed intervention, as the guardian refuses to take the proposed step
herself.
- I have not
revoked any of the guardian's powers, so it must be that in the future, if
she identifies some alternative facility which is assessed as suitable for
the continuing care of the adult, and if the received wisdom was to the
effect that it would be to the benefit of the adult to be resident in such
an alternative place, then it would remain open to the guardian to effect
such a move. All that this minute seeks to do is to direct the guardian,
who was unwilling to act in the manner proposed, to do so, for the
immediate benefit of the adult, and to secure the removal of the adult
from a place where continuing residence could be adverse to her health to
a place where continuing residence would be to her benefit.
- I have also
not lost sight of the fact that the giving of directions to the guardian
in this case constitutes the making of an order of court, and that a
person who fails to comply with an order of court may be held to be in
breach of it and subject to potential sanctions. I recognise that the
court must therefore have that consideration in mind before taking the
step asked of it here. I did advise the guardian that the order I
pronounced at the conclusion of the hearing on 19 September was an order
of the court and that she was obliged to comply with it, there being
consequences if she did not.
- But lest it be
thought that the ordinary consequences for failing to comply with a court
order may seem severe in the case of a person who had been for years
acting, as here, as the carer for her mother and with her mother's
interests at heart, but who was simply reluctant to recognise the
inevitable, it should be emphasised that the Act itself does provide a
mechanism for dealing with any such refusal to comply, and which may
recognise the sensitivities involved.
- Section
71(1)(a) provides that the sheriff, on an application made to him by an
adult subject to guardianship or by any other person claiming an
interest in the adult's property, financial affairs or personal welfare
[my emphasis] may replace a guardian by an individual or office holder
nominated in the application. The court would have to be satisfied that a
nominated replacement individual is suitable, but can appoint, if the
guardianship order is to relate only to the personal welfare of the adult,
the chief social worker of the local authority (S59(1)(b)). As in the
present case, it is open to a wide range of persons to contemplate the
bringing of such an application, which would then have to be determined on
its merits and in accordance with the general principles of the Act.
- Once again,
the foresight of the drafters of this piece legislation has proved to be
perspicacious and the Act, in its ability to provide solutions even for
difficult problems, and by giving the court the discretion to achieve such
solutions, has proved to be, and continues to prove to be, a model of
clarity and usefulness.
