Sheriff insists on doctors' reasons
20 May 05
Court must have information on which it can reach its own view, in applications dealing with adult incapacity
A sheriff has rejected as inadequate, certificates by two doctors containing the bald statement that service of an application for welfare guardianship on the adult in question would be likely to pose a serious risk to her health.
Sheriff John Baird ruled that in order that the court could properly dispense with intimation to the adult, it was not sufficient for medical practitioners simply to repeat the words which appear in the Adults with Incapacity Act. "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", he commented.
In the present case no factual material had been provided which would provide support for the view expressed; nor was there any space on the form used for giving reasons.
"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", said the sheriff.
He went on to comment that in one recent case when he had sent back the papers asking for the doctors' reasons, one of the two doctors had reversed the opinion previously given and withdrawn the original certificate.
And he observed that he regularly saw applications for the appointment of individuals as guardians which contained no averments at all on which a court could be satisfied as to their suitability. "It ought to be a straightforward matter for practitioners to apply their minds to the statute and to the ordinary rules of pleading", he concluded.
Sheriff Baird's decision can be read at http://www.scotcourts.gov.uk/opinions/AWILC.html .