Falkirk sheriff grants renewal of guardianship order over chronically underweight man with Asperger’s Syndrome

About this case:

• Citation:
  [2023] SC FAL 4
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Lugton

Falkirk Council sought a three-year renewal of the order on the basis that the respondent was incapable of making decisions about his health and wellbeing. The adult, D, opposed the renewal of the order on the basis that he did not believe it benefited him.

The case was heard by Sheriff Charles Lugton. Gillian, solicitor, appeared for the applicant and Morgan, advocate, for the respondent.

Did not understand risks

D was first made subject to a Guardianship order in terms of the Adults with Incapacity (Scotland) Act 2000 in September 2017. As a result of his condition, he was incapable of making decisions in connection with his care, diet, weight, health, and participation in social activities. He was described as underweight relative to his height and age with a poor diet. He lived with his father, GM, who had mental health difficulties which prevented him from providing D with consistent support, in a property described as dirty and cluttered, although not to the extent of creating a health hazard.

The specific terms of the order craved by the applicant included the power to determine where the respondent resided, to read and attend to his mail and other communications, and to make any decision in respect of his healthcare, education, travel, and other pastimes. The respondent rejected the suggestion that he would stop engaging with social services if he was not subject to guardianship, however evidence was given by a mental health officer who regularly met with him that he did not accept that his weight was dangerously low.

It was submitted that D patently did not understand the risks of his current weight or other potential risks to him. For example, he had spoken of undertaking a trip to Japan with a friend despite his anxiety about leaving home, and had not considered taking out travel insurance. Without the renewal of the guardianship and the level of intervention it allowed, it would not be possible to manage D’s risks in the same way.

For the respondent it was argued that the existing support package was of limited value, and D would be capable of cooperation with the authorities even without it. While his current living situation was not ideal, it was difficult to see what the benefit would be of granting the power to determine his residence, particularly as D did not wish to move from his current location.

Qualified success

In his decision, Sheriff Lugton said of D’s witness evidence: “I considered D to be a straightforward witness, but ultimately I am not satisfied that I can rely on his evidence that he would continue to engage with his current supports if the guardianship were not to be renewed. At another point in his evidence he said that he did not consider the guardianship to be beneficial to him, which is difficult to reconcile with the idea that he would engage voluntarily in its absence.”

On the effectiveness of continuing his guardianship order, he said: “In my view the existing guardianship benefits D and the order’s renewal would continue to benefit him, as D has limited contact with the outside world and is at risk of becoming socially isolated. This was clear from the evidence of AN, who spoke to the infrequency with which D leaves the house and the limited success of D’s badminton sessions. Similarly, CR gave evidence that D is liable to become anxious when leaving the family home and she spoke to D’s fairly limited engagement with his support package.”

He continued: “It was submitted on D’s behalf that his support package is of limited value because D has never taken up all of the support that he has been offered. Certainly AN and CR both acknowledged that the support package has not proved as successful as had been hoped. Both cited D’s father as an impediment to the support workers’ ability to engage with D. But I do not think it follows that the order has no value - there has been some qualified success in facilitating social interaction.”

Addressing whether the same outcomes could be achieved without a travel condition, Sheriff Lugton said: “An alternative might have been for D to have agreed any future travel plans with the applicant. Unfortunately, I doubt that D is capable of cooperating in this way given that (a) his past conduct suggests otherwise: when the proposed Japanese holiday came to light, D was not prepared to give the social workers details or the identity of the friend with whom he planned to travel; and (b) D seems not to appreciate the risks associated with travel. Accordingly, any possible travel cannot be managed other than by way of an intervention, in my view.”

However, on the issue of residence, he concluded: “The applicant’s agent submitted that the power would allow them to act in the event of an emergency, pointing to CR’s evidence of the issue that had arisen in relation to the property’s smoke alarm. However, she properly conceded that if a situation such as this should arise it would be open to the applicants to make a fresh application for an intervention order. In these circumstances, I conclude that (i) granting the power would not benefit D; and (ii) should the need to move D arise this could reasonably be achieved via an application for an intervention order.”

The sheriff therefore granted renewal of the order with the exception of the power to determine D’s residence.