No conflict of interest in same mental health officer reporting on competing guardian applications, Sheriff Appeal Court rules

The sister of a man with severe learning difficulties has failed in an appeal against a sheriff’s decision to appoint a local authority social worker as welfare guardian to her brother.

The woman complained that the mental health officer who prepared a report which favoured the council’s application should not have prepared a report in respect of her own application, but the Sheriff Appeal Court rejected the appellant’s claim that there was a “conflict of interest”.

Sheriff Principal Derek Pyle, Sheriff Principal Marysia Lewis and Sheriff Nikola Stewart heard the appeal by JM, the sister of JC, who was diagnosed with severe mental retardation and learning disability and requires 24-hour support.

JM challenged the decision of Sheriff Summers at Aberdeen to make a guardianship order under section 58(4) of the Adults with Incapacity (Scotland) Act 2000 appointing the chief social worker of the respondent Aberdeenshire Council to be JC’s guardian.

The sheriff also dismissed the minute of JM for her appointment as JC’s welfare guardian, but she appealed that decision.

The court heard that the respondent’s application, which was lodged in May 2015, was accompanied by a report from a mental health officer which was in favour of the terms of the application.

An interim guardianship order was granted, with the council’s chief social worker appointed as interim guardian.

Thereafter the appellant lodged her minute, but it was not accompanied by a report from a mental health officer.

The sheriff ordered the mental health officer who had produced the original report to produce a report on the appellant’s suitability to be appointed as guardian, but the report concluded that she was not suitable to be so appointed.

However, the appellant argued that the mental health officer who had reported in favour of the terms of the council’s application should not also have been appointed by the court to prepare a report on her own application, due to a conflict of interest.

The appeal sheriffs refused the appeal after ruling that there was “no basis” to criticise the sheriff’s reasoning and “no identifiable error in the manner in which the sheriff has considered the evidence and framed his findings in fact”.

Rejecting the proposition that there was a conflict of interest, the appeal sheriffs also held that the same mental health officer should normally prepare the suitability reports on each applicant.

Delivering the opinion of the court, Sheriff Principal Pyle said: “It is for the sheriff, not the mental health officer, to decide whether or not to appoint a guardian (section 58 of the Act). To assist the sheriff in that task, Parliament has determined that there should be produced reports from at least two medical practitioners and from the mental health officer (section 57(3)).

“In preparing their reports the medical practitioners and the mental health officer will doubtless rely upon their individual professional qualifications and experience. In particular, the mental health officer can be expected to act in an independent manner from the local authority which seeks the appointment. He or she will consider the evidence and will, so far as reasonably possible, interview the adult and the applicant.

“But unlike a court the mental health officer cannot make findings in fact; instead, all that he or she can do is to consider the reported history of the case and the views of the various parties involved and then make a professional and independent assessment based upon the information provided. It is for the court to assess the value of that report.

“If, for example, the sheriff decides that material facts were not as reported to the mental health officer, the value of the report will be less. Indeed, as in this case, the mental health officer can expect in disputed cases to be examined and cross-examined at length under oath before the sheriff. So, there is a further opportunity for the sheriff to ingather information about the worth of the conclusions in the report.”

He added: “We do not know whether it is the practice in some jurisdictions for mental health officers always to decline to prepare a second report in such circumstances. But if there is such a practice we would discourage it. We readily acknowledge that there might be cases, probably rare, where the individual circumstances require a different approach, but we do not consider it to be either necessary or desirable as a matter of common practice.”

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