FREE CHAPTER from ‘A Practical Guide to the Sheriff Court and Protecting Vulnerable Adults in Scotland – Second Edition’ by David W Cobb

CHAPTER THREE – THE FIVE PRINCIPLES

A distinctly innovative part of the 2000 Act was the adoption of a set of broad principles in order to apply them to:-

“any intervention in the affairs of an adult under or in pursuance of this Act, including any order made in or for the purpose of any proceedings under this Act for or connection with an adult” [1].

It is important to recognise that these principles are to be “given effect” to “any intervention” made under the 2000 Act (Emphasis added). While certain office holders are subject to express requirements [2], it is submitted that this wide provision applies to almost anyone bearing to act under colour of the 2000 Act. As such, it arguably embraces almost all of the persons set out in Chapter 4 below.

A: No intervention without benefit to the adult (s.1 (2)):

“There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention” [3].

The term “intervention” is not defined further in the 2000 Act. While it clearly connotes a positive action or decision to act, it is further submitted that inaction or a decision not to act equally is comprehended by this principle [4]. That conclusion is strengthened by reference to the following two principles.

B: Least restrictive intervention upon the freedom of the adult (s.1 (3)):

“Where it is determined that an intervention as mentioned [in the first principle] is to be made, such intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention” [5].

The wording of this part of the 2000 Act points towards circumstances where a determination not to act to restrict the ability of an adult to take decisions, or continue in their current living arrangements, is a preferable outcome. For example, were an adult’s period of “incapacity” likely to be of a limited duration, major changes – say the sale of shares or jewellery – may prove unnecessarily stressful when capacity is regained.

The expression “benefit” is also undefined in the 2000 Act, and clearly is capable of a wide definition. There may be circumstances where making an intervention would simply worsen the adult’s situation, and that “benefit” can be seen to flow simply from doing nothing. It seems to be the case however, that “benefit” need not be one which accrues only to the adult [6].

Similarly, the expression “least restrictive” is capable of a fairly broad interpretation. While there may be an obvious, if rough, hierarchy between allowing an adult to remain in their own home and having them live in a care home within a locked wing, what lies between may be viewed more or less favourably from different perspectives. Some measures will result from wholly voluntary acts of an adult (e.g. the granting of a power of attorney [7]) and others will be imposed by a Court, such as a guardianship order [8].

C: Past wishes and feelings of the adult (s.1 (4) (a)):

The scheme of the 2000 Act presumes against an “intervention” being carried out in a vacuum, particularly with regard to the interests of the adult. Thus, operation of the principles previously set out are amplified in relation to the evaluation of any act or decision as follows:-

“In determining if an intervention is to be made and, if so, what intervention is to be made, account shall be taken of–

  • the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise) appropriate to the adult;” [9]

D: Views of other interested persons (s.1 (4)(b)-(d))

In making any “intervention” made under the 2000 Act, account also requires to be taken of:-

“(b) the views of the nearest relative, named person and the primary carer of the adult, in so far as it is reasonable and practicable to do so;

(c) the views of—

(i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention; and.

(ii) any person whom the sheriff has directed to be consulted,

in so far as it is reasonable and practicable to do so; and

(d) the views of any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible, in so far as it is reasonable and practicable to do so.” [10].

It will be seen therefore, that the first consideration is founded on the wishes and feelings of the adult. That is capable of being expressed in a number of means, ranging from written documents such as a power of attorney or statement of wishes and feelings, to expressions made to professionals to the kind of verbal statements made in day-to-day conversation [11].

What an adult’s wishes and preferences have been can be gleaned from a written document, but it is foreseeable that these will not be comprehensive, or may not address subsequent developments, or even that the adult simply has changed their mind on a matter. In such circumstances, the matter of what takes precedence may require careful analysis.

The Code of practice for persons authorised under intervention orders and guardians instances examples where an adult may have expressed views which seem contrary to their own interests, such as a person with a severe mental disorder who is determined to spend all their money, or one with a learning disability who is over eager to please a friend or relative and thus is unable to appreciate the value of their possessions [12].

Accordingly, further sources of information are specified to be taken into account “in so far as it is reasonable and practicable” to do so, including those directed by the Sheriff Court. This net is cast even wider where views have been communicated to the person making (or not making) an intervention in the affairs of an adult. [13].

E: Participation by the adult (s.1 (5)):

One specific counterbalance in the favour of an adult’s agency is provided to the effect that:-

“Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act or under any order of the sheriff in relation to an adult shall, in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he has concerning his property, financial affairs or personal welfare, as the case may be, and to develop new such skills.” [14].

Examples of this latter consideration provided by the Code of Practice for persons authorised under intervention orders or guardians include, using shops which permit changing booths to be used by spouses or partners; obtaining a restaurant’s menu in advance to provide the choice being made; or use of a befriending system [15].

It will be apparent that a significant difference may arise between how one individual or Court assesses the application of the principles between one given situation from another. As will be considered later, protection from liability can be provided by showing that the five principles have been considered and applied to an “intervention”. Such a position is likely to be strengthened if full and adequate records are maintained [16].

As already noted, issues may be clarified by taking into account the detailed advice provided in the Codes of practice issued by the Scottish government in conjunction with the 2000 Act, to which reference is made throughout this work. These provide guidance to the subject of each Code of practice in the exercise of their respective functions [17].

Such documents cannot be expected to be comprehensive or to anticipate every circumstance. This may make effective challenge to a decision or conclusion problematic, in terms of whether due consideration of the terms of the relevant Code of practice took place, or else whether an intervention was sufficiently a departure from such guidance or sufficiently misconceived, so as to violate the five principles.

This may be particularly important in relation to the decision whether to intervene or not and the extent of any intervention which takes place. What seems essential is avoidance of an outright failure to consider whatsoever any relevant passages of statute or advice.

Consequently, the subsequent content of this book requires to be viewed with the existence of the five principles firmly in mind. In simple terms, the existence of a power described does not mean that it must be used, but if it is, it is intended that it will be exercised in conformity with these principles.

A recent example of a Sheriff conducting an exercise of determining which Guardianship powers required to be granted in relation to an adult can be found in SBC v AB [18].

Overall, the kind of analysis made there suggests that the application of the five principles mandates particular questions to be asked – and answers provided – prior to embarking (or not) on seeking guardianship over an adult such as:-

  • Is it likely that the adult is “incapable”?
  • Is there any other means open to achieve the end sought?
  • Can the adult’s interests be promoted by anything less than a guardianship order being made?
  • Could the desired benefit to the adult be obtained without making a guardianship order?
  • Is a guardianship order the least restrictive option?
  • What views and wishes of the adult are known?

Later parts of this work will consider other relevant considerations, which generally will require to be taken into account in exercising powers in a manner consistent with the five principles. Further, as also considered below, there are instances where the holding of various offices under the 2000 Act requires some level of record – keeping [19].

One final significant issue is that an inevitable consequence of immediate family or close relatives acting under the 2000 Act is that conflicts of interest are likely to arise at times. One obvious example may be where a family member is appointed under a power of attorney, but also has an interest – whether or not as executor – in the estate of the granter of the power of attorney.

Here, to give one example, acts which the attorney considers will benefit the adult – such as their placement in a care home – may impact on what the attorney might receive on the adult’s death. Does an attorney who sells a property unaware of bequests made in the adult’s will, in effect, change that will? If so, can a solicitor holding the will claim client confidentiality if the attorney wishes to check the position?

In practice, situations may occur where mismanagement of an adult’s estate under a power of attorney, significantly impacts on the entitlement of beneficiaries under the adult’s will. While often a sensitive matter, appointment of different individuals to the position of attorney and executor may seem a practicable means of avoiding such outcomes.

These kinds of practical issues may need resolution in the course of conducting the functions this work will consider. In this regard, sight should not be lost of the right of any person “claiming an interest in the property, financial affairs or welfare of an adult intervene” in the exercise of functions or the making of orders under the 2000 Act [20].


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NOTES (CHAPTER 3)

  1. 2000 Act, s1 (1).
  2. See Chapter 4 below and 2000 Act, s.1 (5) & (7).
  3. 2000 Act, s.1 (2). Emphasis added.
  4. in D v Falkirk Council 2023 GWD 10-110, the Sheriff held that the terms of the 2000 Act were sufficiently broad to comprehend an “intervention” being authorised on an anticipatory basis (at paras. 14 &15)
  5. 2000 Act, s.1 (3).
  6. See B’s Curator Bonis, Noter 1996 SLT (Sh.Ct.) 27, where the Court allowed a curator bonis to sign a variation passing part of the adult’s estate falling to the ward’s husband to their sons, thereby reducing a prospective inheritance tax liability. (See also T Applicant 2005 SLT (Sh.Ct.) 97, and the analysis by the Sheriff of the approach of the public guardian to the issue of “benefit”).
  7. See Chapter 5 below.
  8. In relation to the making of a guardianship order (See Chapter 9 below), the Court must be satisfied that:- “no other means under this Act would be sufficient to enable the adult’s interests…to be safeguarded or promoted” (2000 Act, s.58 (1) (b)).
  9. In D v Falkirk Council, the Sheriff noted that the requirement of s.1 (4) of the 2000 Act to take account of the Adult’s views was expressed in unqualified terms which suggested that the duty was of an unqualified nature (At para.16).
  10. 2000 Act, s.1 (4). The broad wording of this provision has given rise to significant divergence in the practice of Sheriffs regarding whose views should be sought; in some cases resulting in delays in proceeding. At the time of writing, the Scottish Government is considering whether more specific guidance should be included in future provisions. (See FN 21 below).
  11. See Chapter 7 below. Other possible sources of an adult’s wishes and feelings include an advance statement (See 2003 Act, s.275) and will, if accessible.
  12. Code of Practice for persons authorised to act under intervention orders and guardians, Scottish government (2008) 4.43.
  13. 2000 Act, s.1 (4)(c).
  14. 2000 Act, s.1 (4)(d).
  15. 2000 Act, s.1 (5).
  16. Code of Practice for persons authorised under intervention orders or guardians, Scottish government (2008), para.6.51.
  17. See Chapters 7 & 10 below.
  18. 2000 Act, s.13. This section empowers Scottish Ministers to issue Codes of practice regarding the exercise of functions by local authorities and their chief social work officers and mental health officers; continuing and welfare attorneys; persons authorised under intervention orders; guardians; withdrawers; managers of authorised establishments; supervisory bodies; persons authorised to carry out medical treatment or research under Part 5 of the 2000 Act. Each of these offices will be considered later in this text. It should be noted that several Codes of practice date from before 2010 and the most recent is the Code of practice for financial and welfare attorneys which was updated in 2018.
  19. 2020 SLT (Sh.Ct.) 41. See also City of Edinburgh Council v D 2011 SLT (Sh.Ct.) 15, where Sheriff Reith provides an example of how the various principles can be evaluated and balanced (At paras.181-183).
  20. These will include the fiduciary duty; the duty of care; the duty of confidentiality (See Chapter 7 below), advice issued by the public guardian (2000 Act, s.6(2) (e)), and also whether the provision offering relief from liability (2000 Act, s.82) can be utilised (See Chapter 17 below).
  21. See in particular 2000 Act, ss.3, 20, 25, 53 & 57. One example can be found in B’s Guardian, Minuter 2010 GWD 33- 690. In B Minuter 2015 SLT (Sh.Ct.) 5, Sheriff Baird observed that the category of persons who might have an interest in an adult under this provision had been deliberately left very wide (At para.10). It may also be useful to keep in mind whether advice can be sourced from the public guardian in such circumstances.