The recent case of Minutes for Direction by doctor AB illustrates the power of the Sheriff Court in determining where an “incapax” adult should reside. Incapax means that the adult can no longer make informed decisions about their affairs, so a guardian is often appointed to do this for them.
The mother had Alzheimer’s disease and so her daughter was her guardian – she made the decisions about her mother’s welfare, property and finances. The daughter’s powers extended to making arrangements for the long term care of her mother, but she had not yet done so, meaning the mother had been in and out of NHS hospitals for three years.
The doctor caring for the mother applied to the Court seeking an order for the daughter to move her mother to a care home; his reasons seemed legitimate: the mother was admitted to hospital 26 times in a year, she needed constant help and she was picking up infections in hospitals. The doctor then said that a Care Home would provide “proper and continuous treatment in an appropriate environment,” stopping the disruption to her life.
The Sheriff held that the daughter must, for the “immediate benefit of the adult”, move her mother to the Care Home recommended by the doctor.
The Adults with Incapacity (Scotland) Act 2000 states that a Sheriff can give “direction” about decisions or actions that are related to an incapax adult. The Court in this case stated that there is a “wide general discretion” for the court to decide what is appropriate – this means the court has a lot of leeway.
The Court was determined that it was in the mother’s “best interests” to be put in the specified Care Home. The daughter had refused to move her mother out of NHS hospitals for a three year period and only accepted the possibility after being threatened with a court order.
Bed blocking is an increasing problem in NHS hospitals around the UK. It is interesting that the Sheriff has the power to order an adult to be physically moved from a place, which is meant to be accessible for all. This poses the question: what is the policy behind the Sheriff’s power? Whilst it is stated that the “best interests” of the mother necessitated the move, it could be argued that the Sheriff was simply trying to help cut the numbers of hospital patients. Overall this case highlights the authority of the Sheriff and the caution needed by involved parties.