Sheriff Principal Mhairi M Stephen, who is Sheriff Principal of Lothian and Borders (and also President of the Sheriff Appeal Court), has issued Practice Note No 1, 2016, entitled “Applications under the Adults with Incapacity (Scotland) Act 2000”. The Practice Note is dated 11th March 2016 and will apply to all applications lodged on or after 25th April 2016. This new Practice Note is available here. An electronic version may be obtained by email from the AWI mailbox at Edinburgh Sheriff Court at firstname.lastname@example.org.
In the October 2015 Newsletter we reported on the issue by the Sheriff Principal of Glasgow and Strathkelvin of a Practice Note for applications under the 2000 Act. In that article we stated various criticisms of the Glasgow Practice Note. We are pleased to report that the new Edinburgh Practice Note is not open to similar criticisms.
The Edinburgh Practice Note is organised so as to cover separately applications and minutes under the 2000 Act (paragraph 2) and appeals to the sheriff under that Act (paragraph 3). The first of these seems to be focused principally upon applications under Part 6 of the Act, and does not explicitly address applications under section 3(3) or the two types of variation covered by section 74. However, it does carefully address the principal omissions in the Glasgow Practice Note. For example, paragraphs 2(k) and 3(g) both require averments as to the present and past wishes and feelings of the adult insofar as they can be ascertained. Alternatively, if it has not been possible to ascertain them, the writ must explain why and set out the steps taken, if any, to ascertain, including setting out any assistance or support which has been provided.
There have at times been difficulties where courts have criticised averments along the lines that “the applicant states that”, on the basis that the solicitor preparing the application should be in a position to offer to prove the averments. The Practice Note helpfully obviates some of these difficulties by requiring that a proposed guardian, substitute guardian or intervener should provide a letter specifying whether he or she has at any time been formally barred from working with vulnerable adults, or convicted of a criminal offence in Scotland or elsewhere.
The other requirements of the Practice Note largely follow the requirements of the 2000 Act itself and relevant court rules, and practitioners in other sheriffdoms may find it helpful to refer to it as a checklist. As ever, any such checklist can only be a starting-point: the particular circumstances of an individual application, or the precise nature of any orders sought, may well generate their own further requirements, or adjustments to requirements in the Practice Note.
The Edinburgh court would no doubt regard it as good practice that where for good reason there are any significant departures from the requirements of the Practice Note, the sheriff clerk’s attention should be drawn to these when an application or appeal is submitted, and the solicitor who has submitted it should be ready to address the sheriff on such points.