Last month we reported the decision of Sheriff D A Brown at Hamilton Sheriff Court in the case SS and MM, Applicants, addressing a situation on which we have repeatedly reported, namely the widespread failure of local authorities to comply with section 57(4) of the Adults with Incapacity (Scotland) Act 2000. The section requires that a Mental Health Officer’s Report (where one is required) for an application under part 6 of the 2000 Act be produced within 21 days of notice of intention to bring the application. In SS and MM notice of intention had been given on 29th May 2015, but by the time of the hearing before Sheriff Brown on 25th September 2015 no Report had been prepared. He ordered North Lanarkshire Council, the relevant local authority, to prepare the Report within 14 days. The local authority appealed to the Sheriff Principal. We reported the decision at first instance upon being advised that the local authority had abandoned our appeal.

On 19th February 2016 Sheriff Brown refused to make a similar order, upon substantially similar facts. The difference on that occasion would appear to be that the local authority provided to the Sheriff figures for the number of Mental Health Officers employed by the Council, the number of requests for Reports received year on year, how such Reports are allocated and what are the various competing demands for the services of Mental Health Officers. It was submitted that as the problem was one of resources the court should only exercise its discretion to make such an order in the clearest and most exceptional circumstances, such as where an adult was in danger of abuse or neglect., or likely to lose an offer of accommodation, if no powers were put in place. The Sheriff took the view that there was nothing about the case before him which warranted it being given any special priority. Surprisingly, no assurances appear to have been given to the court as to the steps being taken by that particular Council – or for that matter nationally – to resolve the shortage of Mental Health Officers and thus allow Councils to perform their statutory obligations in the matter.

In the case of Stork, pursuer 2004 SCLR 513, a Mental Health Officer’s Report had not been prepared within the 21 day period and in consequence the medical reports were, by the time that the application was lodged in court, older than the 30 days required in terms of section 57 (3) of the 2000 Act. Sheriff Vanett rejected a submission that he had discretion under section 3(1) to allow the application to be received notwithstanding these deficiencies. Instead, he interpreted “shall” in section 57 (3) as being “directory rather than mandatory”. He suggested that his interpretation was “in harmony with the purpose and principles of the [2000] Act”. He referred to the benefit principle and commented that if the provisions of section 57(3) and (4) were strictly enforced, then the pursuers would have to go to the trouble and expense of instructing fresh examinations and assessments, and would have to raise a new application. That decision was prior to the amendments to section 57 made by the Adult Support and Protection (Scotland) Act 2007, introducing (in sub sections (3)A and (3)B) discretion to allow the medical reports where they are more than 30 days old. The amendments in effect gave statutory authority to the course followed by Sheriff Vanett in Stork.

It would appear that the question, now, is whether on the one hand Sheriff Vanett’s view that “shall” in section 57(4) is still “directory rather than mandatory”; or alternatively whether the Parliament, having chosen to legislate expressly to create a discretion where medical reports are late, would have created similar express discretion if it had intended that there be similar flexibility regarding Mental Health Officer’s report and, having not done so, clearly intended the 21 day limit to be mandatory and not within the discretion of Sheriffs to extend. These arguments do not appear to have been explored in the latest case. On the other hand, as we have previously asserted, the only effective solution – under the legislation as it stands – is for urgent steps to be taken to improve the recruitment, training and retention of Mental Health Officers so that Part 6 applications may be processed as intended by the Parliament.

It is worth recalling that the 21 day limit did not appear in the draft Bill annexed to the Scottish Law Commission “Report on incapable adults” (report number 151, September 1995). In subsequent consideration, there was significant concern that Part 6 applications should not be delayed through delays in producing required reports. The options canvased were either to impose a statutory time limit, or alternatively to “open up” the requirements to other sources of reports. For as long as there are too few Mental Health Officers to meet requirements, any intervention by the courts will only cause individual applications to be processed ahead of others. An alternative solution would be to remove the Mental Health Officer’s “monopoly” and open up to other sources of reports.