Over the last five years the number of applications under Part 6 of the Adults with Incapacity (Scotland) Act requiring reports from MHOs has more than doubled, legislative change has placed extra responsibilities upon MHOs, but the number of MHOs in post has not increased, and if anything has dwindled. We have already reported various aspects and consequences of this issue over the past couple of years. A further issue has emerged in relation to the renewal provisions contained in section 60 of the 2000 Act, as amended by the Adult Support and Protection (Scotland) Act 2007. Section 60(1) of the 2000 Act provides that a renewal application may be made at any time before expiry of a guardianship order “and where such an application is so made, the order shall continue to have effect until the application is determined”. Where the renewal application relates to the adult’s personal welfare, a report in prescribed form from an MHO must be lodged in court with the renewal application (in cases of inability to communicate only, the report is from the social work officer). Section 60 lacks an equivalent of the requirement for new applications under section 57(4) for MHO reports to be prepared within 21 days of notice of intention to apply – though much of our previous reporting has concerned the inability of local authorities to comply with that time limit, a situation likely to continue or even worsen until Scottish Government provides adequate resources to enable sufficient numbers of MHOs to be recruited, trained and retained.
In the case of renewal procedure under section 60, if for any reason the renewal application is not lodged in court before expiry of the existing order, the existing order will lapse, an adult whose needs require guardianship will lose the guardianship, and the extra trouble and expense of a fresh application will arise. What, accordingly, should practitioners do if the expiry date is drawing close, an MHO report has been requested, but there is no sign of it appearing timeously?
The whole adults with incapacity jurisdiction remains bedevilled by inconsistencies from one sheriffdom to another. Practice in Glasgow Sheriff Court, supported by a Practice Update of June 2016, offers a solution. The Practice Note provides that: “If a renewal application requires to be returned for correction the original lodging date will be retained, provided the corrected application is resubmitted within 14 days of receipt by the agents”. We have previously reported cases where first applications have been submitted without the required MHO report, and with a crave seeking production of the report. We would suggest that good practice across the country would be for renewal applications to be received where they are submitted without an MHO report and it can be shown that such a report had been requested in good time but not yet received. Provided that the court is willing to hold the application in court unrejected until the MHO report materialises, the position would be covered.
Unfortunately, we have learned that in some courts an alternative practice has been adopted, at least sometimes, of backdating the submission date of renewal applications which have in fact been lodged late, only once the necessary MHO report has arrived. That would appear to be an entirely inappropriate solution. It gives rise to grave and obvious issues about the status of both adult and guardian, and of any purported acts of the guardian, once the original order has by operation of statute expired, until any renewal application is in fact lodged in court. The application may never be lodged. How long can potential retrospectivity be extended before that potential is cut off? In the case of guardianships which include financial powers, how can it be said that the protection of caution remains available during such an indeterminate period? The simple answer is that the clear provision of section 60 cannot be avoided in this manner. If a renewal application, albeit lacking the MHO report, is not received and accepted by the court before the expiry date, the guardianship expires and that is irretrievable. Put another way, any discretion by the court that might permit continuation of the guardianship in the absence of the required MHO report must be exercised before expiry, to have any effect. The terms of statute cannot reasonably be stretched further than that. On the other hand, it is unlikely that a sheriff would be able to do other than permit the guardianship to continue until the missing MHO report is produced and can be lodged, as the sheriff in such matters is bound by the section 1 principles of the 2000 Act and it is unlikely that there would be benefit to the adult in allowing a guardianship to expire when there is nothing to suggest that the adult does not in fact continue to require a guardian, and everything which the applicant is able to do to ensure continuation of the guardianship has been done.