Asperger’s and incapacity

Falkirk Council v D [2023] SC FAL 4 concerned the application of the Adults with Incapacity (Scotland) Act 2000 to an adult with a diagnosis of pervasive developmental disorder autism Asperger’s syndrome. The judgment of Sheriff Lugton provides a detailed analysis of the statutory framework which is of interest to practitioners in this area for several reasons.

Assessment of capacity

First, the case considered a difference of medical opinion on whether the adult’s diagnosis caused the adult to be incapable in terms of s 1(6) of the Adults with Incapacity (Scotland) Act 2000. One of the psychiatrists who gave evidence at the proof described the condition as an organic, neurodegenerative disorder that caused the adult to have executive dysfunction. The other psychiatrist did not agree with this description and was of the opinion the adult was capable.

Section 1(6) provides:

"For the purposes of this Act, and unless the context otherwise requires—

• 'adult' means a person who has attained the age of 16 years;
• 'incapable' means incapable of—

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and

• 'incapacity' shall be construed accordingly."

One previous reported case was identified on competing medical opinion on incapacity in an adult with Asperger’s syndrome, being City of Edinburgh Council v D 2011 SLT (Sh Ct) 15. In that case also, there was no dispute that the adult had Asperger’s syndrome, but the issue was whether he was incapax in terms of s 1(6). Sheriff Reith QC found that the adult was incapax and went on to find that the guardianship order had been of benefit to the adult and would continue to be of benefit. In the respective cases the adult’s Asperger’s syndrome affected them differently and each case required the application of the law to the specific facts. 

Sheriff Lugton found that the opinion offered by the psychiatrist instructed by the adult’s solicitors in Falkirk Council v D was vitiated by his flawed approach to the issue (para 88). The psychiatrist suggested to the court that what he called “the bar for capacity” could be raised, depending on the seriousness of the risk posed to an adult. He further suggested that assessing D’s capacity involved the application of the general principles set out in s 1(2)-(4) of the 2000 Act.

Section 1(2) provides: “There shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.”

By s 1(3), where it is determined that an intervention 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”. By s 1(4), in determining what if any intervention should be made, account shall be taken (among other views) of “the present and past wishes and feelings of the adult so far as they can be ascertained”.

Sheriff Lugton held that psychiatric evidence given in this context ought to focus on the statutory test for capacity – i.e. does the adult have a mental disorder (or an inability to communicate because of physical disability) which prevents him from making, communicating, understanding, acting on or retaining the memory of decisions; and on the question whether the adult will continue to be incapable, as per s 58(1)(a). He considered that the psychiatrist appeared to conflate the two stages of the process (para 91) and that the psychiatrist’s reliance on a code of practice which had no direct bearing on the issue was misconceived (para 92).

Duration of order

Secondly, the case considered whether, where an adult is opposed to a guardianship order, the duration of the order should be restricted to enable further judicial review. Sheriff Lugton deals with the duration of the order at paras 130-132; he found that if the order were to be imposed for only one or two years, D would face having to attend further medical examinations and to deal with looming court proceedings in the relatively near future, which might well be to his detriment. By contrast, imposition of the guardianship for the three year term sought by the applicant would represent a reasonable but not excessive period during which the position would be settled.

Another case which considered the question of how long an adult should be subject to a guardianship order was also by Falkirk Council and in respect of the adult S: [2014] SC FAL 8. In that case the issue of incapacity was not in dispute and that was by reason of the adult’s learning disability. The sole issue in dispute was the length of the order sought, with the applicant seeking a period of three years and the solicitor for the adult contending that a one year order would be sufficient. In support of a one year order evidence was led from an independent social worker instructed by the adult’s solicitor.

Sheriff Mundy found that the overwhelming weight of evidence was in favour of a three year order and concluded that in all the circumstances such an order would be the least restrictive option in relation to the freedom of S and consistent with the purpose of the intervention. He accepted the evidence of the witnesses for the applicant that there would be regular and robust reviews of the care package with a view to determining the appropriate level of intervention as the order proceeded.

Against the adult’s views

Lastly, the case considered the extent to which there should be intervention in the life of an adult with neurodiversity. The adult did not wish the guardianship order to be renewed and did not believe that the order benefited him. The adult was supported by an advocacy worker to instruct a solicitor who in turn obtained the assistance of counsel in presenting this position on the adult’s behalf.

Sheriff Lugton found that the guardianship order would benefit the adult and that such benefit could not reasonably be achieved without that intervention. Further, the order would be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention. At para 109 he noted that the adult’s views were strong and long-held, adding: “I do not neglect this, and I recognise that D’s views should not be overridden lightly. Renewal of the guardianship will mean an interference with D’s autonomy and an intrusion into his life. Unfortunately, for the reasons set out above notwithstanding D’s wishes, I think that the proposed order is necessary”.

In terms of future development of the law in this area, the Scottish Government commissioned an independent review of the inclusion of learning disability and autism in the definition of mental disorder within the Mental Health (Care and Treatment) (Scotland) Act 2003. The Rome Review recommended in January 2020 that learning disability and autism be removed from the definition of mental disorder in the 2003 Act and that a new law be created. The Scottish Government has committed to introducing a Learning Disability, Autism and Neurodiversity Bill. The final report of the Scottish Mental Health Law Review was presented in September 2022 to the Scottish Government. The recommendation made therein was that a decision-making model should replace the current guardianship system.