Where two parties are competing to be appointed welfare guardian to an incapable adult, the same mental health officer should normally report to the court on the suitability of each applicant, the Sheriff Appeal Court has stated.

Sheriff Principal Derek Pyle, Sheriff Principal Marysia Lewis and Sheriff Nikola Stewart made the comments in refusing an appeal by JM, the sister of JC, to whom Sheriff Summers at Aberdeen had appointed the chief social worker of Aberdeenshire Council as welfare guardian. 

JM argued among other points that the mental health officer who had previously reported in favour of the council's application, should not also have been appointed by the court to report on her own suitability, due to conflict of interest. The report had concluded that she was not suitable for appointment. JM also complained about the contents of the report and the sheriff's conclusions.

The court refused the appeal on the basis that no ground had been shown for disturbing the sheriff's findings. However the court added that it did not accept the complaint of conflict of interest. Agreeing with comments in an unreported decision from Kilmarnock Sheriff Court where the sheriff had expressed surprise that different mental health officers had been appointed because of concerns over conflict of interest, Sheriff Principal Pyle stated in delivering the opinion of the court:

"The mental health officer can be expected to act in an independent manner from the local authority which seeks the appointment... unlike a court the mental health officer cannot make findings in fact; instead, all that he or she can do is to consider the reported history of the case and the views of the various parties involved and then make a professional and independent assessment based upon the information provided. It is for the court to assess the value of that report. If, for example, the sheriff decides that material facts were not as reported to the mental health officer, the value of the report will be less. Indeed, as in this case, the mental health officer can expect in disputed cases to be examined and cross-examined at length under oath before the sheriff. So, there is a further opportunity for the sheriff to ingather information about the worth of the conclusions in the report."

He concluded: "We do not know whether it is the practice in some jurisdictions for mental health officers always to decline to prepare a second report in such circumstances. But if there is such a practice we would discourage it. We readily acknowledge that there might be cases, probably rare, where the individual circumstances require a different approach, but we do not consider it to be either necessary or desirable as a matter of common practice."

Click here to view the opinion of the court.