VARIATION AND RENEWAL OF ORDERS FOR GUARDIANSHIP MADE UNDER THE PROVISIONS OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 MINUTE TO VARY IN RE OF JM [2011] ScotSC 107 (08 June 2011)

VARIATION AND RENEWAL OF ORDERS FOR GUARDIANSHIP MADE UNDER THE PROVISIONS OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 MINUTE TO VARY IN RE OF JM [2011] ScotSC 107 (08 June 2011)

The sheriff court has jurisdiction to vary and renew a guardianship order originally made by the High Court of Justiciary under criminal jurisdiction. The application must comply with the procedural and substantive requirements of the Adults with Incapacity (Scotland) Act 2000. The original order was varied to specify an individual office holder as guardian, to clarify and expand the powers to meet the adult's current needs, and to limit the duration to three years in compliance with human rights standards. Intimation and procedural safeguards are essential to protect the adult's rights and interests.

Citation
[2011] ScotSC 107
Parties
Applicant/minuter: Glasgow City Council; Adult/respondent: J.M.; Interested Party: Lord Advocate; Interested Party: Clerk of Justiciary; Safeguarder: Mr Frank Irvine
Jurisdiction
Scotland
Judgment Date
08 June 2011
Procedural Posture
Minute to Vary Guardianship Order (criminal Jurisdiction) / Application to Vary and Renew Guardianship Order Originally Made by High Court of Justiciary
Outcome
Minute to Vary granted; original guardianship order varied and renewed.
Legal Topics
Guardianship Orders, Variation and Renewal of Orders, Jurisdiction and Forum, Intimation Requirements, Duration of Orders, Compliance With ECHR and UNCRPD, Sexual Offences Notification Requirements
Mental Health Law Criminal Procedure Civil Procedure Human Rights Guardianship Orders Variation and Renewal of Orders Jurisdiction and Forum Intimation Requirements +3 more

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Parties

Glasgow City Council

Applicant/minuter

J.M.

Adult/respondent

Lord Advocate

Interested Party

Clerk of Justiciary

Interested Party

Mr Frank Irvine

Safeguarder

Procedural Posture

Minute to Vary Guardianship Order (criminal Jurisdiction) / Application to Vary and Renew Guardianship Order Originally Made by High Court of Justiciary

Legal Issues

  1. 1 What is the correct procedure and forum for varying or renewing a guardianship order made by a criminal court?
  2. 2 What are the requirements for intimation and hearing in such applications?
  3. 3 Is it appropriate for such orders to be made for an indefinite period?

Ratio Decidendi

The sheriff court has jurisdiction to vary and renew a guardianship order originally made by the High Court of Justiciary under criminal jurisdiction. The application must comply with the procedural and substantive requirements of the Adults with Incapacity (Scotland) Act 2000. The original order was varied to specify an individual office holder as guardian, to clarify and expand the powers to meet the adult's current needs, and to limit the duration to three years in compliance with human rights standards. Intimation and procedural safeguards are essential to protect the adult's rights and interests.

Court Disposition

Minute to Vary granted; original guardianship order varied and renewed.

Orders

  • Appointed Chief Social Worker of Glasgow City Council as welfare guardian.
  • Deleted power to provide medical treatment; substituted with power to assist with medical, dental, and nursing needs.