{"id":86,"date":"2024-03-28T12:05:13","date_gmt":"2024-03-28T12:05:13","guid":{"rendered":"https:\/\/blogs.napier.ac.uk\/enu-cmhpplr\/?p=86"},"modified":"2024-03-28T12:05:15","modified_gmt":"2024-03-28T12:05:15","slug":"scotland-ten-years-post-cheshire-west-the-advantages-and-disadvantages-of-not-legislating","status":"publish","type":"post","link":"https:\/\/blogs.napier.ac.uk\/enu-cmhpplr\/2024\/03\/28\/scotland-ten-years-post-cheshire-west-the-advantages-and-disadvantages-of-not-legislating\/","title":{"rendered":"Scotland ten years post-Cheshire West: the advantages and disadvantages of not legislating!"},"content":{"rendered":"

Introduction<\/strong><\/h3>\n

It\u2019s been ten years since the UK Supreme Court Cheshire West<\/em>[1]<\/a> ruling, so where are we in Scotland in terms of responding to this?<\/p>\n

Well, one could argue that at least we haven\u2019t tied ourselves in the Deprivation of Liberty Safeguards and halted Liberty Protection Safeguards knots that our cousins South of the Border seem to have. However, in fairness to such cousins, that is probably because whilst we have considered<\/em> how to address the issues the judgment raised we haven\u2019t actually done<\/em> anything concrete yet! That being said, the Scottish Government\u2019s current programme of reform for mental health and capacity law will result in steps to address the issues, and the importance of doing this swiftly was recently brought into even sharper relief by, somewhat ironically, the English and Welsh Court of Protection Aberdeenshire Council v SF<\/em>[2]<\/strong><\/em><\/a> ruling.<\/p>\n

ECHR issues<\/strong><\/em><\/h3>\n

In a nutshell, Article 5(1)(e) ECHR allows the deprivation of liberty of \u2018persons of unsound mind\u2019. This is, of course, subject to safeguards, such as the ability to challenge the lawfulness of this through a court or tribunal and to be discharged as soon as the reason for detaining the person has ceased and\/or it is not lawful (Article 5(4) ECHR). The 2004 European Court of Human Rights Bournewood<\/em>[3]<\/sup><\/a> ruling made it clear that Article 5 is engaged where a person lacks capacity to consent to a deprivation of their liberty and they are therefore entitled to Article 5 protections.<\/p>\n

The Court stated that a deprivation of liberty engaging Article 5 is where a person is under continuous supervision and control and is not free to leave[4]<\/sup><\/a>. This was confirmed by the UK Supreme Court in Cheshire West<\/em>[5]<\/strong><\/sup><\/em><\/a> \u2013 its \u2018acid test\u2019 for a deprivation of liberty \u2013 which also made it clear that the Article 5 reach extends to all health and social care situations. We also know that simply dealing with the issue about how a deprivation of liberty can be authorised is insufficient.\u00a0 Article 5(4) challenge safeguards must be practical and effective for persons with mental disabilities[6]<\/sup><\/a>. Whilst this might not dictate that automatic judicial review occurs it certainly means that the ability to challenge the lawfulness of a deprivation of liberty must be within the realistic grasp of the person subjected to it.<\/p>\n

\u00a0<\/strong><\/p>\n

What this means for Scotland<\/em> <\/strong><\/h3>\n

Bournewood <\/em>and Cheshire West <\/em>led to a questioning of the Article 5 ECHR compatibility of Adults with Incapacity (Scotland) Act 2000 (AWIA) measures where adults who lack capacity are deprived of their liberty, and also those under section 13ZA of the Social Work (Scotland) Act 1968 (SWSA) (allowing local authorities to move adults who lack capacity to residential care). Detention under the Mental Health (Care and Treatment) (Scotland) Act 2003 is, however, largely Article 5 compliant although questions arise about Articles 5 and 8 ECHR compatibility and non-consensual treatment whilst on Short Term Detention Orders[7]<\/a>, and levels of restriction whilst in low secure facilities, as well as the reminder that the lawfulness of detention on the basis of mental disorder depends on the availability of suitable care and treatment[8]<\/a>.<\/p>\n

The Scottish Courts appear to have accepted that Article 5 ECHR compatibility can be achieved through appropriate guardianship powers[9]<\/a>. However, this has seemingly glossed over the fact that there is an absence of accompanying Article 5(4) safeguards. In 2024, the Court of Protection Aberdeenshire Council v SF <\/em>ruling helpfully pointed this out! Nor would the argument that guardians are effectively the person giving consent to the deprivation of liberty hold given the lack of Strasbourg endorsement here.<\/p>\n

In response to Cheshire West<\/em>, the Mental Welfare Commission for Scotland also issued guidance in 2014 warning against the use of Section 13ZA SWSA where the person is being moved to a care setting where they will be, or are likely to be, deprived of their liberty[10]<\/a>.\u00a0 This essentially mirrors 2007 Scottish Government guidance containing a similar warning[11]<\/a>.<\/p>\n

Post-Bournewood and Cheshire West <\/em>actions in Scotland <\/strong><\/h3>\n

Prior to the Scottish Mental Health Law Review (2019-2022) the Scottish Law Commission and Scottish Government both considered and consulted on the issues raised by Bournewood <\/em>and Cheshire West<\/em>. The recommendations made, and draft Bill provided, by the Scottish Law Commission[12]<\/a> were ultimately not taken forward. Surprisingly, although there have been several \u2018near misses\u2019 in terms of Bournewood\/Cheshire West<\/em> situations reaching court hearings none, rather surprisingly given the time lapse, have been judicially considered in Scotland with Aberdeenshire Council v SF<\/em>, in England in 2024, being the first.<\/p>\n

The need to address the Bournewood <\/em>and Cheshire West<\/em> \u2018gaps\u2019 therefore fell to the Scottish Mental Health Law Review. By this stage, frustration was mounting over the lack of action to address these particular human rights concerns[13]<\/a>, although they are admittedly complex which involve a need to both achieve ECHR compatibility whilst not creating unnecessary levels of bureaucracy. Moreover, so far we have of course only considered ECHR requirements in this article. CRPD challenges to the denial of the exercise of legal capacity and deprivation of liberty on the basis of a diagnosis of mental disability and related impairment (based on mental capacity assessments) is something else that requires consideration given that the UK is a CRPD state party and because the Scottish Government intends that CRPD rights, along with those in other international human rights treaties, will, to some extent at least, become legally enforceable in Scotland. This was a fundamental issue that was considered by Scottish Mental Health Law Review and reflected in its recommendations[14]<\/a>.<\/p>\n

Its reasoning and recommendations on deprivation of liberty can be found in Section 3 of Chapter 8 of its Final Report. Whilst a full reading of this section of the report is strongly advised, it in essence recommended that in the short term the Scottish Government should establish a legislative framework for situations where a person may be deprived of their liberty that:<\/p>\n