Introduction
It’s been ten years since the UK Supreme Court Cheshire West[1] ruling, so where are we in Scotland in terms of responding to this?
Well, one could argue that at least we haven’t 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 how to address the issues the judgment raised we haven’t actually done anything concrete yet! That being said, the Scottish Government’s 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[2] ruling.
ECHR issues
In a nutshell, Article 5(1)(e) ECHR allows the deprivation of liberty of ‘persons of unsound mind’. 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[3] 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.
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]. This was confirmed by the UK Supreme Court in Cheshire West[5] – its ‘acid test’ for a deprivation of liberty – 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. Article 5(4) challenge safeguards must be practical and effective for persons with mental disabilities[6]. 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.
What this means for Scotland
Bournewood and Cheshire West 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], 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].
The Scottish Courts appear to have accepted that Article 5 ECHR compatibility can be achieved through appropriate guardianship powers[9]. 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 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.
In response to Cheshire West, 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]. This essentially mirrors 2007 Scottish Government guidance containing a similar warning[11].
Post-Bournewood and Cheshire West actions in Scotland
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 and Cheshire West. The recommendations made, and draft Bill provided, by the Scottish Law Commission[12] were ultimately not taken forward. Surprisingly, although there have been several ‘near misses’ in terms of Bournewood/Cheshire West situations reaching court hearings none, rather surprisingly given the time lapse, have been judicially considered in Scotland with Aberdeenshire Council v SF, in England in 2024, being the first.
The need to address the Bournewood and Cheshire West ‘gaps’ 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], 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].
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:
- Respects the wishes of a person who cannot make an autonomous decision but can, with support, express a will and preference to remain in their current living arrangements (even where these arrangements would otherwise constitute a deprivation of liberty).
- A practical and effective standalone right of review available to the adult deprived of their liberty, or a person acting on their behalf (where the adult is not subject to any order) and the ability of the Mental Welfare Commission to intervene where it has concerns.
- Powers of Attorney may grant advance consent to deprive the granter of their liberty, subject to safeguards.
- A court or tribunal may authorise a Decision Making Representative, or an intervention order, to deprive the person of their liberty.
- Where a person cannot consent to their care arrangements, even with support, and is being deprived of their liberty but does not have a welfare attorney or a Decision Making Representative, a court/tribunal may grant a Standard or, to preserve life or health, an Urgent Order for Deprivation of Liberty, either lasting for only as long as needed to achieve the protection required, with regular review dates and a right of appeal at the time of granting.
- Before proceeding to apply for a Standard Order for deprivation of liberty, an evaluation of the human rights implications must be completed.
The Review also stated that in the longer term this framework should be revised as its Human Rights Enablement, Supported Decision Making, and Autonomous Decision Making recommendations are developed.
Although, in relation to the recommended attorney and Decision Making Representative powers to authorise a deprivation of liberty, there is a lack of direction from the European Court of Human Rights on the Article 5 compatibility of such measures (as well as Article 12 CRPD questions of these measures not representing the will and preferences of the person at the time of the authorisation), the Review envisaged that provided that rights protecting measures are in place, this ensures that the will and preferences of the granter are represented. The Aberdeenshire ruling reinforces the need for such rights protection measures.
In its high level 2023[15] response to the Review’s recommendations the Scottish Government accepted such recommendations in broad terms. It announced a 10-year programme of reform of mental health and capacity law specifying various priorities throughout this period, one of the first being adults with incapacity law reform, including the deprivation of liberty challenges. We understand that the Scottish Government will shortly consult on proposed changes to the law here and that these will include enhancing AWIA guardianship provisions to ensure greater respect for a person’s autonomy but also to specifically recognise that guardians may be empowered to authorise deprivations of liberty with accompanying Article 5(4) safeguards. The outcome and resultant legislation are therefore awaited.
Jill Stavert
[1] P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor)(Appellants) v Surrey County Council (Respondent) [2014] UKSC 1 (Cheshire West) .
[2] Aberdeenshire Council v SF [2024] EWCOP 10.
[3] HL v UK (2005) 40 EHRR 32.
[4] Ibid, para 91.
[5] Cheshire West at 49, per Lady Hale.
[6] MH v UK (2013) ECHR 1008.
[7] X v Finland (2012) ECHR 1371.
[8] Rooman v Belgium (2019) ECHR 105.
[9] K v Argyll and Bute Council (2021) SAC (Civ) 21.
[10] This 2014 guidance is also reflected in the Commission’s Deprivation of Liberty: Advice Notes, updated March 2021, https://www.mwcscot.org.uk/good-practice/guidance-advice
[11] Scottish Government (2007), Guidance for Local Authorities (March 2007) Provision of Community Care Services to Adults with Incapacity, CCD5/2007, https://www.gov.scot/publications/adults-incapacity-scotland-act-2000-code-practice-local-authorities-exercising-functions-under-2000-act/pages/12/
[12] Scottish Law Commission (2014), Report on Adults with Incapacity, (Scot Law Com No 240), https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/completed-projects/adults-with-incapacity/
[13] See, for example, Law Society for Scotland (2021), Our 2021 priorities: Incapacity, mental health and adult care and protection, https://www.lawscot.org.uk/news-and-events/blogs-opinions/our-2021-priorities-incapacity-mental-health-and-adult-care-and-protection/
[14] Scottish Mental Health Law Review (2022), Final Report, Chapter 8, section 3.
[15] Scottish Government (2023), Scottish Mental Health Law Review: Our Response, https://www.gov.scot/publications/scottish-mental-health-law-review-response/