report

(SCOT LAW COM No 240)

Report on Adults with Incapacity

Report on Adults with Incapacity

Laid before the Scottish Parliament by the Scottish Ministers under section 3(2) of the Law Commissions Act 1965

October 2014

SCOT LAW COM No 240 SG/2014/180 The Stationery Office

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The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Pentland, Chairman Laura J Dunlop, QC Patrick Layden, QC TD Professor Hector L MacQueen Dr Andrew J M Steven.

The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

Tel: 0131 668 2131 Fax: 0131 662 4900 Email: info@scotlawcom.gsi.gov.uk

Or via our website at http://www.scotlawcom.gov.uk/contact-us

NOTES

1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO (http://www.tsoshop.co.uk/).

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3. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that the pdf version of this document available on our website has been tagged for accessibility.

1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820).

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SCOTTISH LAW COMMISSION

Item No 7 of our Eighth Programme of Law Reform

Report on Adults with Incapacity

To: Kenny MacAskill MSP, Cabinet Secretary for Justice

We have the honour to submit to the Scottish Ministers our Report on Adults with Incapacity.

(Signed) PAUL B CULLEN, Chairman

LAURA J DUNLOP

PATRICK LAYDEN

HECTOR L MACQUEEN

ANDREW J M STEVEN

Malcolm McMillan, Chief Executive 12 September 2014

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Contents

Paragraph Page

Chapter 1 Introduction

Background 1.1 1 Structure of the Report 1.3 1 Background to the Adults with Incapacity (Scotland) Act 2000 1.5 1 Relevant parts of the Adults with Incapacity (Scotland) Act 2000 1.8 2 Other relevant actors referred to in the Bill 1.11 3 Legislative competence and human rights 1.13 3 Impact Assessment 1.19 4 Advisory group; other meetings 1.24 5

Chapter 2 Recent case law

Introduction 2.1 7 Strasbourg 2.3 7

General principles 2.3 7 Kedzior v Poland 2.9 9 Mihailovs v Latvia 2.13 9 Chosta v Ukraine 2.21 12

England and Wales 2.25 13 Two key cases 2.25 13 The decision of the Supreme Court 2.29 14

Scotland 2.36 15

Chapter 3 Discussion Paper: Responses

Introduction 3.1 16 Family care 3.2 16 Hospital admission 3.9 18 Definitions 3.22 20 Process for deprivation of liberty in community settings 3.39 23

Authorisation by an attorney 3.41 24 Authorisation by a guardian 3.47 25 Intervention orders 3.49 26 Procedures and evidential requirements of new court order 3.52 26

Consent by surrogate decision maker 3.56 27 Release provision 3.61 28

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Contents (cont'd)

Paragraph Page

Chapter 4 Overview of proposed reforms

Introduction 4.1 31 Hospitals 4.2 31

Inpatient care 4.2 31 Taking people to hospital 4.9 33 Discharge from hospital 4.12 33 Duration of authorisation 4.30 37

Community settings 4.39 39 Deprivation of Liberty Safeguards 4.42 39 Definition 4.45 40 Process: grant of authorisation 4.57 43 Process: evidence 4.65 45 Duration 4.68 46 Other necessary features 4.72 47 Release provision 4.75 48

Chapter 5 Hospitals

Introduction 5.1 49 Scope of the process 5.2 49 Assessment or medical treatment 5.8 51 Incapacity certified by medical practitioner primarily responsible for the 5.9 51 treatment Measures to prevent an adult going out of a hospital 5.13 52 Duration 5.19 53 Setting an end date 5.20 54 Duty to review and revocation 5.26 55 Right to appeal 5.28 55

Chapter 6 Community process

Introduction 6.1 57 Scope of process 6.2 57 Definition 6.6 58

Types of restriction 6.8 58 Measuring the extent 6.15 60 Factors not included 6.17 60

Process: evidential requirements 6.29 62 Short-term measures 6.29 62 Measures of longer duration 6.32 63

Process: Authorisation of implementation 6.38 65 Surrogate decision maker 6.38 65

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Contents (cont'd)

Paragraph Page

Authorisation by the Sheriff 6.40 65 Rights of challenge or appeal 6.41 66 Duration and renewal 6.44 66 Variation 6.46 66 Intimation and documentation 6.48 67

Conclusion 6.49 67

Chapter 7 Power to make an order for cessation of unlawful detention

Introduction 7.1 71 Scope of the provision 7.2 71 Operation of the provision 7.4 71 Definitions 7.6 72 Interaction between the cessation of detention provision and section 7.7 72 291 of the Mental Health (Care and Treatment) (Scotland) Act 2003

Chapter 8 Summary of recommendations 74

Appendix A Draft Adults with Incapacity (Scotland) Bill 80

Appendix B List of respondents to the Discussion Paper 100

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Abbreviated forms of reference

Organisations and bodies

The Association of Directors of Social Work in Scotland is referred to as "the Association of Directors of Social Work".

The Mental Health and Disability Sub-committee of the Law Society of Scotland is referred to as "the Law Society".

The Mental Health Tribunal for Scotland is referred to as "the Mental Health Tribunal".

The Mental Welfare Commission for Scotland is referred to as "the Mental Welfare Commission".

NHS Greater Glasgow and Clyde Health Board Mental Health Clinical Governance Legislation Sub-group is referred to as "NHS Greater Glasgow and Clyde".

People First (Scotland) is referred to as People First.

Royal College of Psychiatrists in Scotland: Faculty of Old Age Psychiatry is referred to as "RCPS (OAP)".

Royal College of Psychiatrists in Scotland: Faculty of Psychiatry of Intellectual Disabilities and Faculty of Child and Adolescent Mental Health is referred to as: "RCPS (ID/CAMH)".

Scottish Court Service and Office of the Public Guardian is referred to as "the Public Guardian".

West Dunbartonshire Community Health & Care Partnership (a Strategic Partnership between NHS Greater Glasgow & Clyde and West Dunbartonshire Council) is referred to as "West Dunbartonshire Partnership".

Statutes and other instruments

The Adults with Incapacity (Scotland) Act 2000 is referred to as "the 2000 Act"

The Mental Health (Care and Treatment) (Scotland) Act 2003 is referred to as "the 2003 Act".

The European Convention on Human Rights is referred to as the ECHR or the Convention.

The Deprivation of Liberty Safeguards provided for in the Mental Capacity Act 2005 are referred to as "DoLS".

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Publications

The Scottish Law Commission Discussion Paper on Adults with Incapacity (Scot Law Com Discussion Paper No 156, 2012), available at: http://www.scotlawcom.gov.uk/law-reform-projects/adults-with-incapacity/ is referred to as the Discussion Paper or DP No 156.

Cases

The cases of P v Cheshire West and Chester Council; P and Q v Surrey County Council, [2014] UKSC 19 are, together, referred to as Cheshire West.

Individuals referred to in the Report

David Cobb is a member of the Faculty of Advocates.

Professor Tom Guthrie is a Professor at the University of Glasgow, School of Law, who submitted a response in a personal capacity.

Hilary Patrick is an Honorary Fellow at the University of Edinburgh, School of Law.

Dr Lucy Series is a Research Associate at Cardiff Law School, Cardiff University. At the time of submitting her response she was a postgraduate researcher in the Department of Law at the University of Exeter.

Dr Jill Stavert is a Reader in Law, Edinburgh Napier University, School of Accounting, Financial Services and Law.

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Chapter 1 Introduction

Background

1.1 This Report addresses a legal problem which has been evident in the United Kingdom since the Bournewood case, a decision involving the law of England and Wales.1

The details of the case will be familiar to many readers, and are set out fully in our Discussion Paper.2 In summary, the case determined that the admission to a psychiatric hospital and continued residence there of a person with learning difficulties such that he could not consent to being where he was represented a deprivation of his liberty, could not be characterised as voluntary and needed to take place under a lawful process in order to comply with Article 5 of the European Convention on Human Rights.

1.2 We included this issue in our Eighth Programme of Law Reform, after it had been suggested to us by the Mental Welfare Commission for Scotland, ENABLE Scotland and the Mental Health and D