During September, the Mental Welfare Commission published its 2015/16 monitoring reports for the Adults with Incapacity (Scotland) Act 2000(AWI) and Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 Act).
Readers are referred to the reports themselves for more detail. However, the Commission has flagged certain areas of concern which I will very briefly summarise and comment on below.
AWI: Increase in guardianship applications and orders
The Commission has noted a continued increase in guardianship applications and orders with the highest proportion of welfare guardianships being sought for people with dementia (45%) or learning disability (41%).
It is not entirely clear why this is the case although it would appear – and this is arguably rather self-defeating - that guardianship is being required in some situations in order to access self-directed support. Concern, following the Bournewood and, more specially, the Cheshire West rulings, that potential deprivations of liberty in social care settings are made lawful in terms of Article 5 ECHR may also be prompting the increase. Indeed, certain Scottish rulings17 have indicated that guardianship will effectively render a deprivation of liberty of an incapable adult lawful in terms of Article 5 ECHR. However, this is by no means certain given the very limited ability to challenge the lawfulness of such deprivation of liberty through the courts.18 Certainly, the fact that the highest proportion of welfare guardianships being sought is for people with dementia or learning disability begs the question as to how effectively the principles in section 1 of the AWI are being applied and the extent to which such persons are being properly supported to exercise their legal capacity as required by Article 12 CRPD and Article 8 ECHR.
It is hoped that such issues will be addressed in any legislative changes that result from the current Scottish Government review of the AWI.
The Commission notes that emergency detentions are increasing with only 56% having the consent of a mental health officer. In the July 2016 issue of this newsletter I have already referred to an earlier report of the Commission Emergency detention certificates without mental health officer consent and mentioned the Article
5 ECHR issues that potentially arise in such situations.
Community-based Compulsory Treatment Orders (CTOs) are up and during 2015/16 40% of people on CTOs were being treated in the community. Whilst the value of such orders cannot be ignored it is important to ensure that compulsion of this nature is appropriate and, as such, in accordance with the principles19 that underpin the 2003 Act, particularly in terms of respect for patient autonomy and choice, and being the minimum necessary restriction of freedom and of maximum benefit to the patient.20 Moreover, as it has previously commented in its December 2015 Visits to people on longer term community- based compulsory treatment orders report,21 the Commission comments that more needs to be done in terms of supporting recovery plans for people who are subject to compulsion.