Introduction

Welcome to the November 2015 Newsletters. Highlights this month include:

  1. In the Health, Welfare and Deprivation of Liberty Newsletter, a decision about deprivation of liberty in hospital and the meaning of state detention under the Coroners and Justice Act 2009, and the final instalment in the Rochdale deprivation of liberty saga;
  2. In the Capacity Outside the CoP newsletter, an introduction to the work of the new National Mental Capacity Forum from its Chair, Baroness Finlay;
  3. In the Practice and Procedure Newsletter, an update on the regionalisation of the Court of Protection;
  4. In the Property and Financial Affairs Newsletter, a number of decisions concerning powers of attorney;
  5. And in the Scotland Newsletter, the annual report of the Mental Welfare Commission for Scotland.

We also take this opportunity to remind readers that where one of the Newsletter editors is instructed in an ongoing case which is summarised, that editor does not play any part  in drafting the summary or comment.

And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here.

Mental Welfare Commission Annual Report

On 29th October 2015 the Mental Welfare Commission for Scotland published its annual report for 2014-15, available here. Introducing the report, Colin McKay, Chief Executive of the Commission, said:

“This was an important year in relation to the lawful and ethical treatment of people with mental health issues, learning disability and dementia.

“The Mental Health Bill will bring some positive changes, and we welcome the appointment of Jamie Hepburn as the Scottish Government’s first  minister  to have mental health listed in his title.

“But more than 10 years after mental health and incapacity law was reformed, there are still wide variations in understanding amongst Scottish health care staff of how the law should operate. That can lead to unlawful treatment, and to people not getting the care and support they need.”

The report notes that the Mental Health Bill is the most significant revision of mental health law since 2003. The Commission requested alterations to the Bill related to protecting patients’ rights, many of which were accepted by Scottish Government. The Bill will give the Commission new statutory responsibilities related to advance statements, and to advocacy. The Commission believes that both of these will help to promote the rights  of patients and of people who use services. It is anticipated that these provisions will come into force in 2016.

Mental Welfare Commission Annual Report

On 29th October 2015 the Mental Welfare Commission for Scotland published its annual report for 2014-15, available here. Introducing the report, Colin McKay, Chief Executive of the Commission, said:

“This was an important year in relation to the lawful and ethical treatment of people with mental health issues, learning disability and dementia.

“The Mental Health Bill will bring some positive changes, and we welcome the appointment of Jamie Hepburn as the Scottish Government’s first  minister  to have mental health listed in his title.

“But more than 10 years after mental health and incapacity law was reformed, there are still wide variations in understanding amongst Scottish health care staff of how the law should operate. That can lead to unlawful treatment, and to people not getting the care and support they need.”

The report notes that the Mental Health Bill is the most significant revision of mental health law since 2003. The Commission requested alterations to the Bill related to protecting patients’ rights, many of which were accepted by Scottish Government. The Bill will give the Commission new statutory responsibilities related to advance statements, and to advocacy. The Commission believes that both of these will help to promote the rights  of patients and of people who use services. It is anticipated that these provisions will come into force in 2016.

During the year 2014-15 the Commission revised its aim, embedding human rights at the core of its work. As part of its commitment to increased transparency, it decided that from February 2016 it will publish all of its local visit reports to hospitals and to care services.

The annual report records that as the only organisation in Scotland which monitors the use of mental health and adults with incapacity legislation, the Commission has published national and local information about how well the legislation is being followed, particularly in circumstances where people are detained in hospital against their will.

In this Newsletter we have highlighted concerns about pressures on mental health officer services resulting in widespread breaches of statutory time limits for submission of mental health officer reports and, last month,  the Commission’s statistics showing a 105% increase over five years in the number of Part 6 applications under the Incapacity Act requiring mental health officer reports. This annual report emphasises the Commission’s concerns about the capacity of mental health officer services to fulfil their statutory roles. It records that despite the massive increase in workload, numbers of mental health officers are actually decreasing.

Adrian D Ward

Where am I? Yet more complication and confusion

In our July 2015 newsletter we reported on revised Scottish Government guidance as to determination of ordinary residence  for purposes  of  social  work  responsibilities.    We noted that Annex A to the guidance concluded with an assertion that it would be reviewed in the light of the decision of the Supreme Court in the Cornwall case. We recorded  concern  not only at potential differences between definitions of “ordinary residence” between England & Wales and Scotland, but differences between “ordinary residence” for the purposes of social work legislation and “habitual residence” for purposes of adults with incapacity legislation (and, in cross-border situations, the Hague Convention 35 on the International Protection of Adults). Those with the stamina to try to follow these complications will have noted that “ordinary residence” may be different for different purposes, such as social work, tax, or entitlement to a particular state benefit; and they will have wrestled with whether the concept of “living in” – for example in the Care and Support (Cross-Border Placements and Provider Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 - may or may not differ from residing or ordinarily residing somewhere.

The multiplicity of different concepts intended to link a person  to a place continues to develop unabated. HM Revenue & Customs has now published final guidance on the new Scottish rate of income tax and the criteria for determining liability to Scottish income tax. It proposes that tax status should be determined by concepts such as a “close connection to Scotland” and “main place of residence”. It is appalling that this unco-ordinated multiplicity of concepts and definitions should develop, and particularly so that the confusion should be greatest in relation to vulnerable people with impairments of capacity to make their own choices. It is surely time for a clear decision to be made as to how many categories of linkage – beyond basic concepts   of   nationality   and   domicile   –   are required; to reduce the number of concepts to those which are essential; and to define the required concepts clearly and consistently for all purposes.