In the January 2014 issue of this newsletter a brief overview was provided of the post-Bournewood implications for Scottish legislation, notably the Adults with Incapacity (Scotland) Act 2000 and s13ZA Social Work (Scotland) Act 19681. Since then, there has been the Supreme Court Cheshire West judgment.2 So, what does this mean for Scotland?
As indicated in the January issue, questions that have been exercising minds, including that of the Scottish Law Commission whose report3 on the matter is expected later this year, are:
- What exactly is a “deprivation of liberty” engaging Article ECHR? And
- Where such a deprivation of liberty exists:
- Does Scottish legislation provide the requisite Article 5 lawful authority for it? And
- Do the necessary Article 5 compatible legal and procedural safeguards exist for the person who has been deprived of their liberty?
Cheshire West: Brief facts
A reading of the full case is strongly recommended but the following are the brief essential facts.
This case involved two conjoined appeals – that of P and Q¸ also known as MIG and MEG, and of P - which raised the issue of what criteria should be used to assess whether the living arrangements made for a mentally incapacitated person who cannot give valid consent to restrictions on their activities amounts to a deprivation of liberty.
P and Q¸ also known as MIG and MEG, are sisters with learning disabilities who were placed in care at the ages of, respectively, 16 and 17. MIG was placed with a foster mother to whom she was devoted and referred to as “Mummy”. She did not require medication and attended, on a daily basis, a further education unit daily and was taken on trips and holidays by her foster mother. Although she did not attempt to leave the foster home on her own she would have been restrained from doing so had she tried. MEG was originally in foster care but it was not possible to manage her aggressive behaviour there so she was moved to an NHS residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received sedative medication.
P is an adult born with cerebral palsy and Down’s syndrome. He requires 24 hour care. He lived with his mother until he was 37 years old until her health deteriorated. The local social services authority then obtained Court of Protection orders providing that it was in P’s best interests if he now live in accommodation arranged by the local authority. He has lived, since late 2009, in a staffed bungalow with other residents near his home. He has one to one support that enables him to regularly leave the bungalow for activities and visits. Sometimes intervention is required when he exhibits challenging behaviour although he is not on sedative medication. He also requires prompting and assistance with all aspects of daily living. He needs to wear continence pads and because he has a tendency to pull at these and put piece in his mouth he wears all-in-one underwear to prevent this.
Definition of “Deprivation of Liberty”
The seven Justice panel of the Supreme Court unanimously ruled that P had been deprived of his liberty and by a majority of 4 to 3 that MIG and MEG had been deprived of their liberty.
Lady Hale’s delivered the leading judgment stating that what is pivotal, and in all three cases she believed that these criteria has been met regarding MIG, MEG and P, is whether the person is “under continuous supervision and control and not free to go,”4 and she noted that she did not agree that supervision and control is relevant only where the person is not free to leave.5 She stressed that everyone has the equal protection of human rights and to be deprived of liberty is the same for all whether or not one has a physical or mental disability,6 firmly rejecting the ‘normality’ approach previously suggested by Lord Justice Munby in the Court of Appeal.7
Indeed, the normality approach was rejected by all seven Justices. Lady Hale and Lords Sumption, Neuberger and Kerr all agreed that restrictions employed for an individual with incapacity’s benefit do not form part of the assessment of whether or not there has been a deprivation of liberty engaging Article 5 ECHR.
Admittedly there was a very narrow majority on the finding regarding MIG and MEG. Moreover, although Lord Neuberger8 rejects the minority opinion that a person confined to an “ordinary” domestic home setting, or something closely resembling this, is not deprived of their liberty he does indicate that it is unlikely restrictive measures employed by natural or adoptive parents would amount to a deprivation of liberty9. Additionally, as was acknowledged by several of the Justices, Strasbourg has not yet been invited to rule on a set of facts that mirrors those in this particular case. There is obviously no ability for Cheshire West to be appealed to the European Court of Human Rights but it is not beyond the realms of possibility that it may have to consider a similar case at some stage. In this case, UK courts would be obliged to follow its lead. However, for the time at least, it is clear that even in relatively informal care settings individuals who are under continuous supervision and control are deprived of their liberty where they are unable to give valid consent to this. For such deprivation of liberty to be compatible with Article 5 ECHR must have a legal basis and there must be appropriate legal and procedural safeguards to allow that person to be able to challenge the legality of such deprivation of liberty.
Cheshire West and Scotland
What Cheshire West does not answer for Scotland is whether the consent of substitute decision- makers, such as welfare attorneys and welfare guardians, can or can be made to provide the necessary valid consent to restrictions that would otherwise amount to a deprivation of liberty10 or lawful authority to a deprivation of liberty. This remains to be resolved regarding the Adults with Incapacity (Scotland) Act 2000. However, as mentioned in the January 2014 issue,11 Application in respect of R indicates that provided the guardianship order permits a welfare guardian to deprive a person with incapacity of their liberty this constitutes the requisite lawful authority for the of Article 5, presumably because this is impliedly permitted by the 2000 Act. What is clear from Cheshire West, however, is that, as stated in Application in respect of R, s13ZA of the Social Work (Scotland) Act 1968 provides neither the lawful authority nor the necessary legal and procedural safeguards to be compliant with Article 5. See also Adrian Ward’s discussion of s13ZA below for a further discussion of this.
The Scottish Law Commission’s report and guidance is now eagerly awaited.