Section 13ZA of the Social Work (Scotland) Act 1968 was inserted by the Adult Support and Protection (Scotland) Act 2007 to provide an alternative to a guardianship or intervention order where (in terms of section 13ZA (1)) a local authority determines under the 1968 Act that an adult’s needs call for the provision of a community care service, and it appears to the local authority that the adult is incapable in relation to decisions about the service. In such situations the local authority may take any steps which they consider would help the adult to benefit from the service, and in terms of subsection (2) that expressly includes moving the adult to residential accommodation provided under the 1968 Act. Previously that outcome was achieved by way of guardianship or intervention orders. Sheriff Baird, in Glasgow, in Muldoon, Applicant, 2005 SLT (Sh. Ct.) 52, held that where an adult is compliant with a move into such a care regime, but legally incapable of consenting to or disagreeing with it, then to impose the regime deprives the adult of his or her liberty in breach of Article 5 of the European Convention on Human Rights. He held that such a step should not be taken without express authority, and that in such a situation the appropriate statutory intervention was a guardianship order, because in every case where the court is dealing with an incapable but compliant adult, the least restrictive option would be the granting of a guardianship order, provided that all the other statutory requirements are satisfied for it. Only in that way would the necessary safeguards and statutory regulatory framework to protect the adult (and the guardian) come into play. The sheriff’s reasoning would appear to apply equally to intervention orders.

Local authorities are required to exercise their functions under the 1968 Act under the general guidance of Scottish Ministers, and to comply with their directions (section 5 of the 1968 Act). The relevant guidance is Guidance for Local Authorities (March 2007) Provision of Community Care Services to Adults with Incapacity. It sets out the procedure to be followed under section 13ZA and addresses the question of when that procedure is and is not to be followed. It is not to be followed when “the person with  impaired  capacity is opposed to the proposed course of action as far as can be ascertained”, nor where “in providing the care intervention needed, the circumstances amount to a deprivation of liberty”. If Sheriff Baird were correct in Muldoon that such a move, without valid consent, is always a deprivation of liberty, then section 13ZA would not be applicable in the circumstances expressly described in subsection (2). The guidance, with scant regard for the respective roles of legislature, judiciary and executive, and without giving reasons, asserted that “The Scottish Executive does not agree with this interpretation of the ECtHR cases”. Sheriff McDonald nevertheless agreed with and supported Sheriff Baird’s views in M, Applicant, 2009 SLT (Sh. Ct.) 185. Adrian sought to break through this circularity by focusing upon Article 6 of the Convention rather than Article 5 in “Adults with Incapacity: Freedom and Liberty, Rights and Status (Part 1) 2011 SLT (News) 21. However, the debate has been re-opened by the decision of the Supreme Court in P v Cheshire West and Cheshire Council and another and P and Q v Surrey County Council [2014] UKSC 19. The guidance asserts that a guardianship  or  intervention order  is appropriate where the adult is “opposed to the proposed course of action” but not where the adult is compliant. At least to that extent, Sheriff Baird’s position has been vindicated by the Supreme Court. As Lord Neuberger pointed out (para 68): “The notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle”. It will remain necessary in any case to consider whether the circumstances into which an adult is transferred amount to deprivation of liberty, but currently the last word on  how to determine that is to be found in Cheshire West, excluding many of the suggested grounds upon which the circumstances of an adult could be categorised as not amounting to a deprivation of liberty.

Section 13ZA was a response to perceived problems which never have existed. Local authorities were said to be overburdened with the volume of applications which they required to handle, and moves of adults typically from hospital into other accommodation were said to be subject to unacceptable delay. However, the financial memorandum accompanying the Bill which became the Incapacity Act predicted 1,500 applications per annum by local authorities, which would have produced 4,500 such applications in the three years up to the Muldoon decision. In fact, as pointed out in Adrian’s commentary on Muldoon included in the SCLR Report, there were in fact only 996. The delays which are still being experienced, particularly in discharging adults from hospital, could be shortened substantially by more efficient procedures, such as were explored at a conference of health and social work professionals and administrators hosted in Glasgow City Chambers on 8th March 2013. Given that section 13ZA has the additional problems of non-compliance with Article 12 (4) of the United Nations Declaration on the Rights of Persons with Disabilities, the debate about section 13ZA is proceeding, even at the level of whether the procedure created by it is properly operable at all.