There is urgent need for advice and guidance following a landmark ruling in the Supreme Court which means that far more vulnerable adults than previously realised may have suffered a deprivation of liberty. It also calls into question the use of standard procedures of moving people into nursing homes.
The case concerned the rights of disabled people living in care facilities in England. The Supreme Court judgement was in respect of two conjoined appeals; which analysed the cases of two sisters with learning difficulties and a man with cerebral palsy who lived in care facilities. The rulings were a majority decision of 4 to 3 and a unanimous decision in each appeal respectively that the applicants had been deprived of their liberty.
In coming to this decision, the justices said they had considered criteria for judging whether living arrangements for mentally incapacitated people amounted to a "deprivation of liberty".
They said such deprivation had to be authorised under the terms of the 2005 Mental Capacity Act and living arrangements subjected to regular independent checks.
During a public hearing following the case Sir James Munby said there would be financial implications for local authorities and significant implications for the administration of justice.
Sir James, who is President of the Family Division of the High Court and President of the Court of Protection, said that there is now likely to be a 'very significant' increase in the number of "deprivation of liberty" cases Court of Protection judges would be asked to analyse and monitor.
Even before these remarks, campaigners had already called on the Government to issue guidance to care providers and local authorities in the wake of the Supreme Court ruling.
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 the authority must have a legal basis and there must be safeguards to allow that person to be able to challenge the legaility of such deprivation of liberty.
So, what does this mean for Scotland?
S13ZA of the Social Work (Scotland) Act 1968 was created to provide an alternate to a guardianship or intervention order. This is utilised where a local authority determines 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.
What is clear is that S13ZA of the Social Work (Scotland) Act 1968 provides neither the lawful authority nor the necessary legal or procedural safeguards to be compliant with Article 5 of ECHR.
Another hearing, where an analysis of the above will be examined in more detail, is due to take place.
For more information or advice please contact one our experienced team.
