1. Deprivation of Liberty Social Work Scotland Annual Conference 2015 Dr Jill Stavert Director, Centre for Mental Health and Incapacity Law, Rights and Policy Edinburgh Napier University 11/06/20161

2. Introduction Persons with incapacity and deprivation of liberty in care settings:  Requirements for compatibility with Article 5 European Convention on Human Rights(ECHR) (right to liberty).  Is Scottish legislation ECHR compatible?  Scottish Law Commission recommendations. 11/06/20162

3. Article 5 ECHR – the right to liberty 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (e)…..the lawful detention of...persons of unsound mind… … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 11/06/20163

4. Persons with incapacity and deprivation of liberty: Where did it all begin? HL v UK (2004) (‘Bournewood’) Extension of deprivation of liberty (DoL) engaging Article 5 ECHR to beyond ‘traditional’ detention settings. Person with incapacity, even if compliant, cannot be assumed to have consented to a DoL. Legal and procedural safeguards required for DoL of person lacking capacity. 11/06/20164

5. So, what exactly is a deprivation of liberty (DoL) falling within scope of Article 5 ECHR? Not defined in ECHR so case law (European Court of Human Rights and UK courts) guidance required. Objective and subjective factors determine whether there is a DoL. Key objective factor - is person under continuous supervision and are they free to leave? Thus can include a range of care settings (see also Cheshire West). Subjective factor - can the person give valid consent to the DoL?  If so, Art 5 not engaged and DoL lawful.  If unable to give valid consent, legal and procedural safeguards required. 11/06/20165

6. Cheshire West case: UK Supreme Court Further broadened scope of DoL for persons with incapacity to domestic type settings. Key objective factor that the person concerned “was under continuous supervision and control and was not free to leave”. (Lady Hale at para 49) A DoL is the same for everyone. The fact that the restriction is to ‘benefit’ person or is ‘normal’ for a person with that disability is immaterial to the DoL assessment. 11/06/20166

7. Substitute decision-makers Can substitute decision-makers (e.g. welfare attorneys or welfare guardians) consent to DoL on behalf of person with incapacity? ECHR case law insufficiently developed to answer this definitively. 11/06/20167

8. Additional issue: UN Convention on the Rights of Persons with Disabilities and legal capacity Expansive interpretation of the right to exercise legal capacity (Art 12) by Committee on the Rights of Persons with Disabilities General Comment No.1.  No interventions without individual’s personal consent and no substitute decision-making (support for decision- making instead). What about consent to DoL and safeguards? Mismatch with European Court of Human Rights interpretation of the exercise of legal capacity but ECHR precedence over CRPD in UK. 11/06/20168

9. Articles 5(1) and (4) legal and procedural safeguards and persons with incapacity A deprivation of liberty must be:  Authorised by the law  A proportionate measure  Fall within the exception specified in Article 5(1) (e) (‘unsound mind’) (Winterwerp criteria) 11/06/20169

10. Articles 5(1) and (4) legal and procedural safeguards and persons with incapacity DoL need not be originally authorised by a court but there must be:  The ability to challenge the lawfulness of a DoL through the courts.  Regular reviews of the detention where the detention is lengthy or indefinite.  Enhanced procedural safeguards for persons with incapacity are required for such review/challenge - must be real and effective providing the same level of protection for a person lacking capacity as for others(MH v UK and Stankov v Bulgaria).  Is this only achievable through automatic judicial review? 11/06/201610

11. Scottish legislation and the ‘Bournewood gap’ Mental Health (Care and Treatment) (Scotland) Act 2003 – in general, Article 5 compliant though care required regarding community based CTOs. s.13ZA Social Work (Scotland) Act 1968 – no Article 5 issue UNLESS person is moved to environment where there is a DoL. See Mental Welfare Commission guidance. 11/06/201611

12. Scottish legislation and the ‘Bournewood gap’ Adults with Incapacity (Scotland) Act 2000 (AWIA) At present  Validity of welfare guardian/attorney consent to DoL uncertain.  Lack of legal and procedural safeguards where DoL of adults with incapacity. 11/06/201612

13. Scottish Law Commission Report on Adults with Incapacity (2014) recommendations: (1) Preventing an adult with incapacity from going out of hospital Authorised by a medical practitioner. Potential issues:  Assessing whether deprivation of liberty engaging Article 5 ECHR exists - immobile patients  Duration of authorisation – compatibility with Article 5(1)(e) – “End dates” and suitable alternative accommodation  Article 5(4) safeguards - oversight of authorisation and subsequent review where no court involvement 11/06/201613

14. (2) Authorisation of significant restriction of liberty (SRoL) in relation to (A) placement in a care home or accommodation arranged by an adult placement service; and (B) short term care By reason of vulnerability or need resulting from infirmity, ageing, illness, disability, mental disorder, or drug or alcohol dependency. “relevant person”, being the manager of the material premises, failing which the adult’s social worker, may determine whether SRoL is required. SRoL then authorised by welfare attorney and guardian will then authorise such significant restriction of liberty (or a sheriff if they do not exist or do not agree). Assumption that such power within welfare guardian or attorney powers unless the contrary is expressly indicated. 11/06/201614

15. (2) Authorisation of significant restriction of liberty (SRoL) in relation to (A) placement in a care home or accommodation arranged by an adult placement service; and (B) short term care Proposed that concept of SRoL is clearer and easier to apply than DoL. SRoL will occur where two of following are present:  Adult is not allowed, unaccompanied to leave premises or unable to leave owing to physical impairment  Barriers are used to limit the adult to particular areas of those premises  Adult’s actions are controlled, whether or not within those premises, by the application of physical force, the use of restraints or (for the purpose of such control) the administering of medication 11/06/201615

16. (2) Authorisation of significant restriction of liberty (SRoL) in relation to (A) placement in a care home or accommodation arranged by an adult placement service; and (B) short term care Objective factors constituting SRoL - Lack of social contact not included. Article 5(4) safeguards - oversight of authorisation and subsequent review where no court involvement. 11/06/201616

17. (3) Ability to apply to the sheriff in relation to an unlawful detention of an adult with incapacity Relates to accommodation provided or arranged by a care home service or an adult placement service. The adult or any person claiming an interest in the adult’s personal welfare order may be apply. Again, Art 5 procedural safeguard issues. 11/06/201617

18. Where to now? Scottish Government response to SLC report awaited. Addressing practical and resourcing issues associated with closing the ‘Bournewood gap’. 11/06/201618

19. Dr Jill Stavert Reader in Law and Director, Centre for Mental Health and Incapacity Law, Rights and Policy The Business School Edinburgh Napier University Craiglockhart Campus Edinburgh EH14 1DJ j.stavert@napier.ac.uk 0131 455 4553 11/06/201619