Scottish Care Consultation on the Scottish Law Commissions Report on Adults with Incapacity 2016


Consultation on the Scottish Law Commissions Report on Adults with Incapacity 2016

March 2016

If you would like to download this Consultation you can do so here:


In October 2014, the Scottish Law Commission (‘the Commission’) published a report on Adults with Incapacity which focussed on the question of deprivation of liberty as it relates to persons who may be subject to the Adults with Incapacity legislation and associated issues. The report made a number of recommendations and contained a draft Bill, amending the Adults with Incapacity (Scotland) Act 20002 (‘the 2000 Act’) and the Mental Health (Care and Treatment)(Scotland) Act 20033 (‘the 2003 Act’).

The Commission’s report concluded that adults without incapacity are being confined to hospital wards and residential facilities in Scotland without any underlying legal process which is contrary to Article 5 of the ECHR.

This consultation sought views on specific matters raised in the Commission’s report, with particular reference to the Commission’s draft Bill and how that would work alongside the existing legislation. It also sought general views on wider aspects of the 2000 Act that may benefit from review. The findings from this consultation will inform the decisions regarding any wider review of the 2000 Act.

To view the full consultation paper, see



  1. Are you responding as an individual or an organisation?



  1. What is your name or your organisation’s name?

Scottish Care


Scottish Care is a membership organisation and the representative body for independent social care services in Scotland. Working on behalf of a range of small, medium and large providers across private and voluntary services, Scottish Care speaks with a single unified voice for both members and the whole independent care sector.  This includes those who use independent sector care services.

Scottish Care counts over 400 organisations as members, which totals almost 900 individual services across Scotland. The private and voluntary sectors are significant providers of social care – in 2015, these sectors provided 83% of care home places and contributes to 55% of home care hours for older people.



  1. What is your email address?


[email protected]


  1. The Scottish Government generally seeks to publish responses to a consultation, in summary and where possible in detail. We would like your permission to publish:


Response along with full name

  1. We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise?






1 . Is a process required to authorise the restriction of an individual’s liberty in a community setting (beyond a guardianship or intervention order), if such restriction is required for the individual’s safety and wellbeing?

Scottish Care is undecided as to whether an additional process is required to authorise restriction of liberty.  We certainly support any steps which safeguard against unnecessary or excessive restrictions on an individual’s liberty and do believe that improvements need to be made to the current legislation and processes.

Importantly, the previous legislation provides mechanisms for the deprivation of liberty which are not only in direct contrast to ECHR Article 5 but which are discriminatory as they don’t offer adults with Incapacity equal recognition before the law.  There is a danger currently that adults with incapacity can have their rights legally limited as a consequence of poor mental health and laws designed to protect their rights can be ignored with impunity.

We therefore welcome new approaches which are robust, non-discriminatory and in line with the ECHR.

Both the care sector and the regulatory bodies are increasingly aware of and committed to the protection of the human rights of those who access care and support services, and there absolutely must be equality of rights whether someone requires care and support services or not, and whether they have conditions which require interventions to protect their safety and wellbeing or not.

However, the establishment of a new process to authorise restriction presents two significant challenges.  Firstly, it places significant obligations on various health and social care professionals when capacity is already a concern, which has real implications in terms of timescales and effectiveness.  Secondly, an unintended consequence of this process could be the growth of an unhelpful and inaccurate perception that health and care services, and care homes in particular, are places where an individual’s autonomy and liberty are under real threat and whereby restrictions are the norm. This couldn’t be further from the truth, and in fact these services work to promote and maintain independence, safety and wellbeing at all times.

Therefore, we believe that steps which promote discussions, evidence and approval in relation to restrictions on liberty are absolutely the right thing to do.  However, we are not entirely convinced that this new process would be the right way to do it and that other approaches such as training, awareness raising or guidance couldn’t produce more positive outcomes.  It is well known that new, top-down legislation is not necessarily the best way to influence change at a practice level. We would therefore encourage the Scottish Government to undertake further engagement with health and social care organisations, providers and people who access care and support to better ascertain the best way forward.

  1. The proposed legal authorisation process will not be required for a person who is living in a care home where the front door is ordinarily locked, who might require seclusion or restraint from time to time. Do you agree that the authorisation process suggested by the Commission should not apply here?


As the consultation document helpfully highlights, there are approximately 35,000 people in care home services, 20,000 of whom are likely to be living with a degree of cognitive impairment.  It would be entirely inappropriate to require authorisation for all these individuals when interventions relating to their liberty are expected to be low-level, infrequent and temporary.  The nature of the care home population means individuals are likely to have higher support needs, complex conditions and fluctuating capacity, and they have been assessed as requiring help to live safely and well.  Therefore care homes will have to implement measures such as locked front doors in order to uphold their responsibilities in relation to duty of care.  To require an authorisation process for the majority of care home residents who fit into this category would be wholly unacceptable and would be a significant intrusion on and restriction of the rights of other residents. In essence this would be practicably unworkable. The authorisation process should only be required for individuals for whom restrictions on their liberty are substantial, very frequent and for significant periods of time.

  1. In proposing a new process for measures that may restrict an adult’s liberty, the Commission has recommended the use of ‘significant restriction ‘ rather than deprivation of liberty and has set out a list of criteria that would constitute a significant restriction on an adult’s liberty. Please give your views on this approach and the categories of significant restriction.

We support the use of ‘significant restriction’ rather than deprivation of liberty.  We believe it would allow for more effective, accurate and consistent application that isn’t subject to changes in jurisprudence.  The language more precisely reflects the intentions underpinning it and the realities of how it will be understood and applied in practice, since we are talking about restricting liberty where necessary and in balanced ways rather than depriving – a term which implies a lack of cooperation and proportionality.

However, we would want to see further clarification in relation to the defined categories in order to aid understanding of when ‘significant restriction’ is to be implemented.  For instance, under their duty of care, there is unlikely to be many instances whereby care home staff would be able to permit a resident to leave the premises entirely unaccompanied or without any mechanisms to be able to locate them (e.g. the use of GPS systems for some residents with dementia who like to go out in the community).  These residents may be accompanied by a member of staff, a relative, friend or piece of technology but if none of these systems were in place and care home staff enabled residents to leave the premises at will and without careful monitoring and recording, serious questions would be asked as to how the service was protecting and promoting those persons’ safety, health and wellbeing, not least by regulatory bodies.  The same applies to restricting access to areas of the premises – there may well be entirely legitimate and reasonable decisions taken to restrict access to areas which present a risk to safety such as cleaning cupboards and kitchen areas.  Additionally, the protection of other residents’ rights mean there may be legitimate reasons to restrict access to other individuals’ bedrooms and bathrooms.  Few people, when the decision-making and risk-assessments related to these areas are clear, would raise concern with those restrictions.  We don’t believe the intention of the Commission’s report is to require authorisation of these sorts of restrictions but if care staff and other health and social care professionals are to implement authorisation correctly and effectively, the criteria need to be explained in much clearer ways and perhaps with supporting practice examples and case studies.

On a separate matter, Scottish Care has some concerns in relation to the assignment of a ‘relevant person’ and the duties attached to this. The new bill, on paper, looks to offer stronger accountability mechanisms, for example, “The care home manager must complete a Statement of Significant Restriction (SSR) which is to specify the way in which the adult’s liberty is to be restricted and why. Thereafter a report is required from a Mental Health Officer (MHO) and a medical practitioner as to the appropriateness of the proposed restrictions”. Whilst clarity around accountability is important and positive, it’s essential that this process is fully implemented, robust and that specific resources are in place to oversee it.  We would be concerned about the implementation of this without careful consideration being given to the capacity and skills of care home managers to be able to do this effectively.  We understand there are similar concerns in relation to the capacity and resources of MHO’s.


  1. The authorisation process provides for guardians and welfare attorneys to authorise significant restrictions of liberty. Do you have a view on whether this would provide sufficiently strong safeguards to meet the requirements of article 5 of the ECHR?

The new legislation could benefit from a stronger move away from substitute decision making- where decisions are made on someone’s behalf towards supported decision making- where someone is supported to participate in decisions that affect their life in a free, meaningful and active way without discrimination.  Whilst this may present challenges in relation to capacity, that is not an excuse to not make every effort possible to enable an individual to be involved and informed as far as possible and this should be evidenced.

There are also issues in relation to what authority a guardian or welfare attorney has, and whether their decision-making powers extend into this area (e.g. those with only financial powers).

It should also be recognised that conflicts of interest may exist between the relevant person (as defined) and the guardian or welfare attorney.  Additional attention may need to be given in determining what action is in the best interests of the individual to whom the restriction relates to and how opposing views can be mediated in the most beneficial way.

From a human rights perspective, to take different approaches in hospital and community settings in relation to the guardian or welfare attorney’s decision-making power is problematic. In hospital settings, not recommending the involvement of attorneys and guardians in the process of authorising ‘detention’ because of a concern that such involvement might undermine the delivery treatment assumes that the delivery of treatment is the priority. However, if the adult in question has decided that they want their attorney or guardian to be involved in decisions about their care, treatment and support then this would be contradictory to their wishes. It contracts principles of participation, non-discrimination and empowerment.  It also implies that delivery of treatment in hospitals takes priority over delivery of care in community settings, which can be equally critical in someone’s health and wellbeing.

If a guardian or welfare attorney does not authorise the restriction, there are significant implications for referral to sheriffs.  These implications are in relation to cost, timescales, resources and capacity and we believe further consideration needs to be given as to whether this is the most appropriate and effective route or whether there are other options for reaching a resolution.


  1. The Bill is currently silent on whether it should be open to a relevant person to seek a statement of significant restriction in relation to a person subject to an order under the 1995 or 2003 Acts which currently do not expressly authorise measures which amount to deprivation of liberty. Please give your views on whether these persons should be expressly included or not within the provisions, and reasons for this.

Without expertise in relation to Criminal Justice or community compulsion orders, we do not feel able to make comment on this area.

However, the Scottish Government must give consideration as to how this will apply to individuals living in the community but out-with care homes who may require restrictions to their liberty, in particular those in supported accommodation or in tenancy arrangements.  Given the policy drive to support more people to live in their own homes for longer, we expect to see more people who would traditionally have accessed residential care settings being supported at home.  Therefore consideration must be given and decisions clearly outlined as to how this applies to both individuals in those settings and the professionals operating and involved in those support settings who may have accountability for authorising restrictions.


6.The process to obtain a statement of significant restriction would, as the bill is currently drafted, sit alongside existing provisions safeguarding the welfare of incapable adults, and require the input of professionals already engaged in many aspects of work under the 2000 Act, such as mental health officers and medical practitioners.  Please give your views on the impact this process would have on the way the Act currently operates.

We perceive there to be significant challenges in relation to the viability of implementing this bill on top of existing legislation, as well as to how the various Acts will harmonise and complement each other.  All efforts must be made to make the legislation landscape as clear and simple as possible if it is going to successfully influence practice.

What’s more, the Scottish Government should take steps to cross-check this Bill with other existing health and social care legislation, in order to ensure they are as joined up as possible and are truly protecting the rights of all.  Whilst we know that the most vulnerable in society can be those who are most at risk of having their rights violated, it is important to remember that rights are universal and need to be held in equal regard and upheld fully for everyone.  Therefore the correct balances must be struck if the most positive outcomes are to be realised.

The Scottish Government must also think carefully about the role and input of regulatory bodies such as the Care Inspectorate in understanding and monitoring the appropriate use of SSR’s.




1.Is a process required to allow adults to appeal to the Sheriff against unlawful detention in a care home or adult care placement?


Whilst we fully support mechanisms which enable people to challenge decisions that are not in their best interests, very careful consideration must be given to how this will be perceived and used in practice.

We would hope that decisions to place an adult in a care setting such as a care home are made after comprehensive discussions and assessments, which involve and inform both the individual requiring care and their relatives.  Whilst undoubtedly a move to a care home can be difficult, it should always be taken as a result of a true belief and mutual agreement that it is the best setting for meeting an individual’s health and wellbeing outcomes.  Therefore there should be very few instances where it can be perceived as unlawful detention, given that it is quite different from practice which takes place in relation to restriction within that care setting.  If this instance was to occur, all parties would need to give careful thought as to the intentions behind and outcomes of such a process.

As previously outlined, it could have very negative effects on how different care settings are perceived given that it implies care homes would be somewhere where people were being held against their will.  At a time when we need to be promoting choice for individuals in relation to a range of quality care settings, we need to be very careful not to unhelpfully and unintentionally restrict that choice through inaccurate perceptions of what care in that setting will look like.

Therefore we are not against the inclusion of mechanisms to help people challenge decisions, but would want much more detailed deliberation to be given to this element.

  1. Is the proposed approach comprehensive?


Are there any changes you would suggest?

It’s absolutely vital that this process is accessible, effective and used only in instances where there are very legitimate concerns around unlawful detention, and not just when different parties with a stake in an individual’s care and support are in conflict.



The Scottish Government is also currently consulting on the Draft Delivery Plan 2016-2020 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). That plan includes the following commitment: –

We will consult on the Scottish Law Commissions review of the Adults with Incapacity Act in relation to its compliance with Article 5 of the ECofHR, specifically in relation to Deprivation of Liberty and thereafter carry out a scoping exercise in relation to a wider review of the Adults with Incapacity legislation. All responses to this consultation will be carefully considered as part of the scoping process in relation to a wider review of Adults with Incapacity legislation .

To further assist that process we would therefore welcome responses to the following questions:

  1. Over and above the question of deprivation of liberty considered by the Commission do you believe the 2000 Act is working effectively to meet its purpose of safeguarding the welfare and financial affairs of people in the least restrictive manner?

In most instances it is our belief that the substantial elements of the Act are working effectively. In practice we believe that there needs to be a greater degree of clarity between the inter-relationship between the AWI Act, Adult Support and Protection and the Mental Health Care and Treatment Act, particularly as they may be engaged within a care environment. We would like to see greater evidence that the principles of the Act, particularly best interest, the encouragement of the adult to make his or her own decisions and manage his own affairs, and the development of the skills needed to do so were given greater emphasis in practice. We have anecdotal evidence that too much reliance and trust is placed upon the status of a Guardian without adequate and more frequent exploration of a Guardian’s abilities to exercise the Act’s principles in the fulfilment of their duties.


In summary, it is our hope that additional legislation will not hinder care being given, often due to mental impairment, under difficult circumstances. What is required is a practical, supportive model for delivering care (that might involve appropriate and proportional restrictions on liberty) which enables care staff to provide support in a way that prioritises care over paperwork, but which also protects and promotes the rights and wellbeing of individuals requiring care interventions.


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