Guidance on the operation of incapacty law in Scotland in the light of the Cheshire West ruling by the UK Supreme Court has been published by the Mental Welfare Commission for Scotland.
According to the Commission, the decision, on when a person may be said to be "deprived of liberty" for the purposes of the European Convention on Human Rights, "considerably broadens existing interpretations in Scotland which have been held, for the most part, by health and social services". While the Scottish Law Commission is due to report this autumn on proposed legislative changes, services need to operate within the existing statutory framework, and be informed by the developing caselaw.
In short, the Commission "believes that what was good practice before the Cheshire West case will in large part remain good practice now, but that the decision makes it even more necessary that there is a proper and auditable process for taking decisions on care arrangements for people who lack capacity, and that this process fully reflects the principles of the [Adults with Incapacity (Scotland) Act 2000", the guidance states.
Where it is then determined that an application for welfare guardianship should be made, "it is important to identify any particular measures which may constitute or contribute to a deprivation of liberty, ensuring that
the measures are necessary and justified, and seeking specific authority in the order".
The Commission warns that local authorities should take more care than is sometimes the case to observe 2007 guidance on undertaking care planning, including arrangements for monitoring and review.