New protections for adults with incapacity who may be subject to restrictions on their liberty are recommended by the Scottish Law Commission in a report published today.

In its Report on Adults with incapacity, which includes a draft bill, the Commission considers the Adults with Incapacity (Scotland) Act 2000 in the light of decisions of the European Court of Human Rights in the "Bournewood" case, and the UK Supreme Court in the "Cheshire West" case. "Bournewood" involved the informal detention of a person with learning disabilities; "Cheshire West" set out a specific test for what constitutes a deprivation of liberty in this context for the purposes of article 5 of the Convention.

Scots law already provides a detailed process to ensure that any medical treatment received by a person with cognitive disability is properly authorised. The Commission is recommending that where that treatment is given in hospital and additional measures are adopted to prevent the person from leaving the hospital unaccompanied, the authorisation process should be extended to cover those additional measures. This would mean that restrictions which are considered by the person themselves or by their family to be unnecessary could be challenged.

For care homes and other residential facilities in the community, the Commission recommends a new process for people who cannot make key decisions themselves. The new process seeks to identify the care regimes with the most restrictions, and to provide a level of scrutiny to ensure that all the measures to which a person is subject are necessary for their wellbeing, and are the least restrictive care regime possible.

Finally, the Commission also recommends a procedure for challenging allegedly unlawful detention in settings in the community.

The Commission records that in preparing the report, it has been greatly assisted by input from organisations which promote the rights of individuals with dementia and learning disability, as well as from carers' groups, local authorities, healthcare professionals, academics and lawyers who specialise in mental
health and disability.

Laura Dunlop QC, the lead commissioner on the project, said: “In any individual case where care involves a degree of restraint, questions could arise about whether a person’s freedom has been unduly restricted. Our task in the Law Commission has been to contribute to the maintenance of a system which endeavours to meet the needs and protect the rights of vulnerable individuals in Scotland. We hope our report achieves that goal.”

Click here to access the report.