ADULTS WITH INCAPACITY ACT: WHEN TO INVOKE THE ACT SUMMARY

Transcription

1 ADULTS WITH INCAPACITY ACT: WHEN TO INVOKE THE ACT SUMMARY This paper supplements a discussion paper prepared for the Mental Welfare Commission in August That paper, Authorising significant interventions for adults who lack capacity, looked at the use of the Adults with Incapacity Act in certain situations. This paper re-examines some of the issues in the light of the Bournewood judgement of the European Court of Human Rights, and a subsequent decision in the sheriff court in Scotland. Part 2 examines the context and background. Part 3 looks at the Bournewood judgement and its impact. Part 4 discusses the Muldoon judgement in the sheriff court. Part 5 examines the current law and practice in the light of Bournewood. Part 6 considers the way the Department of Health in England and Wales are tackling the issues. Part 7 makes recommendations for change and a summary of the conclusions is contained in Part 8. 1 INTRODUCTION Original discussion paper In August 2004 the Commission published a discussion paper ( the discussion paper ) on the use of Part 6 of the Adults with Incapacity (Scotland) Act. The paper, by Hilary Patrick, looked at when it might be appropriate to apply for a Part 6 order where a significant intervention (often, but not always, involving a move to different premises) is proposed for an adult who is incapable of consenting to the intervention. The paper was intended to be a discussion paper and was not an attempt by the Commission to give legal advice or guidance to those local authorities (or other bodies) which were having difficulties with these issues.

2 The paper suggested that while some commentators appeared to take a universalist approach (that an order should be obtained in every case of significant intervention) there were arguments that a more selective approach could be valid, particularly as this seemed more in accordance with the principles of the Act. The paper recognised, however, that there were some cases where a Part 6 order would always be appropriate. Advice from Scottish Executive In July 2004 the Scottish Executive sent a letter to local authorities and others which appeared to support the selective approach, in the case of local authorities proposing an intervention, at least. For private individuals without a valid welfare power of attorney the law is less clear. Developments since discussion paper Since the publication of the discussion paper, there have been two developments which have reopened the debate and which have resulted in a number of enquiries to the Commission: a The decision of the European Court of Human Rights ( the human rights court ) in Bournewood 1. The court held that a mentally incapable man who was kept in hospital without clear legal authority was unlawfully deprived of his liberty within Article 5 of the European Convention on Human Rights ( ECHR ), even though he made no attempt to leave and appeared compliant with the regime in hospital. b The decision of Sheriff Baird in Muldoon 2 that a guardianship order was necessary to fill a legal vacuum wherever an incapable adult is moved to a new home, regardless of whether or not the adult is compliant with the move. This paper updates Ms Patrick s paper in the light of these developments. It examines the Bournewood and Muldoon judgements and considers their impact. It examines proposed changes to the Mental Capacity Act in England and Wales in response to the Bournewood judgement and suggests ways in which Scottish law and practice may have to be reformed to meet the Bournewood challenge. 2

3 Terminology In this paper the term adult means an adult who is unable to consent to a proposed intervention because of his/her mental disorder. This paper refers to detention and deprivation of liberty. The former is more familiar in Scots law. The latter is the term used in the ECHR. In this paper the terms are interchangeable. 2 BACKGROUND AND CONTEXT Applies to compliant adults Bournewood deals with the detention of an apparently compliant adult in England. The human rights court held that to detain him in hospital under the common law doctrine of necessity was not compatible with his human rights. The court s decision has implications not just for adults detained in hospital, but for every situation where the care arrangements for an adult who lacks capacity to consent could constitute detention. This could apply both to adults in care homes and to some adults living in their own homes. Need for estimate of numbers It is not known to how many adults this could apply. The Mental Welfare Commission considers that it would certainly be many thousands 3. Alzheimer Scotland 4 has estimated that there were around people with dementia living in care homes in Scotland in September The Royal College of Psychiatrists, in its response to the Bournewood consultation in England and Wales, says that the numbers could be very considerable 5. The 2003 census showed around 2600 people with learning disabilities, 1000 people with mental health problems and 1000 people with other disabilities (excluding physical disabilities) living in care homes in Scotland in September These figures do not include temporary admissions, which would also be subject to Bournewood scrutiny. It is not known how many of these residents would be regarded as incapable of taking a decision to be in the care home, nor how many are receiving care which 3

4 could constitute detention along the lines set out in the Bournewood decision. Further research / consultation may be necessary to indicate the numbers of people who could be affected. Impact of Muldoon The Muldoon judgement appears to go further than Bournewood. It appears to suggest that to attempt to change an adult s residence without seeking an appropriate order under Part 6 of the Act will always be a breach of the adult s human rights, even if the care arrangements do not constitute a deprivation of liberty within Article 5. Indeed the sheriff in Muldoon confirmed this interpretation in a subsequent judgement (see para 4 below). 3 THE BOURNEWOOD JUDGEMENT Facts of case A young man with autism ( L ) was living in the community with paid carers. When he became ill at his day centre he was admitted to hospital urgently. It was not possible to contact his carers, whose consent was not sought. L was kept in hospital without his consent. He was incapable of giving or withholding consent. He was sedated and kept under close supervision. His carers were not allowed to visit him, as it was thought he might become disturbed and wish to leave. Eventually he was detained under a section of the Mental Health Act and he finally left hospital after five months. The carers complained to the High Court, which held he had not been unlawfully detained, and then to the Court of Appeal, which held he had 7. The hospital trust appealed to the House of Lords 8. The House of Lords overturned the Court of Appeal. It held that that L had not been unlawfully detained, because he had been admitted and kept in hospital under the common law doctrine of necessity, in his best interests. L appealed to the European Court of Human Rights. Decision of human rights court The human rights court held that L had been unlawfully deprived of his liberty in breach of Article 5 of the ECHR. Admission under common law did not provide adequate procedures for authorising and reviewing detention. Moreover, L had no right of appeal against his detention, required by Article 5(4). 4

5 The court had to consider two questions, what constitutes deprivation of liberty? 9, and secondly, if a person is detained, what does the ECHR require by way of safeguards? What constitutes deprivation of liberty? i House of Lords The House of Lords had considered whether the tort of false imprisonment had been committed against L. They held, by a majority of three to two, that it had not. The tort of false imprisonment requires an actual, not a potential, deprivation of liberty. This had happened only on brief occasions, such, for example, as when L was taken by ambulance to the hospital. On other occasions he was not kept in a locked ward and was, in theory, free to go, even though the hospital staff kept him sedated and were clear that, should he attempt to go, they would detain him under the Mental Health Act. Lords Steyn and Nolan, however, while agreeing that L s detention had been lawful, took the view that he had been detained. Lord Steyn dismissed the interpretation that L had been free to go as a fairy tale. He highlighted the effective power the staff exercised over him, the lack of access to his carers and the fact that he was under continuous observation by staff. The truth is that for entirely bona fide reasons,., any possible resistance by him was overcome by sedation, by taking him to hospital, and by close supervision of him in hospital. And, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. Lord Steyn said that, while it was unnecessary to attempt to define detention, this case fell on: the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty. Lord Nolan highlighted the hospital s refusal to allow L s carers to take him back home. He quoted with approval remarks of the Court of Appeal: 5

6 If they [hospital staff] were not prepared to release L into the custody of his carers they were not prepared to let him leave the hospital at all. He was and is detained there. However both Lord Steyn and Lord Nolan agreed with their colleagues that L s detention was justified in his best interests. ii European Court of Human Rights The European Court of Human Rights had to decide was whether L was deprived of his liberty within the meaning of Article 5(1) of the ECHR. The criteria were not the same as those for the tort of false imprisonment, considered by the Lords. In particular, the fact that the restraint of liberty was potential, rather than actual, was not of crucial importance under ECHR. The court dismissed the UK government submission that a person could not be detained if s/he did not know s/he was detained, for example because of incapacity. It said that the right to liberty was: too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention..especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. The human rights court stressed the importance of deciding each case on its merits. No one factor was determinative 10. In particular, whether a hospital ward or care home is locked or unlocked was not regarded as crucial to the question. The court stressed that in deciding whether a person has been deprived of his/her liberty, the starting-point should be the situation of the individual concerned. Account must be taken of a whole range of factors, such as the type, duration, effects and manner of implementation of the measure in question 11. A number of factors led the court to decide that L had been deprived of his liberty within Article 5(1): a b The health care professionals treating and managing him exercised complete and effective control over his care and movements. All contact with his carers was directed and controlled by the hospital. 6

7 c d He was under continuous supervision and control, and had he attempted to leave, he would have been stopped. The degree and intensity of controls exercised were such as to amount to a deprivation of liberty 12. What safeguards does ECHR require? It was not the fact that L had been deprived of his liberty that was the breach of his human rights, but that his detention did not comply with Article 5 of the ECHR. The ECHR does, of course, allow for the detention of persons of unsound mind provided that the detention is lawful and it is carried out in accordance with a procedure authorised by law. In addition, the patient must be told the reasons for the detention; and must have a right of appeal to a court. i Detention must be lawful In the leading case of Winterwerp v Netherlands 13 the court said that to justify the detention on the grounds of unsound mind it must be established that: There is reliable (and recent 14 ) evidence of mental disorder. This will generally mean that a medical examination of the adult must have taken place before the detention takes place, unless there is an emergency 15. It is not clear whether the examination can be by a GP or must be by a consultant psychiatrist 16. The mental disorder must be of a kind or degree which warrants compulsory confinement, for example if the patient needs protection from causing harm, either to him/herself or to others 17. The validity of the continued confinement will depend on the continuance of the disorder. This means that there must be a review of the patient s detention available at reasonable intervals, since the reasons initially warranting such confinement might have ceased to exist 18. In Bournewood the need for continuing clinical assessment of the patient was highlighted. To ensure that there is some relationship between the ground of deprivation of liberty and the place and conditions of detention, the detention must be in a hospital, clinic, or other appropriate institution authorised for the detention of persons of unsound mind 19. 7

8 ii There must be a procedure authorised by law The elements of lawfulness and lawful procedure are often conflated. The first requires that the detention must be authorised under the local law with sufficient certainty to allow an adult to know whether s/he might be subject to it. The second requires a lawful and accessible procedure, to protect against arbitrary detention. In Bournewood the human rights court said that the common law of necessity passed the first test. It was sufficiently clear and certain to provide a legal basis for detention. However the common law lacked procedural safeguards, such as admission procedures, time limits, representation, and rights of appeal and review, to protect L against arbitrary detention. His detention was, therefore, a breach of his rights under Article 5(1). iii Person must be told the reasons for detention Article 5(2) provides that the person detained must be told the reasons for his/her detention, to enable him/her to decide whether to exercise his/her rights of appeal under Article 5(4) 20. iv S/he must have a right of appeal Under Article 5(4) a person who is detained or arrested must have the right of speedy access to a court to appeal against the detention. A court could also include a Tribunal 21, such as the Mental Health Tribunal for Scotland. The appeal need not constitute a complete re-examination of the facts of the case, but it must allow the court to consider whether the adult continues to suffer from a mental disorder which justifies his/her detention. In Bournewood, the human rights court held that the remedies of judicial review and habeas corpus did not provide L with an adequate right of appeal under Article 5(4). The right of appeal under Article 5(4) complements the Winterwerp requirement that the detention should last only so long as the mental disorder lasts (see above). What is speedy access to the court is a question of fact 22. Clearly if there is evidence of a change in the patient s condition, a speedy review would be needed 23. If the law provides a means of automatic review, any procedures must be taken speedily and in accordance with time limits laid down by the national law 24. If the adult is unable to exercise his/her rights of appeal because of mental disorder, an automatic right of appeal may be necessary. 8

9 4 THE MULDOON JUDGEMENT Facts of case Muldoon was an application for financial and welfare guardianship by the relative of an adult who had already moved to a care home. Neither the MHO nor the safeguarder supported the application for welfare guardianship, regarding it as an unduly restrictive option as the adult appeared settled in the care home. The sheriff did not specifically consider the question of whether the adult was detained within Article 5. He noted that she was held in a locked facility but also noted that she seemed happy there and made no attempt to leave. The sheriff s ruling The sheriff ruled that the effect of Bournewood was that if an adult is legally incapable of consenting to or disagreeing with a change of residence, s/he is deprived of his/her liberty within Article 5. This should not be done without express statutory authority. He therefore granted the guardianship order, which he said was the least restrictive alternative. In a later case, Docherty 25, the same sheriff made it clear that a statutory warrant should be obtained for all patients lacking capacity to consent who are resident but compliant, including patients in hospital. Impact of ruling The decision of the sheriff is not binding on other courts, but clearly these decisions need to be given due consideration. The sheriff appears to have taken the approach that placing the adult in a locked facility was automatically a deprivation of liberty. He did not examine in any detail the care arrangements in place for her, to determine whether they constituted a deprivation of liberty. In contrast, the human rights court was very clear that no one factor is determinative. All the facts should be taken into account in considering whether an adult is deprived of his/her liberty within Article 5(1). The sheriff was more concerned with the legal basis for making a significant intervention in an adult s life. He concluded that to move an adult s residence without his/her consent was a breach of the person s Article 6 rights. This constituted a 9

10 deprivation of the adult s liberty within Article 5. The sheriff did not go on to consider whether this deprivation of liberty was lawful under Winterwerp. The sheriff s approach differed from that of the European Court of Human Rights. That court does not use Article 6 to deal with cases involving deprivation of liberty unless, as in Winterwerp, there has been interference with other civil rights of the adult, such as his/her right to manage finances. The human rights court has generally appeared more concerned with the care arrangements in the place of alleged detention rather than the procedure whereby the detention was authorised. Thus we saw how in HM v Switzerland and Neilson v Denmark 26 even moves made against the will of a competent person were not deemed to be a deprivation of liberty, because the new care arrangements did not amount to detention. It is not clear, therefore, whether the sheriff s finding that an apparent breach of Article 6 led to a deprivation of liberty within Article 5 is supported by Bournewood. 5 ECHR AND CURRENT LAW AND PRACTICE IN SCOTLAND Introduction In this section we examine how current law and practice in Scotland meets the ECHR requirements. We have seen that for detention of persons of unsound mind to be lawful, the following conditions must be satisfied: a There must be reliable evidence of mental disorder. b The mental disorder must be of a kind or degree which warrants compulsory confinement. c The validity of the continued confinement will depend on the continuance of the disorder. d The detention must be in a hospital, clinic, or other appropriate institution authorised for the detention of persons of unsound mind. e The detention must be carried out in accordance with a procedure authorised by law. f The person or their proxy must be told the reasons for the detention. 10

11 g There must be a right of appeal to a court or tribunal. h There must be regular review of detention. In this section we look at whether the Social Work (Scotland) Act or the good practice procedure suggested in the original discussion paper could be used to authorise detention. We look at problems which can arise even if an order under Part 6 of the Adults with Incapacity Act is obtained. We consider the impact of the rules on detention by private carers and whether the situation differs if a carer has been given a welfare power of attorney. Finally we consider two new procedures available under Mental Health (Care and Treatment) (Scotland) Act 2003, the advance directive and the community treatment order. Detention under Social Work (Scotland) Act It was suggested in the original discussion paper that there might be occasions where a local authority might use its powers under the Social Work (Scotland) Act to change an adult s care arrangements provided to do so would comply with the principles of the Adults with Incapacity Act 27. However, if the care provided could amount to detention, this could be challenged under ECHR. The Social Work Act does not contain a procedure for detention or provide rights of appeal. Detention under administrative procedure in discussion paper Similarly the administrative procedure outlined in the original discussion paper 28. would not be acceptable for ECHR purposes if the adult is to be deprived of his/her liberty, for the reasons given above. Detention where Part 6 order obtained It has generally been assumed that an order under Part 6 of the Adults with Incapacity Act will comply with ECHR requirements, even after Bournewood. However both the Act and current practice now need to be examined to determine whether they provide adequate safeguards in respect of the detention of incapable adults. There are two concerns, the lack of any specific authority to detain in the Act, and the lack of any procedure for automatic appeal. In addition, there are concerns about the impact of Bournewood on the recall provisions of the Act. 11

12 i Unclear whether Adults with Incapacity Act authorises detention Bournewood makes it clear that, if a person is to be deprived of his/her liberty, the legal basis for this should be clear. It has to be asked whether the Adults with Incapacity Act provides a clear legal basis for detention. The Act contains a mixture of very general and very specific powers. The general power states that the sheriff can grant a guardianship order dealing with all aspects of the personal welfare of the adult 29. This gives the sheriff very wide power to make orders tailored to the needs of the patient. It would clearly include a power to arrange for the adult to have live in a certain place, possibly under care arrangements which could constitute detention. The Act also gives the guardian very specific powers to act if the adult does not comply with the guardian s instructions. The guardian can arrange for the return of the adult to the place where s/he is required to live 30 and can obtain a court order requiring the adult to comply with the decisions of the guardian 31. However, while the Act does not limit the use of force or detention by a guardian 32, neither does it specifically entitle the guardian to restrain or detain the adult against his/her will. This omission is particularly significant in the light of the Act s detailed procedures provisions for default by the adult. It could be argued that if Parliament had intended to give guardians the power to detain or restrain it would have spelt this out. The Scottish Executive s Code of Practice for guardians does not envisage the use of force or detention by guardians. It says that on occasions a guardian may have to insist on having his/her way, but it links the use of compulsion to the procedures set out in s70 of the Act 33. Alternatively, it suggests, a guardian may wish to seek directions from the sheriff. It is interesting to note that Adrian Ward does not include the power to detain or restrain in the specimen powers of welfare guardians set out in Adult Incapacity 34, although the power to determine residence is, of course, included. The Scottish Executive should give further consideration to whether it is appropriate to use guardianship to authorise detention or restraint, particularly against the will of the adult. While it might be appropriate to use guardianship to authorise care arrangements which amount to detention as clarified in Bournewood, further 12

13 consideration may need to be given to whether it is appropriate to use guardianship where regular force or detention is required. Guidance should suggest that if powers of restraint or detention are required these should be spelt out in the application. These powers should not be assumed from a grant of a general power to deal with all aspects of the adult s welfare 35. ii Lack of procedures for appeals There is also concern whether Part 6 contains adequate provisions for appeals as required by Article 5(4). So long as the adult remains subject to guardianship, s/he can apply to the sheriff at any time for recall of the guardianship 36. The local authority and the Mental Welfare Commission may also recall the guardianship. However unlike the new Mental Health Act, the Adults with Incapacity Act contains no provision for automatic reviews at regular intervals. The Court of Appeal has considered similar provisions in the Mental Health Act It held that where an adult is unable to exercise his/her rights of appeal because of mental disorder, the law should provide an automatic appeal 37. This case is being appealed to the House of Lords. The outcome may require an amendment to the Adults with Incapacity Act. iii Impact on recall of guardianship So long as an adult remains incapable of taking decisions and continues to need a protective regime amounting to detention, it might be difficult for a sheriff (or the Mental Welfare Commission) to discharge the guardianship. Once the guardianship has been recalled there will be no further formal continuing reviews or assessments of the adult s needs and the adult will have no legal forum to consider the continuing need for detention. This would be a breach of the adult s human rights under requirements 3, 7 and 8 above. This could have a significant effect on resources. As new guardianship orders are made and fewer guardianships are discharged, it may become difficult for local authorities, the Public Guardian and the Commission to meet their statutory duties of advice, supervision and visiting within existing resources. 13

14 Detention by carer While private individuals and carers intervening in the lives of adults with incapacity are not subject to the ECHR restraints, both local authorities and national governments have responsibilities to ensure that vulnerable adults human rights are not breached. Under Article 1 of the ECHR national governments are required to secure for their citizens the rights set out in the Convention. This means that the Scottish Executive would be required to protect adults with incapacities from wrongful detention 38. In addition, it is unlikely that a local authority, as a public authority, could condone any detention of an adult without ensuring that adequate safeguards are available under ECHR. For example, a local authority may be required to make an assessment for free personal care prior to an adult s move to a care home. If the authority is aware that the care arrangements for the adult could constitute a deprivation of liberty, it could be criticised if it does not ensure compliance with EHCR requirements, especially given its responsibility to apply for a Part 6 order if one is necessary 39. If carer has a power of attorney It would probably not be appropriate for a local authority to intervene if a carer has a valid power of attorney authorising the intervention. One reason for granting a power of attorney with welfare powers is to enable the attorney to consent on behalf of the adult to future care arrangements for the grantor. This might include arrangements which could amount to a deprivation of liberty within the Bournewood definition, where the adult appears to comply with the move. It is perhaps unfortunate that the Act does not spell out the attorney s powers in respect of the use of detention by an attorney. Nor is it clear how whether an attorney can use or authorise the use of restraint, if the adult appears to wish to leave the place of residence. In contrast, the Mental Capacity Act 2005 for England and Wales, which was passed after the Bournewood decision, spells out the attorney s rights to use restraint, and prohibits the use of restraint which amounts to detention 40. The 2000 Act contains no specific limitation on the use of force or detention by an attorney carrying out his/her duties 41, but such a power cannot be implied. Any 14

15 attorney who believes s/he needs to use force, restraint or detention needs to be sure the power of attorney document authorises this. Mental Health Act and detention i Advance directives New forms of advance directives (called advance statements) have been introduced in s275 of the Mental Health (Care and Treatment) (Scotland) Act. Doctors and tribunals dealing with patients under that Act have to have due regard to any such directives. Clearly any advance statement would be an expression of the patient s wishes and should be given due weight under the Adults with Incapacity Act. Unfortunately it is not clear whether a person can consent to what might amount to a deprivation of liberty, particularly in light of the statements of the European Court of Human Rights that ECHR protections apply even where a person purports voluntarily to surrender his/her liberty 42. On the other hand it could be argued that an individual should have the right to make his/ her own arrangements for the future, in accordance with his/her rights to a private life under Article 8. We will not know whether it is possible to use an advance directive or power of attorney to consent to a possible deprivation of liberty until the matter is tested in the courts. ii Community treatment orders Some local authorities may consider using community based compulsory treatment orders (CTOs) under the new Mental Health Act 43 in preference to Part 6 orders. A CTO may be more appropriate if the adult is not compliant with the care arrangements proposed, insofar as these relate to treatment for a mental disorder. If difficulties with Part 6 lead to an increased use of CTOs for compliant adults, this would shift the issue of resourcing to the new Mental Health Tribunal for Scotland, which might become swamped with applications. In addition, the use of the Mental Health Act where an adult is not resisting the intervention could be seen to be a breach of the principle of minimum necessary intervention. If it is considered inappropriate and disproportionate to use a CTO for a compliant adult, it may be that a new procedure, specifically designed to meet the requirements of Bournewood, would be less cumbersome than trying to adapt the Part 6 provisions to meet Bournewood. This appears to be the preferred approach south of the border. 15

16 6 PROPOSALS FOR ENGLAND AND WALES The Mental Capacity Act 2005 for England and Wales was passed after the decision in Bournewood. Attempts were made to modify it in the light of the human rights court s decision, but there was insufficient time within the Parliamentary timetable. Some aspects of the Act may be of interest in Scotland. In particular, despite criticisms of the proposed general authority, the government insisted that it was important to clarify the rights and duties of carers and treatment providers. The general authority is now cast as an indemnity for carers and treatment providers, including statutory and voluntary agencies. A person offering care or treatment will incur no liability if s/he acts in what s/he reasonably believes to be the best interests 44 of an adult, if s/he reasonably believes the adult lacks capacity in relation to the matter, having taken reasonable steps to establish this 45. The indemnity extends to the use of restraint, provided that the person restraining reasonably believes that this is necessary. The restraint must be a proportionate response to the likelihood of the adult suffering harm 46. (The use of restraint to protect third persons is not permitted under the general indemnity.) Restraint which amounts to a deprivation of liberty within Article 5(1) ECHR is not permitted 47. Further procedures will have to be used if detention is envisaged. The revised general indemnity could be used to make significant interventions in an adult s life, including a move to a care home (by either a carer or a local authority) if the adult will suffer no deprivation of liberty. The adult can appeal to the court to ask it to review any such action 48, but in general the only automatic procedure to protect the adult s interests will be the involvement of independent advocacy. An advocate must be appointed if there is no other appropriate person to represent the adult s interests 49. The Act also provides for the creation of welfare attorneys and the appointment of court appointed deputies to take welfare decisions. However neither an advocate nor a deputy can take steps which would deprive the adult of his/her liberty 50. The Department of Health is currently consulting on the appropriate protections for adults who need protective care which may involve deprivations of liberty 51. The consultation will finish in June

17 7 POSSIBLE WAYS FORWARD In this section we suggest ways in which practice and procedure may have to be modified in Scotland in the light of the Bournewood judgement. Possible ways forward include new guidance from the Scottish Executive on what constitutes detention, and, if Part 6 remains the preferred option, the need to simplify and speed up procedures when the intervention is unopposed. Alternatively a new procedure, as is being suggested for England and Wales, may be preferable. This would resolve with the problems of when it is appropriate to use Part 6 of the Act, as outlined in the original discussion paper. Scottish Executive guidance on Bournewood i Need for further guidance Further guidance from the Scottish Executive, clarifying when restraint and care could constitute detention, would be helpful. The MWC guidelines on Rights, risks and limits to freedom 52 will also need to cover these issues. The Department of Health has produced some interim guidance 53. This recommended, among other things: ensuring that any restrictions are the minimum necessary in the circumstances, giving adults and their carers information as to how decisions can be challenged or reviewed, and ensuring that assessments of capacity and the care plan are kept under review. ii Consider care regime Some hospitals or care homes may use the Bournewood judgement to consider the restrictiveness of the care they offer and whether the restrictions imposed are necessary. This would, of course, be in accordance with the principle of minimum necessary intervention in the Adults with Incapacity Act and in line with their own professional and organisational responsibilities. However certain adults will need to be subject to the same degree of intensity of care and control as was used in the case of L. If an adult s movements are sufficiently restricted, this may amount to detention within Article 5(1). Clearly care home providers and local authorities authorising care packages will need to consider these questions when they are arranging care for individuals. Individuals and carers will also be concerned. 17

18 Among the matters to consider when establishing whether particular arrangements are likely to constitute detention would be: a b c d e f g The degree and intensity of controls to be exercised over an adult s movements. For how long it is envisaged these controls might be needed. The intentions of those controlling the adult. If their intention is that, should the adult attempt to leave, s/he will be stopped, the adult may be detained, even if s/he does not attempt to leave or is generally persuaded not to leave. How the controls are to be exercised. Physical restraints can amount to detention, as can the use of sedation and observation. What access to the outside world the adult is likely to have. Whether the cumulative effect of restrictions on the adult s life could amount to detention. Whether the adult is likely to indicate a wish to leave. If this is likely and the adult will be restrained from leaving, there will be little doubt s/he will be regarded as detained. (It is more complex if a person does not attempt to leave or makes an uninformed attempt to leave, perhaps because s/he does not understand where s/he is or where the door leads to54.) Consideration of AWI principles will assist in clarifying whether restrictions are necessary, but there may be a need to seek legal advice in individual cases. iii Distinguish between restricting liberty and detention The Royal College of Psychiatrists points out that the human rights court made a distinction between restriction of liberty and deprivation of liberty. It suggests that to prevent an adult leaving a building in the interests of his/her health and safety might be a restriction of liberty but might not amount to detention. It suggests that particular concerns should be addressed to situations where an adult is being deprived of his/her liberty, as opposed to having his/her liberty restricted in his/her own best interests 55. iv Consider capacity We saw in the original discussion paper that some local authorities have developed expertise in assessing whether an adult can be regarded as capable of consenting to an intervention, by the use of communication techniques, the use of non-verbal 18

19 communication etc 56. This is within the principles of the Adults with Incapacity Act, but Article 5 will remain relevant even if the adult is regarded as consenting to arrangements which could involve the deprivation of his/her liberty. If the adult is incapable of agreeing to the regime and the arrangements could constitute detention, a Part 6 order should be applied for. Where there is no detention it is less clear that Bournewood requires an order, although Muldoon may suggest otherwise. Until the situation is clarified, local authorities or private individuals who have concerns about the impact of Bournewood should seek legal advice. Reconsideration of Part 6 in light of Bournewood It is understood that the Scottish Executive is considering what further safeguards may be needed in order to comply with ECHR law. Amendments to the Adults with Incapacity Act may be necessary. It would be hoped that any reforms could be designed to provide real benefits to adults to whom they are apply, rather than simply filling the Bournewood gap. Part 6 of the Act needs to be reconsidered in the light of the Bournewood judgement. Particular consideration should be given to its use as a means of authorising restraint and detention. The Act may also need to be amended to ensure that it provides for automatic appeals if the House of Lords holds that this omission is in breach of ECHR. Such an amendment is particularly important in the light of recent figures received from the MWC. These have shown that large numbers of guardianship orders are now being granted for indefinite periods. Vulnerable adults subject to severe restrictions on their civil liberties should be entitled to regular reviews of these restrictions. Simplifying procedures If Part 6 orders are the preferred option, the procedures for obtaining orders could be simplified, by primary legislation if necessary, where there is no suggestion of opposition to the proposed move by any of the relevant parties. 19

20 New intermediate procedure The Adults with Incapacity Act does not sit easily with the Bournewood judgement. It may be that a new procedure, specifically designed to comply with ECHR requirements, would be preferable. The Act could be amended by introducing a new intermediate procedure for authorising certain welfare decisions, including decisions which involve the provision of protective care for certain adults. A suggested procedure was outlined in the discussion paper 57 The new procedure could also cover changes of residence which do not amount to detention, thus dealing with some of the issues raised in the discussion paper. An intermediate procedure authorising detention would require recent medical input confirming that the measures were necessary, but not necessarily formal reports 58. There would have to be regular reviews and formal right of appeal. (The Department of Health has suggested that, to reduce costs, a first tier review, perhaps by a social worker or clinician, might reduce the need to involve the courts 59.) Alternatively, section 291 of the Mental Health (Care and Treatment) (Scotland) Act, which gives patients detained in hospital the right to appeal against effective detention, could be extended to residents of care homes. 8 CONCLUSIONS We have seen above that the Bournewood case concerns the question of detention within Article 5 ECHR. It is not concerned with cases where there is no detention. Bournewood deals with detention in hospital. This raises questions outside the scope of this paper. Clearly the Scottish Executive will have to consider whether existing procedures for detention of compliant adults in hospital can appropriately be dealt with under the Adults with Incapacity Act or whether in future they should be dealt with under the Mental Health Act or a new procedure. Bournewood does not, of itself, render the arguments in the discussion paper invalid. The paper accepted that an order should always be used in cases of detention 60. What was not clear was what constituted detention. It is this that Bournewood has helped clarify. 20

21 If there is no question of detention, therefore, the arguments concerning the adoption of a selective or universal approach, as outlined in the discussion paper, remain valid, although Muldoon suggests otherwise. However the effect of Bournewood is that many care arrangements (both in hospital and in the community) which involve significant restrictions on an adult s freedom, may be regarded as depriving an adult of his/her liberty. Legal safeguards will be required if it is not considered appropriate to apply for a Part 6 order in every case. We have seen that there is no information about the numbers of people who may be affected. Further research or consultation with relevant organisations may be necessary. Further guidance from the Scottish Executive, clarifying when restraint and care could constitute detention, is needed. The 2000 Act needs further consideration in the light of Bournewood. If Part 6 orders are to be used in all cases, the procedure needs simplification, particularly if the application is unopposed. However there is a strong argument for an intermediate procedure specifically designed to meet Bournewood requirements. The Scottish Executive may need to consult further. The aim should be to find a solution which reflects the principles of the Act. It should provide a benefit to the adult, it should be as unrestrictive as possible, it should maximise the ability of the adult to take his/her own decisions and it should offer adequate weight to the views of the adult and the expectations of carers. There could be concern that an expensive, court based approach would fail this test. NOTES 1 HL v UK European Court of Human Rights October Glasgow Sheriff Court, W 37/04. 3 Estimates from England are that around people might fall within the Bournewood gap (excluding temporary admissions). This would mean that around people in Scotland could be affected (See Bournewood Consultation, Department of Health March 2005.) 4 Based on statistics supplied by the Scottish Executive. 5 The Royal College of Psychiatrists Response to the Bournewood Consultation June 2005, para Scottish statistics OnLine. 7 R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 2 WLR R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] AC

22 9 See also discussion paper, pages The case law bears out this approach. In Ashingdane v UK A 93 (1985), A was subject to an order under the Mental Health Act. He was kept in an unlocked ward and later left the hospital on leave of absence. He was regarded as detained in hospital. In Neilsen v Denmark (1988) 11 EHRR 175, a twelve year old boy, who had no identifiable mental illness, was place in a locked psychiatric ward against his will, on the directions of his mother. When there he had freedom to come and go. He was not regarded as detained. In HM v Switzerland, 39187/98 26 February 2002,an elderly woman was taken to a care home, despite her protests. The court held that she was given considerable freedom in the home and there was no deprivation of liberty. 11 Ashingdane (above). 12 Even though the care arrangements in L s home and at the day centre were naturally restrictive, the degree or intensity may not have been such as to amount to detention. It has been suggested that the tests are different when a total institution, such as a hospital, is involved. (See Making sense of Bournewood. Journal of Mental Health Law July 2005, The authors represented L at the Court of Human Rights.) 13 A 33 para 45 (1979). 14 Zyzko v Poland /97 (In decision as to admissibility of proceedings, 2001.) 15 X v UK A 46 (1981). 16 Schuurs v Netherlands No 10518/ House of Lords in Reid v UK 50272/99 (2003) at para Winterwerp (above) para 55. See also X v UK 1981 Series A no. 46, p. 23, para 52. In Herczegfalvy v. Austria A 244 (1992) the court held that intervals of fifteen months and two years were not reasonable intervals, particularly in the light of the numerous requests for release made by Mr Herczegfalvy. 19 Ashingdane v UK (above) at para 44. In Aerts v Belgium (1998) 29 EHRR 50 at para 46, the reference was to premises being appropriate rather than authorised. 20 Although Article 5(2) refers only to persons who are arrested, not those who are detained, in Van der Leer v Netherlands A 170-A paras (1990) the court concluded that it should also apply to those who are detained. See also X v UK A 46 (1981) at para In X v UK (above) a Mental Health Review Tribunal in England was held not to have the characteristics of a court as it had power only to recommend discharge of a patient. The law was reformed in the 1983 Mental Health Act to bring MHRTs within the Article. 22 In E v Norway EHHR 567 it was held that an eight week delay in hearing Mr E s appeal was too long. Delays before the English Mental Health Review Tribunals have also been criticised by the Human Rights Court. 23 M v FRG No 10272/83 DR 104 (1984). 24 Keus v Netherlands A 185-C para 24 (1990). 25 AW/56/ See footnote See page See p In s64(1)(c). 30 Under s70 of the Act. 31 The Scottish Law Commission was clear that a guardian should not have the power to detain the patient in hospital. (Report on Incapable Adults, para 6.99.) 32 Unlike, for example, the limits on doctors acting under their general authority under s47(7). 33 Adults with Incapacity Act Code of Practice for Persons authorised under Intervention Orders and Guardians Scottish Executive March 2002, paras 5.49, ,

23 34 See para See Report on Incapable Adults Scottish Law Commission, para Under s71 of the Act. 37 R (on the application of MH) v Secretary of State for Health [2004] EWCA Civ See X and Y v Netherlands A 91 para 23 (1985), where the state was held liable because its criminal law did not allow the prosecution of a person who had allegedly assaulted a woman with a learning disability. 39 Under s57(2) of the Act. 40 Mental Capacity Act 2005, s Contrast the limitation on doctors in s47(7). 42 (See para 00). 43 See Part 7 of the Act. 44 Defined by reference to standards similar to the Adults with Incapacity Act principles, including respect for the wishes of the adult and least restrictive alternative. 45 Mental Capacity Act 2005, s4. 46 Mental Capacity Act, s5. 47 Mental Capacity Act, s5(5). 48 Under s15 of the Act. 49 See ss38 and 39 of the Act. 50 Mental Capacity Act, ss11(6), 20(13). 51 See 52 Mental Welfare Commission, November MBBournewood.Advice@dh.gsi.gov.uk 54 Attempts to leave are not critical, however. The adult in Bournewood was held to be detained although he did not attempt to leave. 55 RCP Response to Bournewood, see footnote 00 para See page Page Medical input when nursing care is envisaged is a requirement of the community care legislation. Social Work (Scotland) Act 1968, s12a(3). 59 See Department of Health, Bournewood consultation, (above) para See p19. 23