Chapter Three: Restrictions On A Person’s Liberty
As mentioned in the last chapter, the Scottish Government consulted on the Scottish Law Commission’s report on Adults with Incapacity in 2016. The findings from this consultation were clear in stating that there is a need to ensure a lawful process is in place for those persons who may need to be deprived of their liberty in community or hospital settings and lack capacity to agree to such a placement. Chapter Twelve of this paper will consider hospital settings. We have sought a flexible approach to the matter for community settings.
Firstly, we are in agreement with the approach taken in the SLC report on AWI, namely that deprivation of liberty is not a particularly helpful term and we consider that using the term ‘significant restrictions on liberty’ can more accurately convey the range of measures which can reduce a person’s freedoms and curtail their liberties. 
Much importance has been placed on the Cheshire West case, as mentioned in Chapter One, but analysis of cases since that judgement has suggested further evolution of the jurisprudence in this field. 
We would suggest that significant restrictions on liberty are as much about how a person lives as where the person lives and it is important to distinguish between decisions as to where a person lives and the conditions that should apply there:
- If a regime looks like detention it does not lose that characteristic just because the person does not display opposition. 
- If a regime does not look like detention but the adult displays opposition to staying there, then that should be considered as placing significant restrictions on that adult’s liberty
- A person may be perfectly content to agree to moving to another place of residence but may not agree with aspects of their care there which amount to significant restrictions on their liberty.
- A person may remain in the same residential setting but become subject to changes in aspects of their care which in themselves mean they become subject to significant restrictions on their liberty.
Our starting point is that we consider that a person may be considered as having significant restrictions placed on their liberty if:
- The adult is under continuous supervision and control and is not free to leave the premises;
- barriers are used to limit the adult to particular areas of premises;
- the adult’s actions are controlled by physical force, the use of restraints, the administration of medication or close observation and surveillance.
But measures applicable to all adults living at a given place (other than staff) and which are intended to facilitate the proper management of the premises without disadvantaging adults excessively or unreasonably are not to be regarded as giving rise to significant restrictions (for example standard security cameras).
However, if an adult is able to express their valid consent to a placement, and / or any conditions of that placement, then we consider that that is sufficient for the placement, or the change in conditions to proceed. We consider that where it is clear that a person seeks through words or actions to express their wish to be in a given place and to receive care and treatment in a given manner, that may include significant restrictions on their liberty, then in keeping with the aims of Article 12 of UNCRPD, that wish can be considered as giving valid consent for the purposes of Article 5 ECHR.
We therefore consider that in the first instance, where a placement or change in a care regime is being considered for an adult which may result in them being subject to significant restrictions on their liberty, then every effort should be made to support the adult to understand the proposal and express their view on the matter. The work referred to in Chapter Two, on developing a strategy for support for decision making will form a model for such cases.
If no consent is forthcoming but it is clear that there is no apparent objection on the part of the adult to the move, and all other interested parties are in agreement with the move then a grade 2 guardianship order with appropriate powers can be sought. Grade 2 guardianships will be considered by a Sheriff in chambers or a single legal tribunal member, on the basis of documents received. Chapter Seven provides more detail on this proposal.
If however no consent is forthcoming, and there is objection from the adult or other interested parties, then an application for guardianship at grade 3 may be sought, whereby we suggest that a full hearing in front of a Sheriff, or a tribunal will consider the proposal. Again Chapter Seven provides full detail on this proposal.
If a person has prepared a valid power of attorney with the relevant powers, then with the changes proposed in Chapter Five, we consider that this can be relied upon to authorise a move to a setting where there may be significant restrictions on a person’s liberty.
Chapter Ten proposes the creation of a short term placement order, which may be used to move a person to accommodation at short notice, where no other authority exists, the person is unable to consent to the move because of lack of capacity and there is a need to move the person quickly for their own safety and wellbeing. In addition Chapter Ten proposes an order for cessation of significant restrictions of liberty, to enable a person to raise proceedings to challenge continuation of a placement or conditions in that placement.
We consider that these options should give a range of lawful processes that can be relied upon to authorise placements which significantly restrict a person’s liberty.
Do you agree with the overall approach taken to address issues around significant restrictions on a person’s liberty?
In particular we are suggesting that significant restrictions on liberty be defined as the following;
- The adult is under continuous supervision and control and is not free to leave the premises
- barriers are used to limit the adult to particular areas of premises;
- the adult’s actions are controlled by physical force, the use of restraints, the administration of medication or close observation and surveillance
Do you agree with this approach? Please give reasons for your answers.
Are there any other issues we need to consider here?
Article 12 UNCRPD – Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.