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07th August 2016

Deprivation of Liberty Legislation in Scotland

The Scottish Government has released a report on consultation responses to proposed changes in Incapacity Legislation.

The Scottish Law Commission is considering a Bill which would bring changes to the Adults with Incapacity (Scotland) Act 2000, specifically in regard to issues about deprivation of liberty for adults when in hospital or the community. Respondents to the consultation were from a wide group of professionals, organisations (both public and private), regulators, and third sector bodies.

Overall Review

The responses indicated that there was wide support for more thorough review of the 2000 Act. A majority of responses thought that the legislation was, at present, not working effectively and needed to be changed.

While seeking not to increase an already excessive workload, responders thought that a more graded form of guardianship would be more helpful, beyond the existing measures of powers of attorney and guardianship.

The need for short-notice orders to deal with emergency situations was brought up, as was the need to move away from court-based decisions to a specific tribunal approach.

Better Planning

Arrangements for admission and discharge to hospital and other settings raised concerns. Respondents thought that there was often no involvement of guardians or people with power of attorney. There was vagueness involved in reasons for admission, and for reviews. Arrangements for discharge were often equally uncertain. Measures could be authorised by a single medical practitioner, without the same checks and balances as in admissions under the Mental Health (Care and Treatment) Scotland Act (2003). A number of responses expressed concern about there being no direct way of informing people about their rights of appeal, and of the need for independent advocacy to be available, to allow people to express their views.

Greater involvement of the person themselves, and a need to emphasise a minimal intervention approach was raised. There were mixed views about locking a front door, and whether there would also need to be additional safeguards for the person and for other people receiving a service. Some thought locking doors was a reasonable precaution in any event, others though it might be subject to abuse.

The Bill also proposed a new description of 'significant restriction of liberty', and while some though this was satisfactory, other thought it was confusing, a backward step and could be subject to abuse. In responses to the question, people thought that a social worker was preferable to a care service manager being the relevant person.

A need for change

This review has shown an overall need for a review of the Adults with Incapacity (Scotland) Act 2000, and the high workload of staff implementing the protective legislation. The need for a specialist tribunal is welcomed in deprivation of liberty. It also raises worrying concern that decisions and procedures on admission, review and discharge are not specific or well enough overseen and planned for. It is to be hoped that

The Government will address these concerns in the forthcoming changes to the legislation.


*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Tony Clarke

Scottish Care Inspectorate Specialist

Tony began care work as a care assistant in care of the elderly here in Scotland in the 1970s. He very much enjoyed promoting activities, interests and good basic care. After a gap to gain a social work qualification, he worked in management of care services, latterly as a peripatetic manager which gave him experience of a wide range of services.

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