Adults with Incapacity Amendment Act: consultation
Part seven: approach to deprivation of liberty
Court cases since the Adults with Incapacity Act (AWI Act) came into force require us to consider the Deprivation of Liberty (DOL) of adults who lack capacity in social care settings. This was considered by the Scottish Law Commission in their 2014 report.
What do we mean by DOL?
Deprivation of liberty is about how measures are applied rather than where they are applied. The key factor is whether the person is under the continuous supervision and control of those responsible for their care and whether the person is free to leave.
We are not proposing to include a deprivation of liberty in the AWI Act. We consider that a better approach is to set out in the code of practice and guidance, what factors need to be considered in assessing whether an adult will be subject to a DOL, or restrictions on their liberty, or not. This will ensure the factors relevant to each case are properly considered. Guidance and changes to the codes of practice will be fully consulted on in due course. We propose however that the term ‘deprivation of liberty‘ is used in legislation as it is well understood.
We are here concentrating on DOL, but we are aware that there are views that restrictions on liberty short of depriving someone of freedom to come and go as they please from their place of residence, should also be subject to additional safeguards.
We have said in part 5 of this consultation that we will be developing a scheme in regulations, which will be consulted on in due course to address the perceived lack of safeguards around the use of force and restrictions in cases of treatment under section 47 of the AWI Act.
What are we doing about DOL safeguards?
We are proposing to follow the recommendations of the Scottish Mental Health Law Review. They recommended that where a person, is able to make an autonomous decision to express their consent to their living arrangements, even where these might amount to a DOL, this must be respected. We also felt that where a person cannot make an autonomous decision but can, with support, express a will and preference to remain in their current living arrangements, even if those arrangements would otherwise constitute a DOL there was no need for further judicial oversight.
We agree with this. If a person with support can clearly express a will and preference to remain in their living situation, even if that situation is a DOL, no further judicial oversight is required. But we are proposing a stand alone right of appeal similar to that proposed by the Scottish Law Commission report, and this would be available to anyone in these circumstances.