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Autonomy, benefit and protection: how human rights can protect people with mental health conditions or learning disabilities from unlawful deprivation of liberty
- Author:
- PATRICK Hilary
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2008
- Pagination:
- 52p.
- Place of publication:
- Edinburgh
This paper considers how the law and practice in Scotland relating to the care and treatment of people with mental health issues or learning disabilities respects their right to liberty and security guaranteed by Article 5 of the European Convention of Human Rights (ECHR). In recent years the law has changed, with the Adult Support and Protection (Scotland) Act 2007 clarifying the rights of local authorities to make community care arrangements for adults who are incapable of making such arrangements themselves. Helpful guidance from the Scottish Government (the s13ZA guidance) highlights good practice issues. The s13ZA guidance is clear that it is not appropriate to use the new provisions of the Social Work (Scotland) Act where care arrangements may constitute a ‘deprivation of liberty’ within Article 5 ECHR. This paper aims to build on the guidance from the Scottish Government. It deals with areas that the Scottish Government does not cover, for example patients in hospital and people living in their own homes, and outlines areas where further good practice advice could be helpful. The paper is in 5 parts. Part 1 looks at what is meant by deprivation of liberty and the requirements of ECHR law. Parts 2 and 3 look at deprivation of liberty in context and discusses how the rules operate in specific situations. Part 4 considers how the principles of Adults with Incapacity Act law and ECHR law can help form a framework for decision making in these difficult situations and Part 5 draws some conclusions.
The lessons of experience: the Adult (Support and Protection) Act reforms to Scottish incapacity and mental health legislation
- Author:
- PATRICK Hilary
- Journal article citation:
- SCOLAG Journal, 360, October 2007, pp.222-225.
- Publisher:
- ScoLAG(Scottish Legal Action Group)
The Adult (Support and Protection) (Scotland) Act 2007 has made significant changes to the Adults with Incapacity (Scotland) Act 2000 and some drafting improvements to the Mental Health (Care and Treatment) (Scotland) Act 2003. This article outlines the changes. It highlights recognition of advocacy, powers of attorney, changes to intervention orders, guardianship, access to funds and changes to Mental Health (Care and Treatment) Act.