17 September 2014
Mental Welfare Commission response to queries
related to when to use s13ZA v Guardianship following the Cheshire
West Supreme Court decision.
The Cheshire West decision poses challenges to the
operation of incapacity law in Scotland as it currently stands.
Read the Supreme Court Decision
The UK Supreme Court's view on the definition of deprivation of
liberty considerably broadens existing interpretations in Scotland
which have been held, for the most part, by health and social
services. These interpretations have evolved over the years from
accepted common practice but have been further informed by the
Scottish Government's Guidance in CCD5/2007 following the amendment
to the Social Work (Scotland) Act 1968 with the introduction of
the Scottish Government's guidance for local authorities
The ruling states that deprivation of liberty is a matter of
fact and does not depend on the purpose of the intervention or the
nature of the person's individual circumstances. The majority of
the judges agree that the fundamental characteristics of
deprivation of liberty are being 'under continuous supervision and
control' and lack of freedom to leave.
Please read our full response here.