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Cheshire West Guidance

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 Section 13ZA.

Read 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.