Give me liberty or give me a welfare attorney

The care a person receives can only deprive them of their liberty if they have not consented to it, but the position becomes more complicated if they lack the mental capacity to consent.

In situations where a person (1) lacks capacity and (2) does not agree with their care arrangements, we have seen an emerging practice in Scotland for the relevant public authority to insist that an application to the local sheriff court be made for the appointment of a welfare guardian, despite a valid welfare power of attorney being in place. Such a practice is driven by concerns that such care would otherwise amount to a deprivation of that person’s liberty, contrary to article 5 of the European Convention on Human Rights.

Article 5: uncertain scope

Article 5 provides that everyone has the right to liberty and security of person. The right to liberty is a fundamental human right, guaranteeing that arrest or detention will not be arbitrary or unlawful and that no one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law. The right to security of person is the right to the protection of the law in the exercise of the right to liberty.

The term “deprivation of liberty” does not have a formal legal definition, and this in itself presents problems.

Case law has provided broad guidance as to how to assess whether there has been a deprivation of liberty, but the position is still not entirely clear and is still being developed by the courts. The criteria which will be considered will include the type, duration, effects and manner of implementation of the measure in question.

It is recognised that there are some circumstances when deprivation of liberty, particularly in the context of care, may be for the benefit and safety of the individual, provided there are appropriate protections in place. A measure amounting to a deprivation of liberty can be lawful and justified in terms of article 5(1)(e) provided it has a legal basis, is a proportionate response to the particular situation, concerns a person who has a genuine mental disorder and legal safeguards are provided for the person deprived of their liberty. 

Why guardianship?

But why are welfare guardianships being favoured in these instances over welfare attorneys? A welfare power of attorney and a welfare guardianship do after all both essentially serve the same purpose, as they are both means by which a person is appointed to act on another person’s behalf.

The distinction is that a power of attorney can only be granted by an individual who can understand and explain their wishes, whereas a guardianship applies where a person no longer has the capacity to grant a power of attorney and make decisions on their own behalf.

Compared to a power of attorney, a guardianship is undoubtedly a much more involved process that requires to be applied for through the court and can in some areas in Scotland take up to six months to a year to be granted. A power of attorney, on the other hand, simply involves a deed being drawn up, typically by a solicitor, which stays in force unless revoked by the person granting the power of attorney or on death. A guardianship is customarily granted for a fixed period by the court, unless sufficient cause can be shown for such an order to be granted indefinitely.

Section 70 of the Adults with Incapacity (Scotland) Act 2000 also permits welfare guardians to make an application to the court where an adult does not comply with a decision they make, when they might reasonably be expected to do so. It is unclear why this provision is only available to guardians and why this power is not also conferred on welfare attorneys or those granted an intervention order in the context of an individual’s welfare.

The issue here, however, is not necessarily the legal distinction between the two, but more that the current legislation in this area is in need of reform. This was highlighted by the Scottish Law Commission’s Report on Adults with Incapacity (2014). The report focused on this question of deprivation of liberty and how it relates to the current legislative framework, and concluded that adults with incapacity in Scotland are currently being confined to hospital wards and residential care facilities without any underlying process, which is contrary to article 5 ECHR.

Since this report, many relevant public authorities have reviewed their practices and are now reacting cautiously. In Bournemouth Borough Council v PS [2015] EWCOP 39 – an English case but persuasive in a Scottish context – Mr Justice Mostyn noted that in light of the decision of the Supreme Court in Cheshire West [2014] UKSC 19 (another English ruling), local authorities have to err on the side of caution and bring every case, however borderline, before the court. After all, if the measure is found to be in contravention of the provisions of article 5, the person has a right of compensation: article 5(5).

Accordingly, owing to this more formal procedure, a guardianship is viewed as being more appropriate in the foregoing situation. However, it is arguably more restrictive on the person to insist on a cumbersome and lengthy guardianship process when the individual has a valid welfare power of attorney in place, which appoints a person that they specifically named and trusted to make these decisions at a time when they were able to make such decisions personally. The average timescale for a guardianship to be granted is also, itself, currently unsatisfactory as it is likely to leave the person in a state of limbo for a significant period of time regarding their care arrangements.

Sufficient power?

In the absence of any clear guidance on this point at this time, it is hoped that a carefully drafted power of attorney, which clearly addresses the granter’s wishes in this respect and incorporates appropriate safeguards – including the right for the adult or any other interested parties to challenge the arrangement – should negate this growing trend for welfare guardianships.

This could be facilitated by incorporating wording into a welfare power of attorney deed, if this is a person’s wish, specifically authorising a welfare attorney to make decisions in relation to a person’s care even if this would amount to a deprivation of their liberty. Safeguarding measures should, of course, be included so that there is a right to contest, as well as periodically review, any exercise of such power. By law all welfare power of attorney deeds must also include a declaration that confirms that a person has considered how their incapacity is to be determined. To go one step further, it would be better practice to set out expressly in the power of attorney deed how their incapacity is to be determined and who should determine it. This offers some further reassurance that their incapacity will be fully and formally considered before the document is invoked by their attorney.

It would also, as an aside, be best practice to include similar wording in any welfare guardianship application or intervention order, where this is appropriate (Application in respect of R 2013 GWD 13-293).

As this remains a very grey area of the law, and is yet to be tested in the Scottish courts, it is difficult to say with any certainty whether a power of attorney deed, which addresses deprivation of liberty and provides procedural safeguards, will be accepted by the relevant public authorities and court. It does, however, firmly demonstrate that this has been considered by the granter at the time of granting the power of attorney deed, and allows a clear procedure for any such action to be reviewed and challenged at a later date. An obligation to notify the granter and all interested parties in such situations would allow them to make an application to the court under s 20 of the 2000 Act if they did not agree with the actions of the attorney. It is hoped that this might satisfy article 5(4) ECHR, which provides that everyone who is deprived of their liberty by arrest or detention should be entitled to take proceedings by which the lawfulness of their detention should be decided speedily by a court and their release ordered if the detention is not lawful. 

Prospects for change

It is evident that there is a need for a more proportionate and manageable process in Scotland, which still affords adults with incapacity their fundamental rights.

There are hopefully legislative changes on the horizon which will reform and bring much needed clarity to this area of the law. The Scottish Law Commission report contained a draft bill which proposed amendments to the 2000 Act to make the current legislative framework compliant with article 5.

The guardianship process is also in the process of being evaluated, with a view to making the process more consistent, and efficient, across Scotland.

Until that time, it is important to ensure that welfare power of attorney deeds clearly express an individual’s wishes in this respect and that individuals are guided to elect welfare attorneys whom they trust to act in accordance with their wishes. Welfare attorneys should also be advised of their role and duties as attorneys and made aware of their legal obligations to the granter of the power of attorney.