Scottish Human Rights Law Group

Mental health – article 5(1)(e)

The applicant sought an order under Section 57 of the Adults with Incapacity (Scotland) Act 2000 to be appointed as  guardian to his 77 year old mother, who suffered who suffered from severe vascular dementia and had been admitted to acute medical and rehabilitative care where her needs were assessed as being nursing home care. She was considered to be no longer capable of independent living or of managing her own affairs.   

In terms of specific powers relating to the welfare, property and financial affairs of his mother, the applicant specifically sought the power to decide where she should live, to have access to confidential documents, and to consent to, or withhold consent to, medical treatment. In granting the order sought, the sheriff held that notwithstanding that the mother was currently de facto fact “compliant” her current nursing and care regime she was legally incapable of consenting to or disagreeing with it, and consequently could be said to be being deprived of her liberty guaranteed under Article 5.   Accordingly in order to avoid a legal vacuum and instead properly to place the circumstances of her care on a lawful footing consistently with Article 5(1)(e) the least restrictive option was one which granted statutory powers of guardianship as sought by her son. This would also allow issues such as payment of fees from her estate for her care, consent to possible medical intervention and access to otherwise confidential documents also to be dealt with on a proper legal basis and consistently with her rights under Article 8.