Report on Adults with Incapacity : Scottish Government Papers 180 2014

The Commission has been examining the processes applying when people receive care which requires some restriction of their liberty.

This may happen in the care of people with dementia or learning difficulties in general hospitals and in community facilities, such as care homes.

Although individuals may need to be restricted in order to protect them from harm, it is important that the restriction does not curtail their freedom beyond what is required to safeguard their welfare.

Scots law already provides a detailed process to ensure that any medical treatment received by a person with cognitive disability is properly authorised.

The Commission is recommending that where that treatment is given in hospital and additional measures are adopted to prevent the person from leaving the hospital unaccompanied, the authorisation process should be extended to cover those additional measures.

This would mean that restrictions which are considered by the person themselves or by their family to be unnecessary could be challenged.

For care homes and other residential facilities in the community, the Law Commission recommends a new process for people who cannot make key decisions themselves.

The new process seeks to identify the care regimes with the most restrictions and to provide a level of scrutiny to ensure that all the measures to which a person is subject are necessary for their wellbeing, and are the least restrictive care regime possible.

Finally, the Law Commission also recommends a procedure for challenging allegedly unlawful detention in settings in the community.