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LSA Test Case on Deprivation of Liberty and Powers of Attorney

2014-02-28 13:03:44

LSA encourages the use of Powers of Attorney, in particular for the elderly and those diagnosed with mental ill health.  They provide a great way of planning for the future.  A Welfare Power of Attorney allows a person to appoint someone they trust to make decisions in the future about their medical, personal and social needs if they become unable to do so themselves.  However LSA feels the law in this area lack safeguards in regard to the issue deprivation of liberty. 

In our view an Attorney authorising the placement of the person they are looking after in a locked residential environment or nursing home against their wishes is contrary to the European Convention on Human Rights.  We are not alone in this view and we await the Scottish Law Commission’s Report on Deprivation of Liberty with great anticipation. 

LSA has recently acted to safeguard one of our clients and has commenced a test case on the issue about whether or not a Welfare Power of Attorney can exercise their role as Attorney by depriving someone of their liberty within a locked environment.  The incarceration was contrary to the wishes of our client, who was released after an order of the Court of Session for interim liberation.

Karen McGill, Partner within LSA’s Mental Health Legal Representation Project commented: 

“The practice over the years of Welfare Attorneys in some circumstances depriving someone of their liberty lacks the human rights protections and proper means of review, of challenge by a Court.  The time has passed whereby this practice without proper safeguards can continue”.

Watch this space for further developments as matters progress.