March 2014 – Care Home prisoners?

Author: Mitchells Roberton
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When adults with incapacity (e.g. dementia) are looked after in a Care Home their freedoms may be curtailed. Under the European Convention on Human Rights everyone has the right to “liberty and security”. So, a specific question arises as to whether an adult’s being in residential care may involve a breach of that ECHR “right to liberty”. The law in this area is currently under consideration by the Scottish Law Commission. A bit more is said about that below; but first a few words about the ECHR.

The European Convention on Human Rights  (“the ECHR”)


  • The ECHR has been in existence since the 1950s, but was given legal force in Scotland through the Human Rights Act 1998 and the Scotland Act 1998. The various “Convention rights” are set out in Schedule 1 to the Human Rights Act. All public authorities in Scotland must act in accordance with the Convention rights in everything they do. The Scotland Act places a specific duty on Scottish Ministers and the Scottish Parliament to act in accordance with the Convention rights. In particular, section 29 Scotland Act 1998 provides:

“(1)        An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2)          A provision is outside that competence so far as any of the following paragraphs apply—

(d) it is incompatible with any of the Convention rights or with EU law …”

  • Together, these two 1998 Acts provide a framework within which Ministers, the Parliament and public authorities must operate in conducting their activities. The aim is to ensure that the protection of the Convention rights may be claimed in our own national courts.

Convention right – right to liberty and security – Article 5

  • As mentioned above, the Convention rights are listed in Schedule 1 to the Human Rights Act 1998. One of these (Article 5) is the right to liberty and security which is expressed as follows:


“1.          Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:


(a) the lawful detention of a person after conviction by a competent court;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

4.            Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The ECHR Article 5 “right to liberty”; Care Homes; and “adults with incapacity” (e.g. suffering from dementia)


  • Might a decision to move an adult lacking capacity into a Care Home, where he or she cannot consent to that, be a breach of Article 5 of the ECHR?
  • This is what was said on that question in a recent Scottish case (M, Applicant, 2009 S.L.T. (Sh. Ct.) 185):

“I considered art 5 of [the ECHR], which states that all individuals have a right to liberty and security …  where an adult is compliant with a regime [e.g. moving into a Care Home] but legally incapable of consenting to or disagreeing with it … then the adult is deprived of their liberty in contravention of art 5(1) of [the ECHR] and that therefore that step should not be taken without express authority governing it … “

The ECHR and private arrangements

  • As mentioned above, the ECHR provides that all “public authorities” in Scotland must act in accordance with the Convention rights in everything they do. What qualifies as a “public authority” is not precisely defined. One might think that, in the case of a private Care Home where the adult was privately funded, the ECHR would not bite in this context on the basis that such an arrangement is not to be imputed to the State but simply ascribed to an arrangement between private parties. In other words, in such a case the thorny question of “deprivation of liberty” under Article 5 would not arise. But it seems that is not so. In this context, the Scottish Law Commission Discussion Paper on Adults with Incapacity (July 2012) notes (at para. 6.14) (emphasis added):

“ … it is very unlikely that there could be a deprivation of liberty in any residential establishment in Scotland which could not be imputable to the State [such that the ECHR Article 5 “deprivation of liberty” question is engaged]. In any event, there is a responsibility to maintain legal provisions which protect citizens against unjustified deprivations of liberty.”

The Scottish Law Commission (“the SLC”) Review


  • The SLC’s review of the law in this area addresses two specific questions: (i) is Scots law as it currently stands adequate to meet the requirements of the ECHR in this area; and (ii) if not, how should it be changed?
  • These are thorny questions as is indicated by the SLC Discussion Paper running to some 112 pages. The Discussion Paper functions as a form of consultation exercise and it is expected that a Report with recommendations as to clarification of the law will be published this year.























Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie: email



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