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2011: Restrictions of freedom

Involuntary internment

Mental Health (Care and Treatment) (Scotland) Act 2003

The Act was designed to modernise and improve the use of compulsory measures in mental health care.  It reflects the general move over the last two decades towards care and treatment in the community rather than in hospitals or other residential settings.  The title reflects the philosophy of the legislation with the focus on ‘care’ and ‘treatment’. In basic terms, the Act provides for the protection of people with a mental disorder in a hospital or community setting.

It contains mechanisms for dealing with offenders who have a mental disorder and so interacts with the criminal justice system.

The Act covers individuals who are defined as having a ‘mental disorder’.  The term includes mental illness, personality disorder and learning disability.  The majority of cases involving compulsory measures have been in relation to people diagnosed with a mental illness. However, the Mental Welfare Commission for Scotland monitors the use of compulsory measures and has found increasing use of emergency or short term measures being used for people aged over 75 years with a diagnosis of dementia.

Detention (Involuntary internment)

The Act deals with several forms of compulsion in relation to a person with mental disorder where:

There is a significant risk to the person’s health, safety or welfare or the safety of any other person (what is a significant risk is a question of judgement for health and social care professionals.  The tribunal will test this assessment during an appeal or on an application for a compulsory treatment order).

Treatment is available to prevent the person’s condition from deteriorating or to relieve its symptoms or effects

Compulsory admission is necessary because the person will not agree to admission and/or treatment; and

The person’s ability to make decisions about the provision of medical treatment is significantly impaired because of mental disorder.

Types of order

Emergency Detention (72 hours)

Short Term Detention (28 days and can be extended)

Compulsory Treatment Order (6 months – can be extended)

Mental Health Tribunals

The Act introduced a new system of mental health tribunals with a number of functions, including considering applications for orders and appeals against orders.

Emergency detention

This is detention in a psychiatric hospital for up to 72 hours if necessary. It does not authorise any medical treatment. In an emergency, common law powers might be used. A registered medical practitioner can sign an emergency detention certificate if s/he believes that a person’s ability to make decisions about medical treatment is significantly impaired because of mental disorder.  This authorises the removal of the individual to a specific hospital.  Before signing the certificate the medical practitioner must be satisfied that:

There is an urgent need to detain the person in hospital to access the medical treatment s/he needs

If the person was not detained, there would be a significant risk to his or her health, safety, or welfare or the safety of another person, and

Any delay caused by starting the short term detention procedure is undesirable.

If any treatment is needed the short-term detention procedure must generally be used.

Short term detention

This may be used where it is necessary to detain an individual with mental disorder who cannot be treated voluntarily and without the treatment the person would be at risk of significant harm. To obtain a certificate the approved medical practitioner must consult and gain the approval of a Mental Health Officer whatever the circumstances.

Compulsory Treatment Order

Compulsory Treatment Orders (CTOs) are granted by the Mental Health Tribunal.  They last for 6 months, can be extended by the responsible medical officer for a further six months and then extended annually. The Tribunal reviews them at least every two years. Therefore, they can restrict or deprive liberty for long periods of time.  The Mental Welfare Commission for Scotland looks at how these orders are used for people of different ages and genders to see if there are any trends.  Over recent years, the number of new orders has come down.  The use of CTOs for people aged 65 and over has increased for people with dementia in recent years.

‘De facto detention’

Practitioners must be careful that they are not using excessive coercion to prevent people from leaving hospital when they wish to. They must take care to document situations where they have concerns if an informal patient wishes to leave.  The Tribunal can, under section 291 of the 2003 Act, order that an informal patient is being unlawfully detained.  People with dementia pose a difficult problem.  The Tribunal has ruled that a person with dementia is unlawfully detained in a general hospital when prevented from leaving.  It can be appropriate to redirect someone and dissuade him/her from leaving but repeatedly thwarting a determined effort to leave is likely to a significant deprivation of liberty, and the patient should be formally detained.

Adults with Incapacity (Scotland) Act 2000

Scottish incapacity laws were reformed with the introduction of the Adults with Incapacity (Scotland) Act in 2000.  This Act covers people with a mental disorder who lack some or all capacity to make decisions or act in their own interests.  It recognises that capacity is not all or nothing but is ‘decision specific’.  The Act introduced a number of measures to authorise someone else to make decisions on behalf of the person with incapacity, on the basis of a set of principles on the face of the Act.  These are fundamental. Any action or decision

  • Must benefit the person
  • Must be the least restrictive of the person’s liberty in order to gain that benefit
  • Must take account of the person’s past and present wishes (s/he must be given assisted to communicate by whatever means is appropriate to the individual)
  • Must follow consultation with relevant others as far as practicable
  • Must encourage and support the person to maintain existing skills and develop new skills.

The individual may, whilst competent, appoint one or more persons to act their financial (continuing) and or welfare attorney.  This must be registered with the Office of the Public Guardian.  It does not allow the attorney to detain the grantor in a psychiatric hospital.  If the person refuses to comply with the attorney the attorney has no compulsory powers to detain.  Where there is concern for the person’s safety the attorney can apply to the court for a welfare guardianship order.  Powers can be granted to allow the guardian to decide on the accommodation of the person and other powers such as who they can consort with.  Where the welfare guardian has powers over accommodation s/he is able to restrict the freedom of the person by placing them in a care home against their will. However, whether this amounts to deprivation of liberty under the European Court of Human Rights ruling will depend on a number of other circumstances and the accumulative impact of which would need to be considered (Patrick and Smith, 2009; Mental Welfare Commission for Scotland, 2011). With regard to the issue of non-compliance, if the person on guardianship, for example, runs away, the guardian can apply to the Court under s70 for an order to require the person to return.

Because there is no automatic review of welfare guardianship orders there is concern that the Adults with Incapacity (Scotland) Act 2000 may not be compliant with the European Convention on Human Rights.  The Act states that the order should be for a standard 3 years but can be more or less at the discretion of the Court.  However, there has been a practice of orders being granted for indefinite periods and this has given rise to concern in relation to certain groups.  However, for people with dementia, who have a progressive brain disorder, an indefinite order may be deemed appropriate.  

The Scottish Law Commission is currently undertaking a review of the Adults with Incapacity (Scotland) Act 2000 in relation to deprivation of liberty issues.  It has established an advisory group of key stakeholders, including Alzheimer Scotland, and will be reporting in due course.


The Road Traffic Act of 1991 contains a few articles relating to offences involving driving when unfit to do so, e.g.:

  • A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
  • A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
  • If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he (or she) is guilty of an offence.
  • According to the provisions of this act, a person is regarded as driving dangerously if the way s/he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

A person who has been diagnosed with dementia must inform the Driver and Vehicle Licensing Authority (DVLA). Failure to do could lead to a fine of up to £1,000. Moreover, a person who had an accident but did not previously inform the DVLA of his/her dementia might not be covered by his/her insurance company. Once the DVLA has been informed of that someone has dementia, they send a questionnaire to the person and request a medical report. A driving assessment may also be required. The Medical Advisers at the DVLA then decide whether the person can continue driving (Alzheimer Scotland, 2003).


Patrick, H. and Smith, N. (2009),Adult Protection and the Law in Scotland, Bloomsbury Professional.

Mental Welfare Commission for Scotland Annual Report 2010 – 2011



Last Updated: Wednesday 14 March 2012


  • Acknowledgements

    The above information was published in the 2011 Dementia in Europe Yearbook as part of Alzheimer Europe's 2011 Work Plan which received funding from the European Union in the framework of the Health Programme. AE also gratefully acknowledges the support it received from Fondation Médéric Alzheimer for its project on restrictions of freedom and for the publication of its Yearbook.
  • European Union
  • Fondation Médéric Alzheimer