Adults with Incapacity Amendment Act: consultation

Part 7: Approach to Deprivation of Liberty (DOL)

The Bournewood ^[63]and Cheshire West^[64] court cases which are decisions that are binding in England and Wales have nonetheless highlighted concerns that there is a human rights gap in Scots law around the DOL for persons who lack capacity to consent to this voluntarily.

Article 5 of the ECHR permits DOL for ‘persons of unsound mind’, subject to safeguards intended to prevent unjustified detentions. It requires a lawful process to authorise a DOL, even in those cases where there is no objection from the adult or their family. And this detention must be able to be challenged in a practical and effective way.

The Bournewood case made it clear that if a person is subject to continuous control and supervision and is not free to leave, then article 5 is engaged. And it said that a person who lacks capacity but does not seem to object to a deprivation cannot consent to that DOL.

The Cheshire West case reinforced this position. We consider it important to review situations in health and social care where DOLs may occur and what safeguards might be required.

The 2003 Act provides Article 5 ECHR compliant safeguards against unjustified or unlawful DOL with the legal framework it established for compulsory measures of care and treatment. But Bournewood and Cheshire West have highlighted the need for us to consider DOL in other Scottish health and social care settings.

This was considered in detail by the Commission in their 2014 report^[65]. This concluded that there is a lack of legal process for adults without capacity in both hospitals and care home facilities in Scotland.

The position of adults in hospital is considered in part 5 of this consultation. This part of the consultation considers the position of adults in social care settings.

What do we mean by DOL?

There is no single definition of the concept of DOL in ECHR case law. But the case law can be used to identify a number of factors that are relevant in trying to set out a definition.

DOL includes an objective and a subjective element. A person with capacity can give valid consent to measures restricting their liberty and article 5 is not engaged. Objectively however DOL takes into account the situation of the individual concerned and considers a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.

The distinction between a DOL, and restrictions upon a person’s liberty is one of degree or intensity rather than nature or substance. It is about how measures are applied rather than what they are or where they are applied. But the key factor is whether the person is under the continuous supervision and control of those responsible for their care and whether the person is free to leave.

We had considered setting out a definition of DOL in legislation, however, the SLC report at para 7.6. said

‘ we do not make a recommendation that the 2000 Act be amended to define the terms ‘detention and DOL ‘ Several consultees suggested in their responses that a workable definition of those terms is likely to be extremely difficult to achieve, In addition, as the Faculty of Advocates pointed out the application of Article 5 ECHR necessarily involves the balancing of a number of factors relevant to any given situation. It is questionable to what extent the inclusion of specific definitions would be consistent with that. ‘

We agree with this. We consider that a better approach is to set out in the code of practice and guidance, what factors need to be considered in assessing whether an adult will be subject to a DOL, or restrictions on their liberty, or not. This will ensure the factors relevant to each case are properly considered. Guidance and changes to the codes of practice will be fully consulted on in due course. We propose however that the term ‘deprivation of liberty ‘is used in legislation as it is well understood.

We are here concentrating on DOL, but we are aware that there are views that restrictions on liberty short of depriving someone of freedom to come and go as they please from their place of residence, should also be subject to additional safeguards.

We have said in part 5 of this consultation that we will be developing a scheme in regulations, which will be consulted on in due course to address the perceived lack of safeguards around the use of force and restrictions in cases of treatment under section 47 of the AWI Act but would welcome views on whether we need to go further than this.

What steps are required?

The SMHLR considered the question of DOL in chapter 8 of its final report.

At 8.3.1 page 263 we note the following excerpts:

‘There has therefore been an increasingly urgent need to address this incompatibility and ensure there is a process to authorise lawful DOL, and to challenge the lawfulness of a DOL. At the same time any process must be a proportionate one which does not discriminate against disabled people relative to others. For example, it is disproportionate to suggest that in the absence of any concerns, an adult living in a domestic setting with family or foster care style relationships should be treated as being deprived of their liberty and the family subject to monitoring by the State. […]

…it is discrimination to deprive someone of their liberty where they are unable to consent to this if the only reasons for doing so is the convenience of those providing care and support, or because of misconceptions about the level of risk they present to themselves or to others , or to protect them from abuse by others.

This poses something of a dilemma in human rights terms. On the one hand article 5(1)(e) ECHR allows for a person to be deprived of their liberty subject to safeguards, where there is a reliable diagnosis of unsound mind (Winterwerp^[66]). On the other hand […] the committee on the Rights of Persons with Disabilities has stated this is discrimination. However, we consider that this apparent mismatch of approaches between the two treaties can be significantly reduced, […] by virtue of the Human Rights Enablement, Supported Decision Making and Autonomous Decision Making framework as described in chapter 4.

An objective of such a framework would be to ensure that whenever someone is deprived of their liberty, this is either a reflection of their will and preferences, (using SDM) or where it is not it is only possible if […] a risk exists to their or other’s rights that proportionately and non- discriminatorily warrants a DOL and must be in fulfilment of the person’s overall human rights. […]

We recognised that in order to provide care and support so as to protect a person’s overall rights, including their safety and wellbeing, a DOL may occasionally be necessary.

Clearly any person who can, is able to make an autonomous decision to express their consent to their living arrangements, even where these might amount to a DOL, and this must be respected. We also felt that where a person cannot make an autonomous decision but can, with support, express a will and preference to remain in their current living arrangements, even if those arrangements would otherwise constitute a DOL there was no need for further judicial oversight.’’

The Scottish Government agrees with this approach. Although at this stage in law reform we are not tackling the proposals for human rights enablement and autonomous decision making, as proposed by the SMHLR, work is underway to develop a supported decision making framework, which will underpin proposed changes to the AWI Act and practice.

So, we consider that a pragmatic approach as proposed by the SMHLR is appropriate for many potential DOL placements where a person can be supported to express their will and preferences. If a person with support can clearly express a will and preference to remain in their living situation, even if that situation is a DOL, no further judicial oversight is required. However, as we state later in this chapter, we are proposing a stand-alone right of appeal similar to that proposed by the SLC report, and this would be available to anyone in these circumstances.

People who cannot consent to a DOL

Again, the SMHLR considered this in chapter 8 of their final report. They proposed that both a power of attorney and authorisation of a decision making representative could facilitate a DOL.

A decision making representative is the alternative to guardianship that the SMHLR proposed. At this stage in law reform, we are not considering this change, however, we consider that the proposal for a decision making representative to facilitate a DOL can be read across to guardianships.

Powers of Attorney

The SMHLR proposed that a power of attorney (POA) with prescribed wording, may grant advance consent for the attorney to deprive the granter of their liberty, where the deprivation is proportionate and will demonstrably lead to more respect, protection and fulfilment of the person’s rights overall.

We agree with this, but the proposal needs further detail which we provide here.

In Part 1 of this consultation, we have set out the changes that will be taken forward in any future law amending the AWI Act. One of these changes is to require that in creating a power of attorney, the granter must set out how a determination of their incapacity should be decided.

If the power of attorney is to include advance consent to deprive the granter of their liberty, we propose that this incapacity will require to be determined by independent medical assessment.

As to the terms of the power of attorney, we do not intend that any change will affect the current provisions of section 16(6) of the AWI Act. The prohibition on placing a granter in hospital for the treatment of mental disorder against their will, and accompanying restrictions will continue to apply.

Section 16(3) of the AWI Act set outs the terms that need to be met to ensure the validity of a welfare power of attorney. We suggest that this be amended to reflect the wording required for a power of attorney to authorise a DOL of the granter and that if the required wording is not followed, the POA cannot validly authorise a DOL.

We anticipate that any Bill will contain a power for Ministers to specify the wording by regulations and this will be consulted upon at a later date, but we consider that the following factors will need to be reflected in the wording

• The granter has considered the circumstances in which it might be necessary to restrict their liberty or deprive them of their liberty, in order to safeguard their health or welfare, or that of others.
• The terms of article 5 of the ECHR have been explained to the granter
• Authority is given to the attorney/s alone
• The attorney must be satisfied the action is necessary to safeguard the health or welfare of the granter
• The attorney must act in accordance with the principles of the AWI Act
• The attorney will be subject to any directions of the court following any application under section 3 (3) of the AWI Act.

This last point is particularly important. We propose that where an adult ,having previously granted advance consent for their attorney to deprive them of their liberty , later objects to the consent being acted on, and their being moved to a setting where their liberty is restricted or deprived, the attorney, or any other person with an interest in the adult’s welfare must seek a determination from the Sheriff under section 3(3) as to the appropriate way to proceed.

Appeal and Review

As stated above any process to deprive an adult of their liberty must be challengeable in a practical and accessible way. So, we suggest that an appeal may be made to the sheriff court, by any person demonstrating an interest in the welfare of the adult.

The grounds for appeal should be that the placement is not necessary to safeguard the health or welfare of the granter. In keeping with the proposed amended principles of the AWI Act as set out in part 1 of this consultation, there would be a requirement on the person raising the appeal, to demonstrate what steps had been taken to ascertain the views of the adult. The sheriff would also have the option of appointing a safeguarder (the position of safeguarders and curators is set out later in this part.)

It is important that the appeal process be accessible. We would welcome views on what added steps can be taken to improve the accessibility of the appeal process.

Review of the placement

In keeping with the principles of the AWI Act it is important to ensure that an adult is subject to the least restrictive option in relation to the freedom of the adult consistent with the purpose of the intervention. So, an adult deprived of their liberty should only be subject to these restrictions for the minimum time necessary. To that end regular reviews of the placement/ restrictions will be needed. And such regular reviews are also needed to meet ECHR requirements.

We are seeking views on how regular reviews can be carried out. At present the local authority is obliged to review guardianship orders every 12 months^[67]. There is no such requirement for powers of attorney. Whilst there is a balance to be struck between ensuring the safety and wellbeing of an adult , and recognising that , in the case of a power of attorney, actions are carried out in accordance with the adult’s specific instructions, when it comes to an individual being deprived of their liberty it is essential to ensure this situation is not abused in any way.

We therefore seek views on how DOLs authorised by a power of attorney can be appropriately reviewed, in a way that is accessible to the adult.

Guardianship orders

At present guardianship seems to be accepted as a lawful procedure under ECHR to deprive a person of their liberty^[68]. But concern has been expressed that the voice of the adult is not at the centre of the process.

Section 64 of the AWI Act sets out the functions and duties of a guardian. We think it is important to add to these functions and duties the position around DOL

Our policy proposal is that specific provision is made whereby, on cause shown, the sheriff can authorise a guardian to place an adult in a setting which may form a DOL.

The cause shown would need to meet ECHR requirements, so

• An independent medical assessment of mental disorder would be needed – the current requirements for medical reports for guardianship applications, as amended by our proposed changes would address this we think
• The placement would need to be time limited, and subject to regular reviews. This should be a combination of regular internal reviews and a time limit placed on the authorisation by the sheriff.
• We propose that the initial order should be for a maximum of 12 months, which may on renewal be extended to a maximum of 2 years, in keeping with the requirement for regular reviews of detention ^[69]
• The placement would need to be a proportionate response to the situation the adult is facing. i.e. that it was necessary to safeguard the welfare or health of the adult.
• The principles of the AWI Act would still need to be followed, so the will and preferences of the adult would need to be ascertained

A right of appeal will be created, in similar terms to that for placements under a power of attorney, by any person demonstrating an interest in the welfare of the adult. The grounds for appeal should be that the placement is not necessary to safeguard the health or welfare of the granter. In keeping with the proposed amended principles of the AWI Act as set out in part 1 of this consultation, there would be a requirement on the person raising the appeal, to demonstrate what steps had been taken to ascertain the views of the adult. The sheriff would also have the option of appointing a safeguarder (the position of safeguarders and curators is set out later in this part.)

And again, we would welcome views on what added steps can be taken to improve the accessibility of the appeal process.

Review of the placement

Currently welfare guardianship orders are subject to a requirement for an annual review by the relevant local authority. This generally consists of a visit from a social worker or Mental Health Officer. We consider however that a placement where an adult is being deprived of their liberty requires a more regular review and are recommending that a review every six months by the local authority should be undertaken for such placements. The adult, and /or any person demonstrating an interest in the welfare of the adult, may also request a review of the placement at any time.

We would like your views on whether these proposals are sufficient or if more needs to be done to ensure such placements are appropriately reviewed and what format the review should take.

Stand-alone right of Appeal

In its 2014 report the SLC recommended a stand-alone right of appeal against any detention which could be assessed as being unlawful. We agree with this proposal.

As said earlier in this part, we consider that if a person is able with support to express their will and preferences, and agree to remain in their current living environment, even if such an environment forms a DOL, then no further judicial oversight is required. However, if this situation should change then the adult needs to have a means of addressing this.

We would hope that regular internal reviews, and dialogue with the adult, supporting them to express their will and preferences would ensure steps could be taken quickly should the adult no longer be content with their placement. However that cannot be guaranteed, and we consider a stand-alone right of appeal against a DOL is needed for such scenarios.

As with the appeal proposed against placements under a power of attorney and a guardianship order, an appeal should be able to be raised by any person demonstrating an interest in the adult. And the appellant will have to demonstrate how the will and preference of adult has been obtained.

Role of the Mental Welfare Commission

Section 9 of the AWI Act sets out the specific functions of the Mental Welfare Commission (the MWC) in relation to any adult to whom the AWI Act applies by reason of mental disorder. That is, the MWC has no role in relation to adults whose incapacity results solely from inability to communicate.

Currently the MWC must consult the Public Guardian and any local authority on cases or matters relating to the exercise of the AWI Act where there is, or appears to be a common interest; if the MWC is not satisfied with any investigation made by a local authority, into a complaint made under section 10 of the AWI Act, or where the local authority have failed to investigate the complaint the MWC may investigate complaints relating to the personal welfare of the adult made in relation to welfare attorneys, guardians or persons authorised under intervention orders.

The SMHLR recommended that the MWC may intervene if they have concerns, in cases where an adult has with support, expressed a will and preference to remain in their current living arrangements, even if those arrangements constitute a DOL

We agree with this but we think the role of the MWC should be extended to permit them to investigate any placement where an adult is deprived of their liberty under the AWI Act, if concerns are raised with the MWC by any person having an interest in the adult’s welfare, or by the MWC themselves in the course of a visit to the adult from a Commission visitor, under section 13 of the Mental Health (Care and Treatment)(Scotland) Act 2003.

Questions

66. Do you agree with the overall approach we are proposing to address DOL?

67. Is there a need to consider additional safeguards for restrictions of liberty that fall short of DOL?

Powers of attorney

68. Do you agree with the proposal to have prescribed wording to enable a power of attorney to grant advance consent to a DOL ?

69. What are your views on the issues we consider need to be included in the advance consent?

70. What else could be done to improve the accessibility of appeals?

71. What support should be given to the adult to raise an appeal?

72. What other views do you have on rights of appeal?

73. How can DOLs authorised by a power of attorney be appropriately reviewed?

Guardianships

74. Do you agree with the proposal to set out the position on DOL and guardianships in the AWI Act?

75. In particular what are your views on the proposed timescales?

76. What are your views on the proposed right of appeal?

77. What else could be done to improve the accessibility of appeals?

78. Do you agree with the proposal to have 6 monthly reviews of the placement carried out by local authorities?

79. Is there anything else that we should consider by way of review?

Stand-alone right of appeal

80. Do you agree with our proposal for a stand-alone right of appeal against a deprivation of liberty?

Role of the MWC

81. Do you agree with our proposal to give the MWC a right to investigate DOL placements when concern is raised with them?

Appointment of Safeguarders/Curators ad litem

Part one of our consultation paper proposes that there should be an overarching new principle for the AWI Act, that before any steps are taken to intervene in an adult’s life, all practicable steps should be taken to ascertain their will and preferences, and thereafter any action should be taken in accordance with these.

It follows that in court proceedings under the AWI Act, such as applications for guardianship, it is really important that every effort is made to find out the views of the adult before decisions are made.

In the long term the Scottish Government is considering a substantial revision of mental health and capacity law, but for present purposes, we are looking to improve the way the current systems work, so there is a need to ensure that the methods currently used to ensure the voice of the adult is fully heard, are working.

At present, safeguarders and curators ad litem play crucial roles in legal proceedings involving vulnerable individuals, and they are often appointed by the sheriff in AWI cases to ensure the adult’s views are heard.

Safeguarders are appointed by the court to represent and safeguard adults with incapacity in legal proceedings. Their primary responsibility is to ensure that the views, wishes and welfare of the adults they represent are fully considered and represented within the legal process.

Curators ad litem are appointed by the court to provide independent representation for individuals who are unable to represent themselves effectively in legal proceedings. They serve as a vital link between the court, their clients, and relevant stakeholders such as Mental Health Officers, facilitating communication and ensuring that decisions are made for the benefit of those they represent.

Safeguarders and/ or curators ad litem generally have a background in law, social work, or a related field, with experience working with vulnerable individuals.

Some cases involving adults with incapacity can be highly complex, requiring a nuanced understanding of legal, medical and social issues.

There is a gap in terms of public awareness and understanding of the roles of safeguarders and curators ad litem. This can lead to misconceptions and challenges in implementing effective measures for both roles.

Concerns around the understanding of the role of both safeguarders and curators are long standing. Lord Gill in the Scottish Civil Courts Review in 2009 recommended changes such as uniform training programmes, minimum standards and national standards and rates of remuneration. The appointment of curators ad litem in the Mental Health Tribunal for Scotland has been revised but no new process has been introduced in the Sheriff Courts for AWI cases. Similarly the role and responsibilities of safeguarders in the children’s hearing system has been revised, but no such action has been taken in respect of safeguarders for AWI cases.

Chapter 5 of the final report of the SMHLR looked at the roles of both safeguarders and curators ad litem. The main issues around curators ad litem mentioned in the review include:

• variances in understanding the role, with some seeing it as representing the individual's best interests and others as stepping into the individual's shoes
• lack of formalised training for curators ad litem, particularly concerning when working with individuals with neurodiverse conditions or sensory impairments
• absence of statutory obligation to produce reports, leading to inconsistencies in quality and detail
• limited opportunities to develop trusting relationships between curators ad litem and individuals due to appointments being made on a case-by-case basis
• disparities in rights of appeal compared to other roles, such as in cases of AWI where curators ad litem have limited appeal rights
• suggestions for exploring the need to reconsider the right of appeal for curators ad litem in Mental Health Tribunal for Scotland (MHTS) cases.

The main issues with safeguarders mentioned in the review include:

• overlap and lack of distinction between the roles of safeguarders and curators ad litem, leading to confusion
• suggestions for consolidating the roles to reduce confusion and streamline the process
• concerns about common procedures for appointments of both roles across Scotland, leading to inconsistency
• uncertainty regarding payment for safeguarders, with councils covering the cost but no clear basis for charging
• calls for uniform training programs and national standards to ensure consistency and best practice
• discussion about the potential role of an Official Solicitor in Scotland, similar to the one in England, to represent individuals lacking mental capacity and unable to manage their own affairs.

Chapter 5 of the SMHLR also recommends that the Scottish Government should increase governance over the role of a curator ad litem. This should include:

• a statutory duty on the curator ad litem to report the actions they have taken to ascertain the will and preference of the individuals
• mandatory training for curators
• establishing a process for ensuring that there is no conflict of interest where a curator ad litem also acts as a solicitor.

For safeguarders, Chapter 5 of the SMHLR recommends the Scottish Government should:

• review guidance to ensure that there is a consistent approach to appointing safeguarders across all sheriffdoms
• review guidance to ensure that the role of the safeguarder is unambiguous;
• create a uniform training programme with a requirement that the training is completed before being accepted as a safeguarder
• create a system of national standards for the work being done which would enable best practice to be shared across the country
• revise the payments system for safeguarders to place it on a more equitable footing.

In addition to considering the recommendations of the SMHLR, officials from the Scottish Government met with the former Public Guardian for Scotland to discuss the roles of safeguarders and curators ad litem. From this it was clear that while both roles serve essential functions, there are areas for improvement, particularly in ensuring consistency, transparency and accountability in their appointments and decision-making processes. These insights not only closely correspond with the recommendations outlined in the SMHLR but also helped inform our proposals for change, aimed at effectively addressing the identified areas of improvement for both roles.

We agree with the recommendations set out in in the SMHLR for both safeguarders and curators ad litem. There is a need for consistency of approach and transparency of appointment to both roles, and the tasks they are expected to complete.

There is a distinction to be drawn between the appointment of safeguarders and curators. Safeguarders for adults are only used in AWI cases in the sheriff court where as curators ad litem can be used in other proceedings.

For safeguarders therefore we are proposing a power for Ministers to make regulations that will establish a scheme for the appointment and training of safeguarders. This scheme will also set out a payment scheme for safeguarders. The aim of this will be to ensure consistent quality of reporting and a greater understanding of the role and responsibilities of the safeguarder.

For curators, we are proposing mandatory training for AWI cases and a duty to report the actions they have taken to ascertain the will and preferences of the adult they are working with. We are proposing a statutory duty for curators ad litem to report the actions they have taken in order to ascertain the will and preference of the individuals they represent. This will be taken forward in regulations which will be consulted on.

Again we hope that this will improve understanding of the role of the curator, and ensure the adult’s voice is heard.

However it may be that more support is needed for adults with incapacity within court proceedings. We would be grateful for views as to what additional support may be required to ensure court proceedings under AWI are more accessible for adults with incapacity,

Questions:

82. Do you agree with the proposals to regulate the appointment, training and remuneration of safeguarders in AWI cases?

83. Do you agree with the proposals for training and reporting duties for curators?

84. What suggestions do you have for additional support for adults with incapacity in AWI cases to improve accessibility?

Making financial abuse of an adult lacking capacity a criminal offence

Presently the AWI Act states that it is a criminal offence for anyone with powers under the AWI Act relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult^[70].

A person guilty of this offence is liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or both. On conviction on indictment a person guilty of this offence is liable to imprisonment for a term not exceeding 2 years or to a fine, or both.

We are suggesting that there is an equivalent criminal offence for financial abuse of an adult lacking capacity, with similar liability as welfare. We know that welfare and financial abuse often come hand in hand. We hear that because of a lack of a specific criminal offence under the AWI Act, there can be uncertainty over whether a criminal offence has occurred, or whether it is a civil matter.

We think financial abuse of an adult lacking capacity is a criminal matter and whilst it can be prosecuted under other criminal charges like embezzlement, fraud or theft, there is merit to having a specific criminal offence of this kind. Adults with incapacity are one of the most vulnerable sectors in our society and already have a specific welfare offence of ill-treatment and wilful neglect. As such we think they deserve the profile of having a specific offence of financial abuse.

Question:

85. Do you think there should be a specific criminal offence relating to financial abuse of an adult lacking capacity?

86. If so, should the liability be the same as for the welfare offence?

Safeguards whilst awaiting discharge from hospital

The proposals contained within this consultation aim to streamline and improve the AWI process, enhance the rights of incapable adults and address the challenges around deprivation of liberty for incapable adults.

We know that nearly 20% of all delayed discharges are people in hospital settings, recorded as being adults with incapacity. These can be in-patients for planned care such as a hip replacement, or as an emergency through Accident and Emergency.

Clinicians will ensure that they receive the most appropriate care to support them to become clinically fit to be discharged. If someone is deemed not to have the capacity to make decisions on their own, as to the care and support needed at this stage and in particular where they might live, provisions under the AWI Act can be used.

Some patients will have made provision for this kind of situation by granting power of attorney to a friend or relative to make decisions on their behalf. However, if no such provision is in place, or the PoA does not give authority for the set of circumstances the adult is faced with, and the adult even with support is unable to make decisions for themselves, a welfare guardianship may be required. This process can take time, as it rightly ensures that the rights of the individual are fully protected.

This accounts for nearly 400 people each week who, despite no longer needing hospital care, are currently staying in that hospital rather than in a setting that would be more appropriate. In many circumstances this is not the least restrictive option to meet their health and care needs. Within the hospital setting, people are often disconnected from their families, friends and social connections which impacts on their rights to respect for private and family life.

Of particular concern is the duration of discharge delay for those that are classified as AWI-related delays. Compared to ‘standard delays,’ whose average length of delay is 16 days, we know that this increases to 66 days for AWI.

Part 2 of this consultation set out proposals for change to powers of attorney, Part 6 of the consultation sets out proposals for change to guardianship orders, and later in Part 7 of the consultation, we have set out the suite of options proposed to address the challenges around deprivation of liberty and incapable adults.

We are very interested to hear your views on whether there are additional steps that could be implemented to ensure those individuals, who are a delayed discharge from hospital and who are currently going through the guardianship process, could be moved out of an acute setting and into a more appropriate care setting. An example would be a care home, that better meets their needs, while ensuring their rights are safeguarded.

We are also interested in your views on using different care settings, out with the NHS, for those who no longer need acute hospital care but for whom the guardianship process has not yet concluded.

Questions

87. Do you have experience of adults lacking in capacity being supported in hospital, despite being deemed to be no longer in need of hospital care and treatment? What issues have arisen with this?

88. Do you foresee any difficulties or challenges with using care settings for those who have been determined to no longer need acute hospital care and treatment?

89. Are there any safeguards we should consider to ensure that the interests and rights of the patients are protected?

90. What issues should we consider when contemplating moving patients from an NHS acute to a community-based care settings, such as a care home?