18 May 2020

Vulnerable Adults and Coronavirus in Scotland

The Coronavirus (Scotland) Act 2020 received Royal Assent on 6th April 2020 having been passed by the Scottish Parliament on 1st April 2020. The provisions came into force on 7th April 2020 with some exceptions noted below.  This legislation has received significant attention in the Scottish media with particular attention paid to the proposed changes to practice within the area of criminal law.  However, little has been mentioned in the media regarding the provisions for children or vulnerable adults.  These areas potentially have a wider impact than the much publicised criminal aspects of the hurried new legislation.  At least half on my practice at Legal Services Agency has a focus on working with vulnerable adults, their families and carers through the Adults with Incapacity (Scotland) Act 2000, either in the form of Powers of Attorney or Guardianship Orders.

Provisions in relation to vulnerable adults can be found, alongside those in relation to children, within Schedule 3 of the Coronavirus (Scotland) Act 2020.  These provisions, where enacted, will remain in place until 30th September 2020 when Part One of the Act expires.  If required, the Scottish Government can extend the time for which the Act is in force to 31 March 2021 or 30 September 2021, with the decision on latter extension only possible after 30 September 2020.  Schedule 3, Part 2, relates specifically to the care of adults with incapacity.  Within this section there are amendments to various pieces of legislation with the majority being for the Adults with Incapacity (Scotland) Act 2000.  Of note, no changes have been made in respect of the granting of a Power of Attorney.

Section 13ZA The Social Work (Scotland) Act 1968

For those who are familiar with this area Section 13ZA can still cause difficulties.¬†¬†It allows for a local authority to move someone who lacks capacity from a hospital or other care setting into, usually, residential care.¬†¬†Where there is a Welfare Attorney or Guardian who has the powers to make such a decision, Section 13ZA cannot be used by the local authority to move someone.¬†¬†For someone to be moved under this provision they must agree to the move.¬†¬†¬†A situation which I typically encounter would be ‚Äď an elderly person who has been residing at home either with or without support services is taken into hospital and, whilst there, deemed to lack capacity to make welfare decisions.¬†¬†The professionals involved in their care agree that they can no longer be safely cared for at home and that they require 24/7 care.¬†¬†The person‚Äôs family also agree that they can no longer be safely cared for at home.¬†¬†The individual however wishes to return to their home.¬†¬†In these circumstances Section 13ZA cannot be used by the local authority to move the person into a 24/7 care setting.¬†¬†When considering using Section 13ZA the principles laid out in S1 of the Adults with Incapacity (Scotland) Act 2000 must be taken into account ‚Äď this includes taking account of the views of the Adult and relevant others.

The Coronavirus (Scotland) Act 2020 makes two changes in respect of the use of Section 13ZA stating:

‚Äú11(1)The Social Work (Scotland) Act 1968 has effect as if section 13ZA (provision of services to incapable adults) were modified as follows‚ÄĒ

(a)in subsection (3), for ‚Äúto (4)‚ÄĚ there were substituted ‚Äúand (3)‚ÄĚ,

(b)subsection (4) were repealed.‚ÄĚ

Noted below are the two Subsections which are amended by the 2020 Act:

‚Äú(3)The principles set out in subsection (2) to (4) of section 1 of the 2000 Act apply in relation to any steps taken under subsection (1) above as they apply to interventions in the affairs of an adult under or in pursuance of that Act.‚ÄĚ

‚Äú(4) Subsection (1) does not authorise a local authority to take steps if they are aware that‚ÄĒ

(a) there is a guardian or welfare attorney with powers relating to the proposed steps;

(b) an intervention order has been granted relating to the proposed steps; or

(c) an application has been made (but not yet determined) for an intervention order or guardianship order under Part 6 of the 2000 Act relating to the proposed steps.‚ÄĚ

As yet, this section has not come into force.  It will only come into force upon the passing of Regulations by the Scottish Ministers.  A possible date for doing so has not yet been decided.

The amendment to Subsection (3) is an attempt to remove the requirement that a local authority observes the principle of taking into account the views of the Adult and others who have an interest in the welfare of the Adult Рmost notably family members.  This could lead to people being moved, against both their wishes and those of their family members, into residential care.  The principle of taking into account a person’s wishes in relation to their own welfare is fundamental and applied throughout the Adults with Incapacity legislation.  It also ensures compliance with Article 8 of the European Convention on Human Rights.  At a time when many of our freedoms have been restricted, the removal of the requirement to take into account the wishes of a person, for many, is a step too far.

The change to Subsection (4), if brought into force, allows local authorities greater powers to move adults who are deemed to lack capacity without there being a recourse to Attorneys or Guardians.  For many families the involvement of an Attorney or Guardian allows them to maintain a presence in the decision making process and ensure that they are in agreement with the proposed move.  The loss of this involvement may lead to a loss of trust between professionals and families who feel that services are pushing them out of the decision making process.  For many families who find themselves in this type of situation the current media coverage of the Coronavirus related crisis in care homes compounded with the potential compulsion of an unconsented move of their loved one from a hospital to a care home could potentially lead to future litigation.

The changes to Sections 13ZA are arguably the most controversial part of the 2020 Act relating to vulnerable adults.¬†¬†Both the Mental Welfare Commission and the Scottish Humans Rights Commission raised concerns before Parliament on these changes ‚Äď which can be found on their respective websites.¬†¬†The Mental Welfare Commission are to be key in providing scrutiny of moves under 13ZA should the provision come into force.¬†¬†They note that the Commission have been provided with assurances that this provision is intended to be used only in exceptional circumstances and when a local authority has exhausted all other measures.

Adults with Incapacity (Scotland) Act 2000

The 2020 Act amends 3 sections of the 2000 Act, namely: 47, 58 and 60.  These cover authority of persons responsible for medical treatment, Applications for Guardianship Orders and renewal of Guardianship Orders.  In each case the 2020 Act notes that the period of a Certificate/Order does not run during any period in which the subsection has effect; the certificate continues to have effect during any period for which the subsection has effect; and nothing in the subsection affects any other ground for which the certificate/order would cease to have effect.  On first reading the effect of this isn’t particularly clear.

Section 47 Certificates

A Section 47 Certificate authorises medical treatment to be given to an Adult Рwho has been deemed not to have capacity to make decisions in relation to the medical treatment Рwhere this treatment is to safeguard or promote their physical or mental health.  Such a decision can be made by a range of healthcare professionals specified within the section.  Section 47 certificates are issued for a specified period of time.  Ordinarily the certificate would require to be renewed, if appropriate, upon expiration.  The 2020 Act stops the clock on the period of time left on the Certificate for the duration that the Act is in force.  For example, if a Certificate is in place until 7th May 2020, when the legislation ceases to be in force the Certificate will have a period of one month to run before requiring to be reissued.  This is the period which was already left on the Certificate when the 2020 Act came into force.

Guardianship Application

An Application for a Guardianship Order, whether dealing with Welfare, Financial or both matters, requires to be lodged with accompanying reports at the appropriate Sheriff Court.  Generally these reports are completed by two doctors and a Mental Health Officer.  The reports require to be dated within 30 days of each other and lodged at Court prior to the end of the 30 day period.  A Sheriff has discretion to allow late reports.

The 2020 Act extends the period of the Order granted by the Sheriff.

Renewal Application

An application for renewal of a Guardianship Order must to be lodged with the relevant Court prior to the date upon which the order will expire.  This Application has to be accompanied by different statutory reports depending on the powers contained within the Order.  These reports require to be dated within 30 days of each other and the submission of the Application to Court.

The 2020 Act means that whilst the legislation is in place a Guardianship Order due to be renewed after 7th April 2020 will not expire until after the legislation is no longer in force.  For example, if you held a Guardianship which was due for renewal on 30th April 2020 you would not require to lodge an Application for renewal ahead of that date.  Instead, the 13 days left on the Guardianship would be carried forwards, allowing a period of time after the legislation is no longer in force to lodge a renewal.

Since around the start of March 2020 social distancing measure have made it difficult for Mental Health Officers and doctors to meet with people to carry out the necessary assessments for the statutory reports.  The Mental Welfare Commission provided their updated advice on 3rd April 2020 that where it is not possible to conduct an assessment in person it may be done using video conferencing or by telephone.  Where the doctor is satisfied that they have been able to carry out a sufficient assessment remotely for the purposes of preparing a report then they should do so.  They also recommend that interviews should be followed up by a face to face meeting when safe to do so.   From our experience both doctors and Mental Health Officers have been willing to adjust the way they work to fit the current circumstances, and allow for Applications to be prepared for submission to Court.

Prior to 29th April 2020* the Courts were only dealing with urgent business meaning that even if an Application for Guardianship or Renewal of Guardianship could be submitted it was unlikely that the papers would be warranted for service and a Hearing assigned until a future unknown date.  Although, arguably, if you required to seek Interim Orders the matter could be dealt with as urgent business.  The way in which an Application for Interim Orders was dealt with varied greatly between different Courts.  Although frustrating for both clients and agents given the current amendments to Court working practices a degree of flexibility has been required.

The coming months will be a challenging time for all involved and it is hoped that the amendments, especially to the 2000 Act, will allow required Applications to be dealt with in a timely manner.  My colleagues and I will be available to discuss any queries and provide advice throughout the pandemic.  We can be contact by telephone on 0141 353 3354 or email to mail@lsa.org.uk.

Rachel Walker
Associate Solicitor
Legal Services Agency

*From 1st¬†May 2020 parties can agree Adults with Incapacity, and other Applications, which had been sisted can be restarted.¬†¬†https://www.scotcourts.gov.uk/docs/default-source/default-document-library/coronavirus-guidance—progressing-certain-categories-of-civil-business-29-04-20.pdf?sfvrsn=2