Adults with Incapacity Emergency Legislation Commencement Consideration Group minutes: December 2020

Attendees and apologies

Attendees

• Julie Paterson- Mental Welfare Commission
• Allister Wilson-Scottish Courts and Tribunals Service
• Bob Leslie- Social Work Scotland
• Adrian Ward - Law Society of Scotland
• Fiona Brown - The Office of the Public Guardian
• Roger Smyth- Royal College of Psychiatrists
• Jill Stavert - The Centre for Mental Health and Capacity Law at Edinburgh Napier University
• Hugh McAloon (Chair)  - Deputy Director, Scottish Government Mental Health Division
• Peter Quigley - Scottish Government AWI policy
• Sarah Saddiq- Scottish Government AWI policy

Apologies

• Holly Dyce - Scottish Government Legal Directorate (SGLD)

Items and actions

Agenda for 3rd Meeting

a) Agreement of notes from 2nd meeting

b) Discussion of action taken in respect of the action points from the 2nd meeting

c) Consideration of the human rights issues that arise should emergency AWI provisions be reinstated or in connection with ordinary AWI provisions as they relate to the crisis

d) Other matters –

• Proposals for speeding up of AWI delayed discharges by Chief Officers – in collaboration with SG and MWC. Cab Sec supportive of direction taken and Minister for Mental Health to be informed of progress. Chief Officers taking forward with SG and MWC part of group. Some issues may come for AWI group to discuss.
• Looking at the possibility of using legislation planned for Year 1 next year to take  forward short term placement certificate.

a)  Agreement of notes from 2nd meeting

1. The Chair welcomed attendees to the 3rd meeting of the Group and noted apologies. The Chair asked for agreement on the notes of the second meeting and the group were content with the notes and it was agreed that these would be published.

b) Discussion of action taken in respect of the action points from the 2nd meeting underlined below.

Exploring with Healthcare Improvement Scotland whether guidance to address virtual consultations has been issued.

2. Sarah described to the group the advice and guidance that is available online for this. Following this the Chair noted that:

Action 1 : SG to send out the advice and guidance in a formal document to the group who will disseminate to their  own stakeholder groups.

SG, MWC, SWS, OPG and Chair to have a separate meeting to consider what we might collect statistically and how this will be collected.

3. A meeting took place on  Tuesday 1 December 1-2pm with SG, SWS and OPG, with a separate meeting taking place between SG and MWC on 2nd December 2020.

Bob Leslie agreed to put  a set of questions to the SWS MHO group related to the work pressures MHOs are under.

4. OPG provided statistics showing a gradual recovery in the number of PoAs and guardianships received at their office. The group concluded  that there was no practical way to gather statistics on s.47 certificates for medical treatment  as there is no central registration of these certificates. The authoriser of the certificate is free to store the certificate in a place they deem appropriate.

5. The Royal College of Psychiatrists agreed to create a form of questions that could be put to their psychiatric stakeholder group to elicit responses around the pressures of work that they are facing and any other issues of note.

The Chair noted:

Action Point 2- SG to liaise with Roger Smyth on questions to put to his group for data collecting

6. Adrian Ward has collated information and comment from legal and healthcare practitioners, and relevant administrative experience on 2 points he has raised with them. They are  1) experience of “issues around physically distant use of existing legislation”, and (2) the alleged difficulties in persuading GPs to provide AWI reports. 

7. The group concluded that pragmatically it may be too difficult to include adults, guardians and family/carer experience to the evidence needed to be collected. The main issue the Mental Welfare Commission hear about from this group is visiting in care homes. Tracey Ferguson is going to speak to the engagement participation officer at the MWC to see what the main issues they hear about are.

Law Society of Scotland to email Peter with further information on Issues of Sheriff issuing Practice Note:

8. The Law Soc has emailed further details regarding this. SG to consider.

SWS to send queries raised by members to SG. The Chair/SG will explore this with those dealing with vaccinations in SG.

9. Bob Leslie has sent us the queries raised. Guidance has been published regarding s.50 AWI and authorisers of s.47 certificates consulting with guardians, attorneys and interveners before giving treatment (e.g vaccinations).

SG to explore  reluctance of GPs to undertake AWI reports  with primary care colleagues

10. Consulted with primary colleague dealing with the GP contract. Unless the certificate is prescribed within the list below then the GP is not obliged to complete the certificate and can accept payment for doing so. AWI certificates are not on this list.

The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018

Discussion on data collection and action points from 2nd meeting

11. The Chair asked for comments on the above action and comments of what could also be built into the longer term  approach to AWI beyond Covid.  The Chair then asked the group for comments on what they felt would be the practical changes that could take place now.

Social Work Scotland

12. Front loading the system would help with the immediate pressures . There will always be pressure on MHOS. Proposal for short term order needs consideration.  Consideration has to be given to the practical changes that can take place now.

Law Society Of Scotland

13. This has exposed underlying issues and we can learn to do things better. It would help if the information/data is gathered at its earliest point. Adrian Ward had also sent in his paper for consideration – Advance care and treatment decisions and planning, end of life, COVID 19.  This was looking at more longer term changes to AWI. Proposal that a working group is set up to consider issues beyond Covid.

Mental Welfare Commission

Julie Paterson has  been part of  the meeting with the Chief Officers in looking at streamlining AWI processes.  They are considering all of the current barriers in this.

Royal College of Psychiatry

14. Agree with the Law Society on the problem in G.P’s doing AWI reports. Roger Smyth advised that he had received many calls from solicitors struggling to obtain a second doctor’s report. The response has been exacerbated as it is a chronic problem rather than a new problem

The Centre for Mental Health and Capacity Law at Edinburgh Napier University

15. Consideration has to be given as to the human rights aspects.. The easements in the legislation have brought that into a sharper focus.

16. The Chair then sought the group’s approval on the third action point of a new working group to be set up to consider “shaping good practice” for the future.

Action Point 3 : SG to consider Law Society proposal for establishment of new working group for ‘shaping good practice’ for the future.

c) Consideration of the human rights issues that arise should emergency AWI provisions be reinstated or in connection with ordinary AWI provisions as they relate to the crisis

17. The Chair then sought the group’s view on the 3rd agenda item.

Mental Welfare Commission

18. The MWC perspective on current capacity in the system in relation to detention and AWI figures is that there is no sense that the numbers are significantly high in relation to detention comparable to previous years. Intelligence gathering was fragile prior to coronavirus. No real suggestion of re-introducing emergency legislation.

Office of the Public Guardian

19. They have been coping with the guardianship cases. They have a power of attorney backlog that they are working through but there is no suggestion that they need to reinstate the “stop the clock” provisions.

Social Work Scotland (Representing MHOs)

20. Winter is coming and there are pressures on hospital settings. The court system is also under pressure. However,  we don’t see the need to invoke emergency provisions at this time.

Royal College of Psychiatrists

21. Can speak for Lothian ahead of speaking to wider colleagues. This area of work is increasing year on year. The lack of take up of power of attorneys has seen an increase in guardianships year on year.  Practice is getting to optimal, whereas it wasn’t before. The squeeze point is the MHO numbers, not people being off. There is system pressure. Admissions for the frail and elderly are up 20% as other places have closed. Support has gone away. The pressures are not as much as on the MHO’s as there are more doctors. However there is no requirement to introduce provisions.

Scottish Courts and Tribunal

22. The Office of the Public Guardian statistics show that numbers are going up. More solicitors and staff are back. They are getting back to where they were before. The number of people in court buildings is a problem. As workloads increase it gets higher and higher. Have to prevent the building becoming a centre of infection, which could put the whole building out of commission. A reminder that business can be marked as urgent and it will be passed to the sheriff. They are gradually rolling out video conferencing. SCTS are still able to cope with cases and no indication of major delays so would not propose that the emergency legislation is re-introduced.

Law Society of Scotland

23. The rising graphs show the increase in business. There are rises in guardianship applications and there has been rises in power of attorney applications as well.  Clearly having a guardianship order or a power of attorney will help those who are in hospital and the delayed discharge type of cases. Referring to point 32 of the notes from the 2nd meeting, there are reports of increased abuse in England and Scotland. OPG investigations are down, however this may be because of non-reporting due to Covid-19 and therefore they may turn up later. A possible referral to court could follow. Adrian Ward has liaised with OPG on information issued on “stop the clock “provisions and what leaflet is issued by OPG when letter is sent out on guardianship renewal. Mr Ward can propose  Law Society practice guidance is also issued on this point for clarity on the dates.

24. Obtaining interim powers should be less onerous . SWS commented on defending actions in court and there is a well- developed mediation practice in England and we don’t have that here in Scotland. There are current worries about the situation in January and partly the backlog but we are not at the tipping point yet. Therefore there is no need to bring back the emergency legislation but it could be a matter of weeks.

The Centre for Mental Health and Capacity Law at Edinburgh Napier University

25. We are dealing with vulnerable group of people so we need to balance that against the obvious pressure in the system. In doing so we need to ensure that we protect human rights as much as possible. Given the pressures on one side and the vulnerability of the people we are dealing with then can it be said to be proportionate to bring back in the emergency legislation. It cannot be said to be proportionate at this stage.

26. The Chair asked for any additional comments on re-introducing the legislation.

Office of the Public Guardian

27. The option is there to hit the pause button and this alleviates the immediate pressure but the cases are still there and that is the difficult problem. Essentially you are making the delays in the process worse. Given that we don’t have the data to back up that we are at tipping point then need to focus on quick fixes.

Mental Welfare Commission

28. Agree with OPG. There have been concerns that Mental Health Officers have been mobilised elsewhere. Agree that we need more evidence before we consider bringing back the emergency legislation.

Social Work Scotland

29. Consideration on increasing MHO resources. There is work underway . Bob Leslie has been working with Iona Colvin at the Office of the Chief Social Work Adviser. More money has been made available for training. All 32 local authorities are bidding for £500K. The primary role of MHOs is as a social worker. There can be a battle between managers for how they are used. There is only a small pool of qualified people acting as MHOs. There is no formula for the number of MHOs in , only that local authorities should appoint a sufficient number.

d) Other matters- Proposals for speeding up of AWI delayed discharges by Chief Officers – in collaboration with SG and MWC.

30. Peter took the group through this and his involvement in the work. These proposals will be put to the group once the Chief Officers have approved them. This should assist in helping to achieve some quick wins in speeding up some of the AWI processes and it will be helpful to have the group’s input into this. This can be discussed at the next meeting.

Looking at the possibility of using legislation planned for Year 1 next year to take  forward short term placement certificate.

31. Peter explained that work had previously been undertaken with a working model formulated on this proposal and this was under consideration dependent upon obtaining a suitable legislative slot . The proposals that have been worked on will be put to the group prior to next meeting and discussion around this can take place.

Action Points from 3rd AWI meeting

Action 1-SG to send out the advice and guidance from Health Improvement Scotland in a formal document to the group who will disseminate it to their  own stakeholder groups

Action Point 2- SG to liaise with Roger Smyth on questions to put to his group for data collecting

Action Point 3- SG to consider Law Society proposal for establishment of new working group for ‘shaping good practice’ for the future.

Action Point 4 -Short term placement certificate –  The working model for this is to disseminated to the group before the 4th meeting and the proposals around this are to be discussed as it will be an agenda item ahead of the next meeting.