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

Attendees and apologies

Attendees:

• Tracey Ferguson, Mental Welfare Commission
• Allister Wilson, Scottish Courts and Tribunals Service
• Bob Leslie, Social Work Scotland
• Adrian Ward, Law Society of Scotland
• Debra Allison, The Office of the Public Guardian
• Roger Smyth, Royal College of Psychiatrists 
• Colin McKay, 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:

• agreement of remit and notes from the last meeting, bearing in mind they will be published online 
• consideration of issues around physically distant use of existing legislation.
• by reference to the list of questions compiled from the last meeting (attached) - Consideration of evidence and human rights for commencement of temporary provisions for guardianships and s.47 certificates for medical treatment within the Coronavirus (Scotland) Act 2020
• consideration of the continued operation of the Adults with Incapacity (Scotland) Act 2000 during the coronavirus pandemic.

Agreement of remit and notes from last meeting

The Chair welcomed attendees to the 2nd meeting of the Group and noted apologies. The Chair asked for comments on the amended remit and the group were content with the revisions previously lodged.

The Chair asked if the notes from the last meeting were agreed. Concern was raised regarding identification of individuals or organisations such as hospitals, given the notes are to be published. The Chair advised that the default would be to anonymise in these instances and that as a safeguard the notes would always be brought back to the group for agreement before publication. The group agreed the notes from the 1st meeting.  

Consideration of issues around physically distant use of existing legislation

Social Work Scotland (representing MHOs)

This has been good since the start of lockdown and the bigger challenge seeing the adult and meeting applicants for guardianship reports. There are a lot in the highly vulnerable and shielding groups that are using alternative technology. There has been the increased use of telephone calls. This has been narrated in the AWI reports and the Sheriffs have been understanding and aware of its limitations.

The biggest challenge has been care homes as there has been resistance to access, despite guidance advising professional visits can take place. An example being in relation to ASP investigations.

The picture emerging is that everything is taking longer . Solicitors are having a challenge in taking instructions from private clients. Some local agents have Covid proofed their offices. The current AWI processes are taking longer due to Covid, and some of this will include hospital discharge as the delays to this have been lengthened.

Scottish Courts and Tribunal 

The courts deal with a vast number of people and they are still technically closed to the public. The public can only come into buildings if they have a court case and are required to attend. Social distancing has been marked out, face masks are required to be worn and there are limits on court capacity. The public offices are not open.

Currently in terms of cases, AWI is a small area. Most civil business is by written submission or by teleconference. At the first calling of an AWI case it is unknown whether the adult will be present. The cases are dealt with in court rooms. Previously they were dealt with in chambers but they are not spacious enough. Most AWI cases are undefended. If they are defended then they are rolling out videoconferencing. There have been none for AWI as yet, but have been for other civil cases. Most AWI cases are continued to a further hearing where they are dealt with. The biggest concern is the number of people coming in and out of the building.

The Chair summed up that AWI business was getting dealt with but under constraints . 

Adrian Ward in capacity of officially being appointed to the group on behalf of the  Law Society will ask law practitioners about the broader picture. Adrian added that he was aware that individual skills to undertake online appointments vary considerably. Sometimes the remote experience can be like receiving a monologue and there could be scope for some guidance on do’s and don’ts to address the variation in the skills required for this role.

The Chair noted this 

Action 1:

• exploring with Healthcare Improvement Scotland whether guidance to address virtual consultations  has been issued

AWI Team to explore this matter further.

Mental Welfare Commission

After liaising with advocacy, it has been discovered that some rural areas don’t have the appropriate equipment and technology to conduct face to face interviews, such as NHS Near Me. The picture is variable across the country with reports of positive and negative experiences for people. Local areas are carrying out risk assessments to determine if visit is essential given current situation. Commission are hearing that more face to face interviews are now being conducted, where appropriate and necessary, this is much better than at the start of the pandemic. At the beginning of pandemic hearing that SW and MHO’s couldn’t access places to interview people. Hearing now that this has changed, but still depends on specific areas, and case by case basis. Also comes down to how areas are interpreting what is an essential visit. 

The Chair invited comment from the other members of the group. Adrian Ward questioned whether some people were looking for face to face interviews when they didn’t need it. There was already Law Society guidance around how to conduct a power of attorney interview remotely. ‘Interview’ doesn’t necessarily mean face to face. If the professional knows the person, then they can interpret remote interviews better.   

Questions arising from 1st AWI stakeholder meeting 30 October 2020

Do we have sufficient intelligence across the board (e.g for pressures on doctors and MHOs)?

Law Society of Scotland

Law Society questioned whether there were any statistics on how long it has taken to get the MHO report as aware that the statutory requirements stipulate 21 days however this was not being met. Could this be gathered per authority and compared with the number of MHOs in each area, which can be seen from the SSSC annual report on MHO numbers?

Social Work Scotland

This is a legislative conundrum as there are practical difficulties with the number of days given for reporting in the legislation. 

Where the local authority make the application for welfare guardianship the reporting timescales are:

• 30 days (before lodging of the application at court)  - 2 medical reports
• 30 days (before lodging of the application at court) – MHO report

Where the applicant is not the local authority the timescales are:

• 30 days (before lodging of the application at court)  - 2 medical reports
• 21 days (after applicant gives notice to Chief Social Work officer on intention to make application) – MHO report

 They have to wait for the medical report to see if the adult is incapacitated before going ahead with the MHO report. The medical assessments are not being completed within the timescales. 21 days are given to produce report where it is not the local authority, however sometimes the MHO cannot see the adult for 2 months . The MHO report depends on receiving the draft application from the Solicitor .A MHO report cannot be completed without this draft application. 

The length of time from point of request of the MHO report to delivery varies depending on how quick the work is allocated, how quickly it is completed, waiting on information from solicitors.

The SSSC MHO report doesn’t give the true MHO picture of those that are available to do the work. How MHOs are allocated differs - some of the MHO’s are managers, some have their core role as a social worker. It is a complex picture and not all local authorities have the ability to report how long it takes due to their IT systems.

MHO census data is due next month for the publication next year. MHOs will be counted but it will not reflect the true picture of what is happening on the ground. MHO managers need to have a dialogue with SSSC to include some narrative, as this document informs SG decisions.

Adrian Ward commented that the workload for MHOs has doubled whilst the numbers have dwindled, which is the underlying issue. The solution would be for SG to put extra resources into recruitment, training and retention of MHOs. If there were more MHO’S then it would be easier to persuade applicants to apply solely for financial powers and get welfare powers at a later date when they were needed.

The Chair highlighted that it seemed difficult to produce stats in a meaningful way, across the piece that is consistent.

Mental Welfare Commission

The pressure is greater in some areas than others . Clearly some MHO’S are shielding and there are never sufficient numbers of MHO available.

Renewals-unclear about how many renewals required in this period, difficult to know how this added pressure is affecting areas as some areas have waiting lists in terms of AWIA work.

Office of Public Guardian

Can provide statistical information on numbers of guardianships that are due to expire and therefore will require a renewal application.

Social Work Scotland

At the beginning of the MH Act they put out a headline questionnaire to members. We could do similar now. MHOs are inundated by other requests e.g FOI. So if the questions are kept tight, not too many, the benefit to them of the questionnaire is demonstrated and it is easy to respond to then people will respond.

Royal College of Psychiatrists 

It seems to be easier to measure the Mental Health Act as there are enforced statutory timescales. These hard lines in the MH Act are meaningful. In terms of AWI work we know that the timescales weren’t achieved pre covid and this has got worse since covid.

Will government then say there will be relief provided only to covid related delays or is a delay a delay? Do we then have a base of comparison from November 2019?

The Chair summarised that there was a lack of information to go forward. 

Law Society of Scotland

Linking to the fourth remit point of Consideration of the continued operation of the Adults with Incapacity (Scotland) Act 2000 during the coronavirus pandemic, this matters much more than a year ago, with the effect of covid.

Adrian Ward advised he would get feedback from law practitioners on whether they think Law Society guidance would help some of the issues they come across.

Action 2:

• SG, MWC, SWS and OPG to meet for a separate meeting on stats. They are to consider what we might collect statistically and how this will be collected

Peter to organise meeting.

Consideration of the continued operation of the Adults with Incapacity (Scotland) Act 2000 during the coronavirus pandemic

Law Society of Scotland

Concerns have been expressed about where a time period of a guardianship was limited because of human rights issues in the case. There has been discussion on whether having an interim order would be better. The only negative aspect is that it can be granted without hearing and therefore no-body there to oppose the order.

There was discussion around giving Sheriffs discretionary power to decide the form of an application for a deprivation of an adult’s liberty. This could be done by a practice note from the Sheriffs Principal.

Additionally it had been noted by the OPG in England that there had been an increase in financial abuse there. OPG indicated that this was an issue anecdotally.

Action 3:

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

The Chair invited all member’s to provide comment on the fourth and fifth part of the remit.

Social Work Scotland

There had been questions around AWI about immunisations for COVID and the necessary legal authority that is required to provide a COVID vaccine, especially for unlicensed vaccines.

The Chair highlighted that if the MWC and SG  has guidance on this matter then happy to share this around. Happy to explore this issue and feed into vaccinations side of things.

Action 4:

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

Mental Welfare Commission

Hearing from areas across country that MHO’s and Social workers are finding difficulties with getting AWI reports from GPs. 

Action 5:

• Peter to explore  reluctance of G.PS to undertake AWI reports  with primary care colleagues

Scottish Courts and Tribunals

They will be getting through more business from the end of this year as the courts will be operating jury trials from cinemas . This will have a knock on effect on Sheriffs’ capacity as they will be busier, so may prove a problem if AWI work increases. 

Royal College of Psychiatrists 

There is a Scotland-wide Psychiatry network with representatives from each geographical region and psychiatric speciality. Dr Smyth offered to request feedback or answers to specific questions via this route if required.

The chair thanked everyone for their attendance and summarised the main action points below:

Action points

Action 1: Exploring with Healthcare Improvement Scotland whether guidance to address virtual consultations has been issued.
AWI Team to explore this matter further.

Action 2: SG, MWC,SWS and OPG and Chair to meet for a separate meeting on stats. They are to consider what we might collect statistically and how this will be collected.

Action 3: Law Society of Scotland to email Peter with further information on Issues of Sheriff issuing Practice Note.

Action 4: SWS to send queries raised by members to SG. The Chair/SG will explore this with those dealing with vaccinations in SG.

Action 5 : Peter to explore  reluctance of G.PS to undertake AWI reports  with primary care colleagues