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

Attendees and apologies

Attendees:

• Tracey Fergusony, 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 
• 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
• Holly Dyce, Scottish Government Legal Directorate (SGLD)

Apologies:

• Royal College of General Practitioners 
• Royal College of Psychiatrists   

Items and actions

Welcome and introductions

The Chair welcomed attendees to the 1st meeting of the Group and noted apologies. The Chair described where adults with incapacity (AWI) sits within the Scottish Government. There has been some reorganisation lately bringing mental health and social care within the same directorate. AWI is now part of the Mental Health and Incapacity law Unit within the Mental Health Division. The Mental Health Division sits in the Mental health and Social Care Directorate. An organogram will be sent to the group and the group are free to send this around to their colleagues for information.

Action:

• Peter Quigley to send group an organogram of the Mental Health Division  

The Chair described the agenda as below:

• discussion and agreement on remit of the group as per the document disseminated to the group prior to the meeting
• AWI Act - 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 issues around physically distant use of existing legislation

Discussion and agreement on remit of the group

Comments were invited on the remit of the group. One was that there was no mention of human rights in the actual remit, although they were mentioned in the second paragraph below. Human rights considerations should be in the remit of the group itself. Adrian Ward also thought the remit of considering issues around  physically distant use of existing legislation should refer to changes in practice. All participants supported these changes.

Action:

• Peter Quigley to send out amended remit of the group for agreement

Consideration of evidence and human rights for commencement of temporary provisions

Scottish Courts and Tribunals 

Sheriffdom Business Managers have been contacted for views, along with Sheriffs Principal. All courts are up to date with AWI applications and renewals. There was a backlog in early June which is now no longer there. A lot of solicitors were furloughed at this point, however most are back along with administrative staff. The opinion from Sheriffs Principal is that there is no need to extend the provisions. There are no further delays from medical and mental health officer reports. The only risk would be that if tier 4 came in there could be a problem as staff couldn’t come into work or cross areas. 

Office of the Public Guardian (OPG) 

OPG report a similar picture to the courts. They are working business as usual and all staff are working, with some working from home. They are continuing to receive guardianship orders and powers of attorney (POAs). Numbers are down from last year but there has been an uptake in the last quarter to the end of September. 3000 POAs were received as oppose to 1800 in the previous quarter. They forecast 41,000 POAs by year end as oppose to 81,000 last year, although the numbers are slowly moving up.

Social Work Scotland (representing MHOs) 

They are under pressure and were caught off guard by the suspension of emergency provisions for guardianship. They weren’t supportive of the decision to suspend the ‘stop the clock’ measures, along with the Royal College of Psychiatrists and the Mental Welfare Commission. They are aware it wouldn’t be a quick process to bring them back in. Services are extremely fragile and the staff position is not comfortable. Removal of the emergency measures has added pressure. Some staff are self-isolating and it won’t take much if they lose more staff to be unable to do reports. There has been a 30% increase in AWI referrals. They are struggling to get medical reports and most medical colleagues are not doing AWI reports. GPs are refusing to do AWI reports, or go and see patients resulting in two s.22 reports by psychiatrists having to be instructed instead (as oppose to 1 GP and 1 psychiatrist report). This has a knock on effect to the MHO report which then takes longer. The courts don’t see the challenges in obtaining medical reports, they only see the full application when it reaches the court.  

Coming into Christmas there are winter pressures and it is a very vulnerable and fragile message across the 32 local authorities. The courts are slow and because there are no physical hearings, it is a number of days after the hearing before MHOs and other interested parties are hearing whether the order has been granted. This is delaying discharge from hospital, as it is difficult to secure care placements and it is a challenge keeping these. There are outbreaks of Covid-19 in care settings. Those in front line services take the pressure of delayed discharge and it wears staff down.

Mental Welfare Commission 

They are hearing of a lack of solicitors, with solicitors not back to full time hours. MHOs shielding, no advocacy and difficulty accessing doctors reports. Further intelligence is needed for different parts of Scotland for tiers. Do we have sufficient intelligence across the board (e.g for pressures on doctors and MHOs)? How do we get this information? MWC and SWS may be able to obtain this information. What do we mean by a differentiated approach across Scotland and how does this fit with the emergency provisions?

SWS advised that it was hard to gain intelligence at the start to inform conversations around the Mental Health Act emergency provisions. There wasn’t a 100% return, however they could undertake this exercise again and could look for any intelligence the group wanted answers on.

The Chair suggested we could do this exercise in parallel with the Mental Health Act stakeholder group. There could be data collection on an authority by authority basis. How is a differentiated approach practical and reasonable?

Law Society 

Adrian Ward pointed out that every POA granted with appropriate powers potentially rendered a guardianship application unnecessary. The clock was stopped for guardianships across the board and has now restarted. There were a small number of cases where the Sheriff imposed a time limit explicitly to ensure human rights compliance, particularly where the order sought could result in a deprivation of liberty. Operation of stop-the-clock provisions in relation to such orders potentially result in unlawful deprivation of liberty once the original period of the order has expired. Could there be an exception from stop-the-clock provisions in such cases?

In discussion it was suggested that guardianship orders of up to 12 months could be excepted from stop-the-clock provisions. This approach was supported by SWS. This may require primary legislative change and could be difficult. If this was the direction SGLD would have to consider this further.

Law practitioners have been told that some GPs claim that they are being discouraged by BMA from doing AWI reports. It is useful to look at the Public Health Scotland report. Discharge statistics between 1st March – 31st May 2020 indicate that there were 417 patients who were unable to consent to transfer out of hospital. S.13ZA should not be used where a deprivation of liberty results, which is likely in most cases. It would be useful to know how in legal terms they were processed. Were they recorded at all? Where people have been moved without legal authority they will need guardianship or intervention orders to pursue the remedies to which they are entitled, and local authorities will be obliged to seek such orders if no-one else does so.  Furthermore, if in the past such orders have not been sought to render such moves lawful, in future they will be required, also creating an extra load on the system we will have to be aware of.

England and Wales has a separate procedure to authorise deprivations of liberty. In consequence, there are substantially fewer applications equivalent to welfare guardianship applications, and combined applications are a rarity. Most solicitors in Scotland tend to add on welfare powers if they are making an application for financial powers even if welfare powers are not immediately required but it can be demonstrated that they are likely to be required in the future. That avoids the disadvantages for the adult and others of being subjected to the whole procedure again, and the risks of delay in obtaining welfare powers when they are needed, due to difficulties and delays in obtaining required reports timeously. As a matter of cooperation to ease pressures during the emergency, the Law Society could possibly be requested to steer legal colleagues to make applications for financial guardianship only, where that was appropriate, provided that it could be shown that there would be no undue delays in obtaining subsequent welfare orders, nor additional cost to the adult or to applicants.

SWS noted that if there is a welfare element then non means tested legal aid is available and therefore welfare powers get added on.

The MWC has been doing some work with Health and Social Care Partnerships in relation to s.13ZA. They have some intelligence that people have been moved from hospital to care home without legal authority. They have asked for data on all moves. By the end of December they will have identified any further work to be done.

Action:

• Peter Quigley to put together a set of questions we can address to further inform decision making

MWC noted that MHO capacity in local authorities would be one piece of intelligence to use.

SCTS advised that they only see the application coming into the courts and that there are some issues with hearings. The courts have decided AWI hearings have to take place. There are plenty of times when the court is not so busy to schedule these. They were unaware of there being a delay when disposals come out so the effect of this will be fed back to colleagues. Some staff and sheriffs are working from home, so there can be delays. Sheriffs would be uncomfortable approving welfare powers if only financial powers were required.

Conclusion

The Chair advised that we are looking to develop a set of questions and data sources to inform future opinions from the group. There is potential for geographic information and information on different themes. We can move into a position where Ministers have a wider range of evidence with which to make a decision.

We will feedback to Ministers capturing SWS points about capacity of the system to cope, plus the positive situation around the courts and OPG. However there is not enough information at present to recommend reinstatement of the temporary provisions. All parties were in agreement.

AOB

Time overran, so consideration of issues around physically distant use of existing legislation will be picked up at the next meeting. There was no other business. The Chair thanked attendees and a date for the next meeting will be circulated in due course.

Mental Health and Incapacity Law Unit
November 2020