Vulnerable adults and coronavirus in Scotland

Rachel Walker, solicitor and associate at the Legal Services Agency, discusses the provisions for vulnerable adults in the coronavirus legislation.

The Coronavirus (Scotland) Act 2020 came into force on 7 April 2020. This legislation has received significant attention in the Scottish media, particularly the proposed changes to practice within the area of criminal law.

Little has been mentioned in the media, however, regarding the provisions for vulnerable adults.

Provisions in relation to vulnerable adults can be found within Schedule 3. These provisions, where enacted, will remain in place until 30 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. schedule 3, part 2, relates specifically to the care of adults with incapacity. Within this section there are amendments to various pieces of legislation, the majority being to 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. For someone to be moved under this provision they must agree to the move. When considering using Section 13ZA the principles laid out in S1 of the Adults with Incapacity (Scotland) Act 2000 must be taken into account.

The Coronavirus (Scotland) Act 2020 makes two changes in respect of the use of Section 13ZA which will only come into force upon the passing of Regulations by the Scottish Ministers.

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. 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 ECHR. 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) 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.

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.

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.

Guardianship Applications

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 Applications

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 must 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.

While the 2020 act 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 following the period of the legislation.

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 updated advice on 3 April 2020 that where it is not possible to conduct an assessment in person it may be done using video conferencing or telephone where possible. From experience, doctors and Mental Health Officers have been willing to accommodate the current circumstances.

Prior to 29 April 2020 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 an unknown date. Although, arguably, if interim orders are required 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 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.

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