Publication - Advice and guidance

Coronavirus (COVID-19): adults with incapacity guidance

Published: 8 Apr 2020
Last updated: 26 Oct 2020 - see all updates

Advice on temporary changes to adults with incapacity arrangements.

Published:
8 Apr 2020
Coronavirus (COVID-19): adults with incapacity guidance

Emergency provisions

The Coronavirus (Scotland) Act 2020 contains emergency provisions in three areas relating to adults lacking capacity. They are found in Schedule 3, Part 2. 

They are:

  • easements to the requirement in s.13ZA of the Social Work (Scotland) Act 1968 to consult the adult and interested parties when moving an adult to residential accommodation
  • ‘Stop the clock’ provisions for guardianships, meaning that whilst the provision was in force the guardianship order was effective, but the time to expiry was paused. This dealt with the issue of possible expiry of guardianships before a renewal application could be lodged at court
  • ‘Stop the clock’ provisions for s.47 certificates for medical treatment, meaning that whilst the provision was in force the s.47 certificate was effective, but the time to expiry was paused. This dealt with the issue of possible expiry of certificates before a doctor could re-certify

This is a replacement to guidance published on 8 April 2020.

Expiry of s.13ZA provisions

The easements to s.13ZA contained in paragraph 11(1) of schedule 3 of the Coronavirus (Scotland) Act 2020 were the only provisions within the Act that did not commence following Royal Assent on 6th April. Even at the height of the pandemic the fine balance between the right to life and the right to be consulted was not such that the provisions should be brought into force.

Following stakeholder consultation, Ministers have concluded that there will be no conditions that are likely to exist which would lead to the provisions being required in the future. Therefore these provisions will expire on 29th September through The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020.

Suspension of guardianship provisions

The guardianship provisions came into force the day on the 7 April. At that point the courts were only hearing urgent interim guardianship cases, the Office of the Public Guardian had a minimal amount of staff available and there were less doctors, mental health officers and solicitors available to complete the documentation required for guardianship (and renewal of guardianship) applications. Therefore to avoid guardianship applications that would have been renewed during this period from expiring before a renewal application could be lodged at court, and leaving the adult without appropriate protection, the provisions were brought in.

The conditions that existed when the provisions were brought in do not exist at present. Courts are dealing with guardianships as business as usual and the Office of the Public Guardian has more staff available. There are more doctors, mental health officers and solicitors available to process applications. However Ministers acknowledge that this may change due to the increase in prevalence of Covid-19 and have therefore decided, whilst extending these provisions along with the majority of provisions in the Coronavirus (Scotland) Act 2020, that they should also be suspended.

Suspension of s.47 provisions

The s.47 provisions also came into force on 7 April and there is similar reasoning to the guardianship provisions for bringing these into force. The requirement for doctors to deal with pandemic related issues meant there was a possibility that certificates might not be re-certified, leaving adults without proper authority for medical treatment.

These conditions have eased and acknowledging the increased prevalence of the virus Ministers have decided to extend and suspend these provisions in the same way as guardianships.

Regulations

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 extend the expiry date of Part 1 of both Scottish Acts (covering guardianship and s.47 provisions) from 30 September 2020 to 31 March 2021 and comes into force on 29 September 2020.

The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020, amongst others, expires schedule 3, Part 2, paragraphs 11(1) of the first Scottish Act which relate to s.13ZA provisions.

Separate regulations have been made under the Coronavirus (Scotland) Act 2020 (Suspension: Adults with Incapacity) Regulations 2020 to suspend schedule 3, Part 2, paragraphs 11(2) and 11(3) of the first Scottish Act which relate to guardianship and s.47 provisions.

Calculation of new expiry dates for guardianships and s.47 certificates

The ‘clock was stopped’ on 7th April 2020 (when the Act came into force) in relation to the duration of guardianships and s.47 certificates. On suspension of these provisions, the ‘clock started’ and the period for which the guardianship or s.47 certificate is in force resumed. 

The provisions are suspended from 30th September. Therefore the clock was stopped from 7th April up to and including 29th September. This equates to 176 calendar days.

Therefore 176 days need to be added on to the original date of expiry of the guardianship or s.47 certificate to calculate the new date. For example:

Original guardianship/s.47 certificate expiry date – 20th April 2020 
Add on 176 days
New guardianship/s.47 certificate expiry date – 13th October 2020

You should note that the clock is stopped on all guardianship/s.47 certificates that were in existence when the provisions came in to force, not only those which would have expired during that period. For example a longer guardianship that expired in 2025, for instance, would still have had the clock stopped on it, so 176 days have to be added on to the expiry date. For example:

Original guardianship expiry date – 23rd May 2025
Add on 176 days
New guardianship expiry date – 15th November 2025

For the limited number of guardianships granted whilst the provisions were in force, the number of days from when they were granted until the provisions were suspended should be added on to the expiry date. For example:

Date guardianship granted – 3rd June 2020
“clock was stopped” up to and including 29th September 2020
Therefore number of days to add on to expiry date – 119
Guardianship granted for 3 years
New guardianship expiry date – 30th September 2023

And finally, for those guardianship/s.47 certificates granted from 30th September 2020 onwards, no additional days need to be added.

Consideration of reinstatement of provisions

Consideration of whether the provisions should be reinstated will be very similar to the process of deciding to suspend the provisions. We will engage closely with stakeholders to gauge the practical situation, looking at the availability of the courts, the Office of the Public Guardian, mental health officers, doctors and solicitors.

At the same time we will look at human rights considerations and will engage with stakeholders regarding these. There is no easy way of obtaining a threshold ‘figure’ at which provisions can be brought in. It will require consideration of a complex mix of practicalities and human rights, with views obtained by regular engagement with stakeholders.

 

 

 

First published: 8 Apr 2020 Last updated: 26 Oct 2020 -