Adults with Incapacity Emergency Legislation Commencement Consideration Group minutes: February 2021

Minutes from the fifth meeting of the group, held on 16 February 2021.

Attendees and apologies


  • Tracey Ferguson, Mental Welfare Commission
  • 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
  • Diane Strachan, Scottish Government Mental Health Division


  • Allister Wilson, Scottish Courts and Tribunals Service

Items and actions

Agreement of notes from fourth meeting

The Chair welcomed attendees to the 5th meeting and noted apologies. It was agreed that the minutes of the 4th meeting would be sent round again for any final amendments and be published soon afterwards.

The Chair provided an up to date picture on the COVID situation. There had been a downward slope of the spike. The rate of decline of new cases is slower than the previous peak. The key reason for this is the new variant which has been more infectious. The hospitalization rate should fall and deaths should follow that. It is higher than where we should be due to the variant. The vaccinations are on track for all four priority groups and numbers 5 and 6 will be follow.

Feedback from each area on practical situation ‘on the ground’ and opinion on whether emergency provisions should be reinstated

The Chair then sought feedback on the second agenda item above.

Office of the Public Guardian:

There has been no change from the last meeting except with staffing having some constraints due to childcare. They are able to cope with urgent work and there is no need to put the pause button on by bringing in the emergency provisions. OPG understand that this is also the SCTS position. 

Mental Welfare Commission:

The intelligence from parts of Scotland and the MH Workforce and different health and social care partnerships are that some staff are shielding and isolating and in some other areas things are operating normally. There is no intelligence to suggest that emergency legislation needs to be brought back in. 

Social Work Scotland:

MHO capacity has been fragile and there is a mixed picture across different areas. Some of the relentless pressure is taking its toll. There is an ongoing challenge and the demand for AWI is not easing across the country. However despite the pressures we do not need to bring back the emergency legislation.

Royal College of Psychiatrists:

Roger Smyth’s experience of being in Covid wards reflects the picture that the Chair set out at the start of encouraging fall in numbers. Roger managed to speak to over 100 colleagues on AWI in a recent conference call to establish the current problems faced in dealing with AWI cases and they highlighted some overwhelming problems. However when these problems were broken down further, the actual problems come back to pre-March problems. The pinch point and vulnerability is with MHOs not with psychiatrists. Nothing from this side that suggest that the emergency measures are required.

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

Agree with comments made and nothing to add.

Law Society of Scotland:

On the one hand the picture is variable. Nobody is saying that you need to bring in the stop the clock provisions. In the profession some had felt that it didn’t solve anything but added to the workload, worsening the situation, when the provisions ended and there was pressure to catch up with a backlog. On a longer-term view, stop-the-clock provisions proved to be counter-productive, and that would be likely to  happen again – or even more so – with any repetition, given the descriptions of the graph going only slowly downward, in that any re-starting of the clock would be likely to generate an enhanced workload still in times of some difficulty. The real issues are not pandemic caused but pandemic revealed.

The accounts by others of the major impact of shortage of MHOs is most certainly reflected in the experience of the legal profession. There was the further issue that previous temporary measures, even those that were not brought into force, created in some quarters an atmosphere of “everything goes” so that, for example, although modifications to section 13ZA of the Social Work (Scotland) Act 1968 were never brought into force, in some quarters people were acting as if they were in force when they were not. Have to also be careful about overlaps in AWI, Mental Health and Criminal Law. Practitioners have raised concerns about mentally disordered offenders or accused persons in criminal processes.

Other issue that was raised was the thousands of discharges that were undertaken from hospital, that were done with or without authority. Concerns have been raised to the AWI policy team on this and there is an outstanding request for further information to see if Scottish Government have these figures. The Law Society of Scotland are looking to find out numbers of adults with incapacity who were dealt with, whether they consented to the transfer and if not, what legal authority was used.

Mental Welfare Commission:

Carrying out a piece of work around hospital to care home moves at start of the pandemic, this includes sampling approx. 500 cases of people who lacked capacity and were moved between 1st March-31st May 2021. Hoping to have report written up end of March, along with any recommendations. 

Social Work Scotland:

Bob Leslie advised that the information the Law Society of Scotland were seeking is not easily available. Any such information is likely to be held by health boards and would be likely to fall foul of FOI request based on the amount of time taken to find the information.

Law Society of Scotland:

Adrian Ward reported that Julie Paterson had helpfully advised him of the work of analysis being done by Mental Welfare Commission, as reported above. That involved detailed sampling of what happened in the selected cases (representing about 10% of the discharges which had caused particular concern). The Law Society’s outstanding request, not yet converted into an FOI request, was for simple overall statistics as to how many of those discharged were assessed as having capacity to consent to the discharge; how many gave informed consent; how their consents were recorded; and what procedures were followed in respect of all others, including those assessed as lacking capacity to consent. The Law Society had enquired as to whether an FOI request could appropriately be addressed to Scottish Government, but it would appear that they were not and requests might have to be made on a much wider basis, potentially encountering the difficulties reported by Bob Leslie above.

From now on, there clearly must be a system of recording this information in the future, including as to the legal basis of moves. 


The Chair indicated that MHO officers are an important part of the mental health workforce. Scottish Government are alert to Mental Health Officers workforce issue . This is in the list of priorities and we are engaging with Social Work Scotland, on how we can make the role more attractive and funding issues. This will also look at having sustainability when pressures are on. 

The Chair then summed up the group’s views that at present there was no need for the emergency provisions. There is still strain in the system and where we are in the part of the pandemic. We have to feedback on the Mental Health Officer workforces issues.

Scottish Government AWI Policy 

Peter then provided an update on short term order legislative proposal. The bid for legislative slot had been submitted. This was still being considered and an update would be provided as soon as we become aware.


The Chair then set out the current election process for Parliament. Parliament was going into recess but there was still an ability to recall Parliament if anything significant occurs. The pre-election period will start from 25th March and run through till the May elections.

There were no actions points.

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