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

Minutes from the fourth meeting of the group, held on 11 January 2021.

Attendees and apologies


  • Julie Paterson, 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 
  • 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
  • Holly Dyce, Scottish Government Legal Directorate (SGLD)


  • Allister Wilson, Scottish Courts and Tribunals Service

Items and actions

Agreement of notes from 3rd meeting

The Chair welcomed attendees to the 4th meeting of the Group and noted apologies. The Chair asked for agreement on the notes of the third meeting and the group were content with the notes and it was agreed that these would be published.

Discussion of action points from 3rd AWI meeting

The Chair asked Scottish Government to go through the action points of the 3rd meeting .

It was confirmed that the first action point  had been completed and that was for SG to send out the advice and guidance from Health Improvement Scotland in a formal document to the group who will disseminate it to their own stakeholder groups

Action point two had has been completed and SG had liaised with Roger Smyth on questions to put to his group for data collecting. Due to the Christmas break some replies had been received from the Psychiatry group but other responses were anticipated now.

In terms of action point three which was for SG to consider Law Society proposal for establishment of new working group for ‘shaping good practice’ for the future. There hasn’t been the time to consider this proposal. It will be considered properly at a future date once the immediate pressures are alleviated.

The fourth action point has been actioned and the working model for a Short term placement certificate  has been disseminated to the group before the 4th meeting. Comments have been received back in relation to this. A bid for a legislative slot to potentially take this forward has been proposed and SG are awaiting to hear back if this will be granted.  

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

Mental Welfare Commission:

Nothing has been brought to the attention of the Mental Welfare Commission on the advice and guidance helpline to evidence that the emergency legislation needs to be re-introduced. The Mental Health Officers situation is difficult but we know that this service is fragile and has been for many years. 

Office of the Public Guardian:

There is no indication that we are struggling and need to put the pause button on. OPG staff have laptops and are able to work from home and they have essential staff that are able to attend the offices to deal with the situation.

Social Work Scotland:

We don’t need to hit the activation button yet on the emergency legislation. The paper that Bob Leslie circulated tells us what the picture is in the local authorities. They are well aware of the MHO workforce challenges. Generally staff are at tilting point and their goodwill is reducing. There is a lot of anxiety over the new Covid strain. There has been indication that some staff around the country have caught Covid and are absent as a result of this.

They are aware of delays coming from the courts. The delays are arising in communicating the outcome of a case. The hospitals are maxed out on bed availability and everyone awaits for court date which is taking about one week because there can be a delay in the papers going to the clerk or to the Agent. Legal colleagues are stating that they are unable to obtain the results from the Court and this is impacting on AWI delayed discharges. There is no easy way around it. AWI reforms are out-with our control. They need to reform staffing which is fragile 

Law Society of Scotland:

They have had a lot of interaction with private sector Solicitors and the response has been at this stage that we do not need to re-activate the legislation. There are delays and these are being addressed. Adrian Ward will explain the POA registration plan in the mental capacity newsletter. There was a big response from the MHDSC to request for comments on expediting AWI applications through law firms. Adrian Ward has given permission to SG circulate the document to the group. There are two points to emphasise, first that private practice are getting frustrated with guardianship delays. Secondly the MHO staffing is still major issue. 

Scottish Government need to address this as it causes discrimination and consequentially it is not good having public authorities not being human rights compliant. The other thing that came through was the huge variation in practice and efficiency of courts. Practitioners are describing huge discrepancies across the country. There are some areas that are getting good results and are doing better than others. There has to be some lessons learned for from those who have found solutions.

The Chair advised there was a commitment in the mental health recovery and workforce plan to review the mental health workforce. He is keen for SWS to be involved in this. The Chair then invited some additional comments from the group on the MHO workforce issues.

Royal College of Psychiatrists:

There is no need to bring in emergency legislation at this stage. Roger Smyth had sent out questionnaire to the group and received some responses back although  anticipates that he will receive more over the coming days as the holidays are over. This has echoed that there is considerable delay all across the system. MHOs, GPs – but there were already delays. It is an exacerbation of an existing problem.

Social Work Scotland:

The Scottish Government MHO Award Grant Scheme which commenced last year commits ½ million per year over three years. This is available for bids each year. The extra money should be used around releasing staff and backfill for candidates and practice assessors that are needed. The scheme existed prior to the pandemic and is not a response to pandemic challenges. The pandemic has highlighted challenges which were already being faced with the MHO workforce nationally.  It can take 18 months for training as there are three different programmes that need to be attended. These programmes have to be attended at different times of the year. 

In terms of the current picture from Sheriff courts, it is clear that this has been mixed across the country. We know that there are dedicated AWI courts in Edinburgh and they have the highest use of safeguarders in the country. Some local authority services are better than others but it is frustrating that there is a waiting list and that we don’t currently have the resource to deal with it.

Mental Welfare Commission:

They echo SWS comments. The MHO’s workforce has been a long standing issue. This is not all about training; it is about the demographics of the workforce, models of delivery and recognition of this key specialist social work role. 

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

Do we have to redesign the MHO roles, or have other roles? It is important to think of the knock on effects of solving the immediate crisis.

Proposals for speeding up of AWI delayed discharges by Chief Officers:

The Chair introduced the final agenda point for discussion. There has been concern about AWI delayed discharge cases and this has been discussed with the Cabinet Secretary. It is essential that when any moves take place that people’s rights are protected. Input was then sought from Peter Quigley who attends the SBAR meeting 

Scottish Government:

There is an ongoing issue of freeing up capacity for those delayed in hospital but at the same time individual rights have to be protected if any move does take place. In a lot of cases you would need a guardianship order but we already know the issues currently on delay in obtaining that. The SBAR group are looking at making a number of marginal gains that can make the system more efficient as a whole. Caroline Sinclair chairs the meeting and she is content for Peter to share the actions  with this group. If anyone from this group wishes to take forward anything then they are welcome to do so. The group will be regularly reporting back to the Cabinet Secretary.

Mental Welfare Commission:

In terms of the delayed discharge of AWI we know that there are social care and social work pressures on this. Some families have reported that they feel they need a guardianship order in order to be included in future care discussions etc for their relatives – even when s13za would be appropriate. The number of private guardianships continue to grow. 

A lot of the private applications have been growing .With support some people could be granted a POA. The importance of not having people making multiple moves particularly those with dementia was emphasised

Social Work Scotland:

Even with an interim order, if there is already a care place identified, sometimes the families won’t agree. If that is the case then there is not much headway on this and this can be a complex issue.

Law Society of Scotland:

Adrian Ward is not convinced that people have the adequate support to produce a power of attorney. If there was an attorney in place then there would not be a problem. Provided that OPG had registered the power of attorney by the time that a need to make a decision about transfer from hospital arose, an attorney with relevant welfare powers would be able to make an instant decision. A concern arises about the current cost of registering powers of attorney.

Quite apart from the human rights importance of having as many powers of attorney in place as possible, research  following upon the “mypowerofattorney” campaign has shown that on a comparator of costs of granting a power of attorney and costs saved through reductions in delayed discharge, there would be overall benefit to the public purse if the cost of registering powers of attorney were to be reduced to zero.  That calculation does not take account of the considerable total costs to the public purse likely to be saved where the existence of a power of attorney renders a guardianship application unnecessary.  It would be helpful for this to be borne in mind by SCTS.  

The threshold of capacity to grant a power of attorney is relatively low, particularly if the granter is given adequate support and if (where appropriate) a simply-worded document is drafted. A person may competently appoint an attorney even although they do not have the capability themselves to do everything that the attorney is authorised to do: the document can be valid if they understand the need to have such matters decided; if they understand that they may or may not choose to grant a power of attorney, and if so may select the person to act as attorney; and if they are clear about whom they wish to appoint (and make that choice without undue influence or other vitiating factors).

Similar considerations apply to the grave shortage of MHOS.  Quite apart from all the other disadvantages of under-provision, similar costs to the public purse because of delays beyond the statutory 21-day maximum in providing MHO reports would be likely to outweigh the costs of ensuring the recruitment, training, adequate reward and retention of a sufficient workforce of practising MHOs.  As a short-term assistance in the current situation, it might be possible to contemplate transferring back to MHO duties, qualified MHOs who through promotion or otherwise are no longer fully utilising their qualifications as such.  

As regards processing of applications through the courts, there are still considerable variations among different sheriff courts.  

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

Two streams – is a guardianship necessary and is there a way of speeding up guardianships? S.13za can be used but there is some mileage in clarifying  what s.13ZA means in a  human rights compliant way. There has to be consideration that cases are taken charge of and there are no delays caused by solicitors or legal aid. Additionally there would need to be co-ordination and support. We cannot fix this without the courts and the courts need to be able to treat AWI cases with priority. 

Scottish Government:

This was one of the actions taken forward by the SBAR and SCTS had indicated that their position was once the case arrives at court there is nothing they can do to quicken the process.

Mental Welfare Commission:

They issued a position statement on S13za in October of last year. It was clear that the easements on this provision in emergency legislation were not brought in.

Royal College of Psychiatrists:

There is no wriggle room on s.13ZA – it probably isn’t HR complaint. Once a person is incapable of deciding on a move, then capacity is not all or nothing hence someone who lacks capacity in some areas may be still be able to instruct a power of attorney . However, can a POA authorise a deprivation of liberty? There is only one pool of MHOs. The statutory basis of the MH Act makes it a priority and therefore MHO’s do this first. AWI does not have that priority statutory timeframe. This aspect has to be considered when considering the funding provision of MHO’s.


The Chair thanked everyone for their attendance and the group would meet again in the usual timescale. If there were any pressing and urgent issues that needed to be addressed by the group an earlier meeting could be convened. 

No action points for next meeting

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