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

Minutes from the sixth meeting of the group, held on 24 March 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
  • Diane Strachan (Chair) – Scottish Government Mental Health Division
  • Division
  • Peter Quigley – Scottish Government AWI policy
  • Sarah Saddiq – Scottish Government AWI policy


Allister Wilson – Scottish Courts and Tribunals Service

Items and actions

Agreement of notes from 5th meeting

The Chair welcomed attendees to the 6th meeting and noted apologies. The 5th meeting notes had been agreed prior to the meeting and published.

The Chair provided an up to date picture on the COVID situation with the transmission rates falling and the successful roll out of the vaccination , the situation was looking more optimistic. It was also highlighted that we were now in a pre-election period .The implications of this were that it would be more difficult to re-instate the emergency legislation.

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

Royal College of Psychiatrists

There has been no contact from any areas to indicate that there are any problems. The numbers are significantly decreasing of new patients in ICU and there has been a fall in deaths. This is a good situation to be in as the pressure that was there is abating. Most of the healthcare staff have received their second vaccines there is therefore less risk to staff numbers due to staff sickness.

Mental Welfare Commission

There is no intelligence to suggest that emergency legislation is required. There have been applications of renewals and recalls. MWC are aware that the mental health officers have been working from home and in the office. There is nothing to suggest that MWC need to change their view from last time

Law Society of Scotland

There has been no change from the last meeting. There have been more concerns about deprivations of liberty occurring at the start of the pandemic. Most of this is down the line where Roger is not needed and it is counter-productive as it shifts the human rights balance.

The Centre for Mental Health and Capacity Law

There is nothing to add to what has been said already. The information suggests that there is no need to bring in legislation again.

Social Work Scotland

There has been no change and it is pleasing to see big reduction in the number of people. . The blockages of AWI delays is not an easy fix and there are multiple reasons for many of these not simply down to MHO’s. Most of MHO’s have had their second vaccination and that is really encouraging.

The volume of AWI activity has been intense and with a lot of the applications don’t require welfare powers. The challenge is one to educate solicitors that not every person needs welfare powers and many applications are solely for access to money held in bank accounts or to deal with property, if this could be separated out with more thought this would reduce pressure on MHO’s for reports. For some local authorities that have been operating in COVID response mode, they have seen no changes. The progress out of lockdown and what level restrictions will remain in the locality will identify what services will re-open.

At this stage there is no need for emergency measures .

SWS need to see the data comparison and last month it is holding its own. SLAB work is coming through fast and the picture in the courts is currently mixed. It is hard to say that it is consistent. There is a significant lack of understanding about what we can influence. The Sheriff’s are independent. The AWI demand is unrelenting and we pushed the dates down the line when we introduced the stop the clock provisions for guardianships. There will be an increase in renewals later on and this doesn’t help with the resources being stretched. Trying to get medical reports is challenging for psychiatrists and in the main G.Ps are not engaging with AWI work.

Scottish Government

The Chair highlighted that the UK colleagues are reviewing the COVID legislation to see if they are likely to retain the measures. This will also be considered by Scottish Ministers on what parts of the legislation will be retained. We are hoping that we don’t need to bring these back again.

Royal College of Psychiatrists

There have always been delays in Guardianship applications in both community and hospital settings and the COVID pandemic has exacerbated rather than caused these. These delays have multiple causes. From the medical point of view one cause is the lack of availability of AMPs to review community patients. In hospital settings the delays can be associated with patients being ‘trapped’ in inappropriate settings.

Law Society of Scotland

Adrian Ward corroborated what Bob Leslie is saying . The legal practitioners have identified that the stop the clock created a backlog of renewals which have expired. If Coronavirus disappeared then we are still trying to catch up. There is a mixed picture across the country . The solicitors who don’t normally do AWI are finding it difficult .

Office of the Public Guardian

The general feeling is that there is an improving picture of stability. The Office of the Public Guardian are in a good rhythm and it has been business as usual. They are doing more now digitally. They still have a backlog but they are now dealing with processing August power of attorneys. They have no bottlenecks in the system for receiving guardianship orders or interlocutors.

Scottish Government

The Chair summed up that there was unanimity in not needing to bring in the emergency provisions and concluded that stakeholders are content with the current position

Discussion about possible AWI Bill

Scottish Government

There is a possibility of a small Bill going ahead on the basis that it is non-contentious and we have a space in the provisional legislative programme for Year 1. This depends on many caveats which will include possibility of further Covid legislation and new government forming and approving the go ahead of this Bill. The timing is likely to be for entry into Parliament for January 2022 . This should be legislation in time for the Scott review reporting its recommendations in Oct 2022.

We are putting together a discussion paper to consult with stakeholders before any public consultation takes place.

Social Work Scotland

This will be encouraging for Chief Officers group who breathe a sigh of relief. This isn’t replacing S13ZA and there will need to be some measures made around that .

Royal College of Psychiatrists

There will be questions about the workability and practicality of the proposals as well as the question as to whether they address the legal questions around deprivation of liberty.

Law Society of Scotland

There is a clear elephant in the room when it comes to lack of deprivation of liberty regime under Article 5. Adrian would not prefer to wait for the Scott Review reporting. Much more is dealt with under the English and Welsh deprivation of liberty regime. The short term placement order has to be ECHR compliant. Something is better than nothing.

Scottish Government

The Chair stated that the Bill was going to be targeted and this discrete bill is not intended to cut across the Scott Review. There was no point in implementing a wider deprivation of liberty scheme when the recommendations on this will come out in the wider Scottish Review of Mental Health Law.

Office of the Public Guardian

There is an OPG list and there are some requirements in that. This is a relatively uncontentious list. A lot of the proposed wishlist have arisen from working with the Act for many years and the last amendment to the Act was in 2007.

Next meeting to discuss the discussion paper around the proposals for the short term order.

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