Adults with Incapacity Emergency Legislation Commencement Consideration Group: remit

Remit of the Adults with Incapacity Emergency Legislation Commencement Consideration Group.


Chair – Scottish Government Deputy Director, Mental Health

Representatives from:

  • Mental Welfare Commission
  • Royal College of Psychiatrists
  • Scottish Courts and Tribunals Service 
  • Social Work Scotland
  • Law Society of Scotland
  • The Office of the Public Guardian 
  • The Centre for Mental Health and Capacity Law at Edinburgh Napier University
  • Scottish Government policy
  • Scottish Government legal

Remit : 

  • consideration of evidence for continued suspension of temporary amendments to Adults with Incapacity legislation within Coronavirus Act 2020
  • consideration of the human rights issues that arise should emergency AWI provisions be reinstated' or in connection with ordinary AWI provisions as they relate to the crisis'
  • to consider issues around physically distant use of existing legislation, with reference to current and future practice
  • consideration of the continued operation of the Adults with Incapacity (Scotland) Act 2000 during the coronavirus pandemic
  • consideration of issues arising in relation to changes in practice, not necessarily specifically requiring legislative change

The working group is established to provide members with the opportunity to share, from their organisational viewpoints, evidence as to the effective continued operation of the Adults with Incapacity (Scotland) Act 2000 during the coronavirus pandemic.  and whether there appears to be a need for the commencement of temporary measures contained in the Coronavirus (Scotland) Act 2020 in relation to the expiry of guardianship orders and s.47 certificates for medical treatment.

Members will have the opportunity to consider the balance of human rights required when considering reinstatement of these emergency provisions.

It would be helpful for the group to also consider issues that may arise through use of physical distancing measures and how this may impact on the operation of the 2000 Act.

These issues would be more in relation to changes in practice than those specifically requiring legislative change. This provides an opportunity for the group to be sighted on issues that are arising across different parts of the system and consider whether there is a need for additional guidance for practitioners to be developed by members.  This liaison function would help to ensure that organisations are aware of any additional guidance being developed and issued by others so that guidance can be complementary.

Meeting frequency:

The group will meet virtually to consider:

  • the ongoing evidence base for commencement of temporary provisions 
  • any known issues that have arisen on which it may be useful to get members’ views.  

These meetings will be scheduled every 2-3 weeks, in the same manner the  stakeholder meeting to consider provisions in relation to the Mental Health (Care and treatment) Act 2003 is scheduled. The AWI meeting will be on alternate weeks to the Mental Health meeting, as they contain some of the same stakeholders.  

The group could also correspond via email on particularly urgent issues should the need arise.


The Coronavirus (Scotland) Act 2020, set out reporting arrangements for all Scottish specific provisions.  

Officials will therefore use this group to engage with stakeholders in order to gather, analyse and review all available data and evidence. This information will be used to inform and shape future advice to Ministers regarding both commencement and reporting of these temporary provisions.

Existing guidance:

Read the guidance published on the 28 September on suspension and expiry of the emergency provisions affecting adults lacking capacity

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