BIHR Explainer- Coronavirus Law & Policy: Changes to Social Care Legislation (Scotland) Download this Explainer as a pdf here. In response to Covid-19, the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020 (CVA). The Coronavirus Act includes changes to health and care legislation in Scotland as well as England, Wales and Northern Ireland. Scottish Ministers gave their consent to these changes. The Scottish Government has the power to switch these changes on (and off again) when they consider it necessary and appropriate to do so (based on the situation in Scotland). The Coronavirus Act is time-limited for two years and will be subject to six monthly reviews. What Scottish social care laws have been changed by the Coronavirus Act? Sections 16 and 17 of the Coronavirus Act contain changes to the following legislation used in social care practice in Scotland. The Social Work (Scotland) Act 1968 The Children (Scotland) Act 1995 The Social Care (Self-directed Support) (Scotland) Act 2013 The Carers (Scotland) Act 2016 The Mental Health (Care & Treatment) (Scotland) Act 2003 The Criminal Procedure (Scotland) Act 1995 The Adults with Incapacity (Scotland) Act 2000 Who decides when changes are switched on in Scotland? It is up to Scottish Ministers to decide when (if at all) the changes set out in the Coronavirus Act should come into force in Scotland. Scottish Ministers have made it clear throughout the passage of the Coronavirus Act that decisions to activate the changes will be taken based on the situation in Scotland. The Scottish Government have said that, if measures are commenced it will be clearly communicated to all those affected. You can read the guidance from the Scottish Government on changes to Social Care here. What changes have been made and which are in force now in Scotland? The following changes were commenced by Scottish Regulations on 5th April 2020 Changes to The Social Work (Scotland) Act 1968 The CVA makes changes to the Social Work (Scotland) Act 1968. The following duties on LAs can be suspended: The duty to conduct a needs assessment for relevant persons (s.12A). This includes adults who may lack capacity (if not previously been assessed as such). It also includes people with a “mental disorder” not in hospital under sections 25-27 of the Mental Health (Care and Treatment) (Scotland) Act. Changes to the Children (Scotland) Act 1995 The CVA makes changes to the Children (Scotland) Act 1995. The following duties on LAs can be suspended: The duty to conduct assessments to safeguard and promote children’s welfare (section 23). The duty to provide aftercare (advice, guidance and assistance) to young people (section 29(1) and (2)) for example young people who were formerly looked after. Changes to the Social Care (Self-directed Support) (Scotland) Act 2013 The CVA makes changes Section 1 of the Social Care (Self-directed Support) (Scotland) Act 2013. The following duties on LAs can be suspended: The duty to involve the person as much as they want to be in assessment and provision of care. The duty to provide assistance to enable involvement and informed choice in assessment and provision of care. The duty to collaborate with a person in relation to assessment and provision of care. Changes to the Carers (Scotland) Act 2016 The CVA makes changes to the Carers (Scotland) Act. The following duties on LAs can be suspended: The duty to prepare Adult Care and Support Plans (Section 6) The duty to prepare young carer statements (Section 12) The duty to provide support to carers will remain while Sec 16 is in force. (Section 24). There is recognition that, “some form of analysis of a carer’s situation will still need to happen so that the most effective response can be delivered.” The following changes were commenced by the Coronavirus Scotland Act on 6th April 2020 Changes to the Criminal Procedure (Scotland) Act 1995 The Coronavirus (Scotland) Act 2020 (CVSA) makes changes to Section 58A of the Criminal Procedure (Scotland) Act 1995. 11(2) of the CVSA has the effect of ‘stopping the clock’ on the duration guardianship orders, which are time limited. Whilst the ‘clock is stopped’ the guardianship order will continue to have effect. Changes to Adults with Incapacity (Scotland) Act 2000 The Coronavirus (Scotland) Act 2020 makes changes to the Adults with Incapacity (Scotland) Act 2000: Stops the clock on the specified time periods on certificates to authorise medical treatment for incapacitated adults (section 47) Stops the clock on guardianship orders from expiring and requiring renewal (section 58) Stops the clock on renewals of guardianship orders, as above (section 60) The following change is one of the few in the Coronavirus (Scotland) Act which will come into force when and if Ministers approve its use by invoking regulations. Changes to s13Za of the Social Work Scotland Act 1968 The duty to take into account past and present wishes of the person or others involved in their lives when making decisions about community care. This could include decisions to move someone into residential care (s13Za). The LA could take the above steps even if there is a guardian/poa/ intervenor appointed or application in progress. (s13Za). What does this mean for human rights in Scotland? The changes to the legislation set out in the Coronavirus Act and the Coronavirus (Scotland) Act could have a potential impact on our fundamental human rights. It is crucial that any changes made to assessment process or the provision of care and support in Scotland are applied compatibly with human rights law. Scotland through the UK ratification process are signed up to various United Nations and Council of Europe Human Rights Treaties. The European Convention on Human Rights (1950) and the Human Rights Act (1998) ensure that the public bodies must respect, protect and fulfil individual’s human rights even (or especially!) during crisis like Covid-19. Additionally, the Scotland Act (1998) ensures that Scottish Ministers cannot pass a law or do anything which is incompatible with human rights. Human rights law in Scotland have not been relaxed or changed in any way and should be used as a framework for decision making. Which human rights are involved? The changes set out above if enforced without proper human rights knowledge and training could have an alarming impact on various rights set out in the Human Rights Act. We must think about these changes on an individual by individual basis. What could any of these changes look like for a child or adult already in a vulnerable situation. Some human rights which come to mind immediately are detailed below. The right to respect for private and family life and home and correspondence (Article 8 of the HRA) This right cover autonomy, the right to make our own decisions about our body and life. The changes to Section 1 of the Social Care (Self-directed Support) (Scotland) Act if switched on would mean that the LA no longer needs to support a person to be involved in decisions about their care. If a person is not supported to make an informed choice about their care, then their right to autonomy is risked. This is also at risk through the changes to the Social Work (Scotland) Act. If these are switched on it would mean that a LA no longer needs to consider past and present wishes of the person or others involved in their lives when making decisions about community care. A person could be moved into a residential care facility without being involved in the decision. This is a non-absolute human right and can therefore only be restricted if the restriction is lawful, legitimate and proportionate. The right not to be tortured or treated in an inhuman or degrading way (Article 3 of the HRA) If the changes to the Children (Scotland) Act 1995 or the Social Work (Scotland) Act are switched on and a person or child in need of a care assessment could be refused this. This could lead to a situation where there is a risk of not protecting someone from inhuman or degrading treatment. Imagine a situation where someone is unable to get out of bed without support, or unable to wash, dress or use the bathroom. Or a situation where a child is at risk of harm, but no assessment takes place. This is an absolute human right and can therefore never be lawfully restricted. The right to be free from discrimination (Article 14 of the HRA) All of the changes described above if applied as blanket policies could have a disproportionate impact on people in Scotland who have a physical or a learning disability, a capacity or mental health issue, are older or any other factor. Indirect or direct discrimination is not lawful. What happens now? The Scottish Government have said that it will clearly communicate to all those affected when measures are switched on and off. We will keep an eye on this and provide updates and briefings as time passes. Where can I find more information? BIHR information: Our joint letter to MSP’s calling on rights not to be an afterthought BIHR’s Coronavirus and Human Rights Hub Local information: Scottish Government Guidance on Social Care The Alliance- Information and links to support in your area PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.