Download a PDF of the Explainer here

The Coronavirus (Scotland) Act came into force on 6 April 2020 and made temporary changes to health and social care legislation across the UK.

This explainer will look at the temporary changes made to mental capacity law in Scotland by:

We will look at the temporary changes to:

 

The Scottish Government has produced Guidance on the changes made to the law in Scotland about adults with incapacity during Covid-19.

We at BIHR have also written a handy Explainer on the changes to mental health law in Scotland during Covid-19. This looks at Mental Health (Care and Treatment) (Scotland) Act 2003, which puts a duty on local councils to provide care and support services to people with mental disorders. You can find our Explainer here.

 

What is the Adults with Incapacity (Scotland) Act?

The Adults with Incapacity (Scotland) Act 2000 created a framework for safeguarding the welfare and managing the finances and property of adults who lack capacity to make some or all decisions for themselves.

The Act defines adults with incapacity as people aged 16 or over who lack capacity to take some or all decisions for themselves because of a mental disorder or an inability to communicate.

Section 1 of the Act contains 5 Principles which should be followed when any decisions are made on behalf of an adult with incapacity. The Scottish Government have made a really helpful factsheet about these Principles. Here are the key things to know.

These are

  1. Benefit: any action or decision made for someone with incapacity must benefit that person. That action or decision should only be made if the benefit couldn’t happen without it.

  2. Least restrictive option: any action or decision made for someone with incapacity should be the option that restricts that person’s freedom as little as possible. 
  1. Take account of the wishes of the adult: when deciding if a decision should be made on behalf of someone without capacity, and what that decision should be, the wishes and feelings of that person must be taken into account. These include present wishes and wishes expressed in the past. The person should be given help to communicate their views and wishes.

  2. Consultation with relevant others: when deciding if a decision should be made on behalf of someone without capacity, and what that decision should be, the views of people close to that person should be taken into account, where possible.
    These people include:
  • the person’s nearest relative of the adult
  • the person’s primary their named person
  • any guardian or attorney with powers relating to the proposed decision
  • any person whom the Sheriff has said should be consulted
     
  1. Encouraging the adult: the person with incapacity should be encouraged to use whatever skills they have to do with property, finances or personal welfare and encouraged to develop new such skills.

 

For more information on the Adults with Incapacity (Scotland) Act, the Scottish Government have made a handy short guide to the Act. You can find it here.

 

What are the changes to mental capacity law in Scotland during Covid-19?

Changes to the Adults with Incapacity (Scotland) Act

Schedule 3, section 11 of the Coronavirus (Scotland) Act makes some temporary changes to the Adults with Incapacity (Scotland) Act. These changes started on the 7th April 2020, and they are:

  • Section 47 of the Adults with Incapacity (Scotland) Act allows a health professional, such as a doctor, to issue a certificate to someone with incapacity for medical treatment for a certain length of time.

    During Covid-19 and while the Coronavirus (Scotland) Act is law, this certificate will not end. This is to make sure medical treatment can continue to be given to a vulnerable adult where this is required.

    However, this does also raise concerns for people who would like their treatment reviewed rather than continued. We couldn’t find any information on safeguards for people who would like their medical treatment reviewed.
     
  • Section 58 of the Adults with Incapacity (Scotland) Act says that guardianship orders made by the Sheriff are valid for 3 years or another length of time decided by the court.

    Guardianship orders give someone the power to make decisions and act on behalf of a person with incapacity, in order to safeguard their interests. The powers may relate to the person with incapacity's money, property, personal welfare and health.

    During Covid-19 and while the Coronavirus (Scotland) Act is law, guardianship orders will not run out or need to be renewed. The changes basically pause time left of the guardianship order and the guardian is still able to use their powers. This means that when the Coronavirus (Scotland) Act stops being law, whatever time was left on the guardianship order before 7th April will return.

  • Section 60 of the Adults with Incapacity (Scotland) Act is about renewing a guardianship order. To renew a guardianship order, an application must be made to the Sheriff. The Sheriff can renew a guardianship order for 5 years or another length of time decided by the court.

    During Covid-19 and while the Coronavirus (Scotland) Act is law, guardianship orders will not run out or need to be renewed. Like with the guardianship orders themselves, the changes basically pause time left of the guardianship order renewal, and the guardian is still able to use their powers. This means that when the Coronavirus (Scotland) Act stops being law, whatever time was left on the guardianship order renewal before 7th April will return.

    These changes to guardianship orders may create concern in situations where someone has regained capacity and is now able to make more decisions on their own but there is no way to have the guardianship order reviewed. The power to make those decisions would stay with the guardian.

 

Changes the Social Work (Scotland) Act 1968

Schedule 3, section 11 of the Coronavirus (Scotland) Act also makes some temporary changes to the Social Work (Scotland) Act. These changes are not yet in force – Scottish Ministers can decide to “switch on” these changes, but only where there is evidence showing they are really necessary.

The Social Work (Scotland) Act puts a duty on local authorities to assess a person's community care needs and decide whether to arrange any health or care services.

Section 13ZA of this Act allows local authorities to move someone with incapacity from a hospital or another care setting into community care setting, such as a care home. Usually, any decision to do this must follow the Principles of the Adults with Incapacity (Scotland) Act, which are listed earlier in this Explainer. Also, if there is a guardianship order in place and a person with incapacity has a guardian or power of attorney, the local authority cannot move that person to a community care setting.

The Coronavirus (Scotland) Act relaxes this duty. It takes away the duty on local authorities to follow the Principles of taking into account the wishes of the person with incapacity and relevant interested people. This means that a local authority can move someone with incapacity from a hospital to a community care setting without considering the wishes of that person or anyone close to them, such as their closest relative or their guardian.

The changes also mean that a local authority can move a person with incapacity even if that person has a guardian or power of attorney.

 

Changes to the Criminal Procedure (Scotland) Act 1995

Schedule 3, section 11 of the Coronavirus (Scotland) Act also makes some temporary changes to the Criminal Procedure (Scotland) Act. These changes started on the 7th April 2020.

The Criminal Procedure (Scotland) Act is about what happens when someone is thought to have committed a crime and is going through the court systems in Scotland. If a person is found guilty of a crime by the high court or sheriff court, the court can place the person under a welfare guardianship order. This order is valid for 3 years or another length of time decided by the court.

During Covid-19 and while the Coronavirus (Scotland) Act is law, welfare guardianship orders will not run out or need to be renewed. The changes basically pause time left of the guardianship order and the guardian is still able to use their powers. This means that when the Coronavirus (Scotland) Act stops being law, whatever time was left on the guardianship order before 7th April will return.

 

What does this mean for people?

The changes to the Adults with Incapacity (Scotland) Act basically mean that if someone with incapacity is receiving medical treatment or has a guardian, both these things will continue during Covid-19 and don’t need to be renewed. This could raise human rights concerns where a person’s capacity changes. Maybe they are now able to make a greater range of decisions themselves about their care, finances or property, but a guardianship order gives their guardian or power of attorney the power to make those decisions.

The changes the Social Work (Scotland) Act 1968 are the most worrying. Although these changes have not been switched on by Scottish Ministers yet, they could be soon. They mean that a person with incapacity could be moved from hospital to a different place of community care without their wishes being asked or thought about, or the wishes of the people closest to them. This means people could be moved to (for example) a care home even if they and the people closest to them do not want that to happen.

The Mental Welfare Commission for Scotland has been in discussion with the Scottish Government about the changes to the Social Work (Scotland) Act. In their Advice Notes for Practitioners, they said the Scottish Government has been clear that the emergency changes will be used in exceptional circumstances only, and when all other options have been tried.

The Mental Welfare Commission will be involved in the reporting process whenever the changes to the Social Work (Scotland) Act are used and someone with incapacity is moved from a hospital to another community setting without their wishes being asked or thought about, or the wishes of the people closest to them. This is to provide an extra safeguard and the Commission will be able to keep track on how the changes are being used.

 

Which human rights are involved?

Human rights should be at the centre of decisions about people with incapacity.

The Human Rights Act places a legal duty on public bodies in Scotland to respect, protect and fulfil human rights across their actions, decisions, policies and services. The Human Rights Act is a foundational law. This means that all other UK laws should be compatible with the HRA, including the Coronavirus (Scotland) Act and the Adults with Incapacity Act.

Important rights which are engaged here include:

The right to liberty (Article 5 of the HRA)

Liberty can only be restricted in certain circumstances, for example in relation to mental health/capacity issues. When liberty can be restricted this must be authorised by a law (such as Mental Health (Care and Treatment) (Scotland) Act 2003).

Any decisions to restrict the liberty of a person with incapacity must follow the Principles of the Adults with Incapacity (Scotland) Act. Although the Principle of taking into account the views of the person with incapacity and the people closest to them may in the future not have to be followed during Covid-19, the other Principles must be. These include making sure the decision is in the best interests of the person with incapacity, and that the decision restricts that person’s freedom as little as possible. Until the changes to the Adults with Incapacity (Scotland) Act are switched on by Scottish Ministers, all the Principles must be followed apply.

The right to respect for private and family life and home and correspondence (Article 8 of the HRA)

This covers people’s right to be involved in decisions about themselves, maintaining relationships with others and protecting well-being.

If a person is deprived of their liberty, their ability to maintain their private and family life is restricted. This right can be restricted in some circumstances, but the process for doing that must be rights respecting, i.e. it must be lawful, for a legitimate reason set out in the right itself, and importantly it should be proportionate.

The right to life (Article 2)

This right includes a positive duty to take reasonable steps to protect a person’s life if it is at known and immediate risk. If Scottish Ministers switch on the changes to the Adults with Incapacity (Scotland) Act, local authorities can move someone from a hospital to another care setting. If this move would put your life at risk, the right to life may be engaged.

This may be particularly relevant during Covid-19, where being moved to another place of care, such as a care home, may involve being moved somewhere where there is evidence that infection and death rates relating to Covid-19 are increased.

The right to non-discrimination (Article 14 of the HRA)

This right must be used with another right in the HRA. At BIHR we call it a 'piggy-back' right.

The right means that people receiving care should not be discriminated against when accessing care and when decisions about their care are made. Relevant questions to think about are: why is the decision being made? Is it objective and reasonable? Or it is based on discriminatory reasons, such as a person’s learning disability, mental health or dementia diagnosis?

What happens now?

Going forward, it is really important to remember that the changes to the Social Work (Scotland) Act are not yet switched on, and any decisions made about a person with incapacity must follow all 5 of the Principles. Your views and the views of those closest should be asked and considered, you should be encouraged to use your skills to do with property, finances or personal welfare and encouraged to develop new skills. Any decisions made on your behalf should be in your best interests and be the option that restricts your freedom the least.

The changes to the Adults with Incapacity (Scotland) Act and the Criminal Procedure (Scotland) Act are already in place and mean that any guardianship orders and medical treatment certificates already in place will not expire and won’t be reviewed during Covid-19.

The rights and duties contained within the Human Rights Act continue to be a foundation law. This means that the Adults with Incapacity (Scotland) Act, the Social Work (Scotland) Act and the Criminal Procedure (Scotland) Act must continue to be applied in ways that are compatible with our rights. This remains the case even during Covid-19 and all the changes to the law that have happened.

Where can I find more information?

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.