In June, in response to Coronavirus (Covid-19), the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020 (CVA), passed by Parliament on 25 March 2020.

The Coronavirus Act includes changes to health and care legislation in Scotland, to which Scottish Ministers gave their consent. The Scottish Parliament also passed the Coronavirus (Scotland) Act on 6 April 2020 which introduced a range of further powers. They are often referred to as Emergency Powers.

 

What are Social Care Emergency Powers?

Emergency Powers are powers granted to public authorities to meet emergency needs. The Scottish Government described the switching on of the Coronavirus Act powers as necessary to help protect the public, maintain essential public services and support the economy.

In social care in Scotland, the powers within the Coronavirus Act include a relaxation of assessment duties, aftercare duties, duties to involve the individual in decisions about their care and responsibility to prepare carer support plans and statements.

The Coronavirus Act is time-limited for two years and will be subject to six monthly reviews (although the robustness of this review process has raised concerns). 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). These powers remain switched on as of 21 August 2020. You can read about the powers in more detail here.

BIHR's Work on the Use of Social Care Emergency Powers

After the Coronavirus Act (2020) and the Coronavirus (Scotland) Act became law, the Scottish Government made a commitment that they would report to Scottish Parliament every two months on the use of Emergency Powers. The idea behind this is that Parliament has an oversight of how the powers are being used and the government is held to account by the Parliament.

The first report to the Scottish Parliament was published on 9 June 2020. When this was published BIHR and partner organsations wrote to the Scottish Parliament raising our concerns that the first report, instead of offering much needed clarity and democratic oversight actually raised further human rights concerns.

Read the full letter here

Find our  BIHR briefing on the First Progress Report on the use of Emergency powers here

On 11 August 2020, the Scottish Government published Coronavirus Acts: second report to Scottish Parliament.

We welcomed that the Scottish Government has listened to the to the concerns that we (and our partners) raised, drawn from our work with people and groups in Scotland and are taking action based on this. Some changes were put in place by the Scottish Government that are a step in the right direction in terms of protecting people’s human rights.

Yet, it remains the case that we are concerned to see that the powers remain switched on. The second progress report states that, “It is therefore appropriate at this time to maintain the flexibility for Local Authorities to use these powers in limited circumstances where it is essential that they  do so in order to provide urgent care without delay. This will be subject to further monitoring and review.”

We know from our evidence gathering that these powers which exist to ensure urgent care is provided are having unintended consequences for people and their families across Scotland.

People accessing (or trying to access) care and support in Scotland who responded to our evidence call identified experiencing or being aware of a number of rights issues during Covid-19. You can read a right by right break down of these issues here.

A concern for many who access or are trying to access health and carer services is that the removal or relaxation of duties becomes the new normal.

Read our full response to the Second Progress Report including our Call to Action here.