Coronavirus emergency legislation – Mental Welfare Commission role

The Coronavirus (Scotland) Bill debated in the Scottish Parliament yesterday contains measures that affect vulnerable adults who lack capacity and are treated under the Adults with Incapacity Act.

Prior to the debate, the Commission highlighted specific areas of concern about significant changes to how Section 13ZA would operate in emergency measures.

The Commission has since been reassured by the Scottish Government that this emergency provision is intended to  be used in exceptional circumstances only, and when an authority had exhausted all other measures. 

During the debate, Mike Russell, Cabinet Secretary for the Constitution, Europe and External Affairs, also confirmed that whenever this provision is used, the Mental Welfare Commission will be involved in the reporting process. This is a vital additional safeguard, which we very much welcome. It means that the Commission will be able to monitor the use of this emergency provision across Scotland. Depending on the individual situation, we will consider whether we believe the case adheres to the new provision, whether we wish to call for further information, or whether we wish to go out and visit the person concerned at a future date. 

Alison Thomson, Interim Chief Executive, Mental Welfare Commission, said:

“As we stated on 31 March, we understand the exceptional circumstances in which this emergency legislation is introduced. Today’s clarity on the changes to Section 13ZA is very helpful. The Commission will take on this new role in addition to regularly updating our advice on care and treatment during the pandemic, and ensuring our monitoring of the emergency legislation is in place.

“We will work closely with Scottish Government and health and social care organisations throughout."

Note to editors

In relation to the powers outlined in the Bill, which was passed yesterday, the Commission highlighted the ‘easements’ with regards to section 13ZA of the 1968 Social Work Act. 

This section normally allows local authorities to move a person who is lacking capacity from a hospital or other care setting to a residential setting, except if there is a welfare guardian or an attorney who has the power to organise these steps.

The measures suggested in the Bill remove these exceptions and would provide local authorities greater powers with regards to moving people who lack capacity without recourse to a welfare guardian or person with power of attorney. It also removes the duty to apply the principle of taking into account the past and present wishes and feelings of the adult lacking capacity. 

The Commission understands there may be difficult times ahead and a need to ensure capacity within our hospitals and a need to ensure people can move to care homes or other residential settings quickly. However, the Commission had asked that the system includes a formal notification to a scrutiny body each time these ‘easement’ powers are used. It is vital for trust in the health and social care sector to be maintained through this pandemic through appropriate scrutiny of powers, and for the use of this emergency legislation to be fully recorded.

The Scottish Government has now agreed that the Mental Welfare Commission will be key to that scrutiny process.

mwc.communications@nhs.net