Mental Welfare Commission response to coronavirus emergency legislation

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

These measures - along with changes to the Mental Health Act that came in with the UK Coronavirus Act (2020) - will have a significant impact on the way in which professionals and services care for and work with people with mental illness, learning disability, dementia and related conditions. 

Dr Arun Chopra, Medical Director, Mental Welfare Commission, said: 

"'We understand the need for this emergency legislation to become available during these exceptional times, but we would want to see the reduction in safeguards to only be used if absolutely necessary, and for as short a time as is possible. 

'We particularly note the significant changes to how Section 13ZA would operate in emergency measures - removing the obligation to consider the past and present wishes of the adult who lacks capacity and significant others, and to enable the local authority to pursue securing community care provision even if a welfare guardian, or a welfare attorney already has the power related to these steps - this might include decisions about moving an adult who lacks capacity to a residential setting. We believe it is vital that effective mechanisms are in place to scrutinise how and when these powers are used.

'Meanwhile, at the Commission, we will ensure that our advice and guidance is attuned to the changing needs of services and patients and relatives. We will also ensure our monitoring role on the Mental Health Act is able to record and report on use of the emergency laws when these are in place across Scotland, and we will publish data on its use in due course.'

Mental Health Act

The Commission has a statutory duty to monitor the Mental Health Act and publish data for the whole of Scotland. This role will be even more critical at this time, when emergency legislation, if required to be used, will have an impact on the safeguards laid down in law.

The Commission will adapt its methods of monitoring data to accommodate the emergency laws and capture their use through the pandemic, including the scrutiny of temporary powers that may come into play due to workforce reduction and that will reduce safeguards for those detained under this Act. 

Adult with Incapacity Act

In relation to the powers outlined in the Bill introduced today, the Commission highlight 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 today 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 asks 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.

Commission advice

Giving professional advice on the use of the law to treat and care for people with mental ill health or incapacity is one of the Commission’s key roles. 

The Commission continues to operate an advice line through phone and email and has also published specific guidance to the sector on our website on emergency measures and wider aspects of mental health care through the pandemic.

mwc.communications@nhs.net