Centre for Mental Health and Capacity Law: Comment on Coronavirus Bill 2020
Comment on Coronavirus Bill 2020
These are unprecedented times and there is a need to manage and prevent the spread of COVID-19 amongst persons within the UK. Health and social care services and the courts and Mental Health Tribunal for Scotland, along with other public, private and voluntary bodies, will all be under extreme pressure and require support. That said, the discretionary powers and provisions conferred by the Coronavirus Bill (the Bill) have significant implications for the rights and safeguards of persons with mental disorder (including persons with mental illness, personality disorder and learning disability) and persons who may have capacity issues.
This comment focuses on the provisions of the Bill as it currently stands relating to the Mental Health (Care and Treatment) (Scotland) Act 2003 (the MHA), Criminal Procedure (Scotland) Act 1995 (CPA) and also potentially indirectly to the Adults with Incapacity (Scotland) Act 2000 (AWIA). It considers the legal, human rights and practical implications of these changes and highlights areas of concern which need to be addressed in implementation and any secondary legislation and guidance in Scotland.
The need to adhere to MHA, CPA and AWIA and human rights principles
It is of paramount importance to recognise that, as stated by the UK Secretary of State for Health and Social Care in the House of Commons during the passage of the Coronavirus Bill 2020 through the UK Parliament, the changes introduced by the Bill are discretionary emergency powers. They must therefore only be resorted to in genuine last resort circumstances.
Whenever the Bill’s powers are exercised the potential exists to significantly impact on the rights and safeguards of persons with mental disorder and persons who may have capacity issues, particularly in terms of their right to liberty, autonomy and ability to access appropriate and vital support, care and treatment. It is therefore imperative that (a) the usual provisions and principles of the MHA, CPA and AWIA must be applied wherever possible given that they afford greater rights protection and safeguards; and that (b) there is strict adherence to international human rights standards.
Moreover, in cases where the Bill’s powers are applied it must be remembered that they are amending those in the MHA, CPA and AWIA. The principles that underpin the operation of these three Acts must continue to be applied and the rights of persons subject to the Acts must be respected on the same basis as other persons. Use of the Bill’s powers must not direct or indirectly result in disproportionate and discriminatory denial of human rights.
Human rights imperatives
European Convention on Human Rights
The legislative principles that underpin the operation of both the MHA and the AWIA reflect and embody European Convention on Human Rights (ECHR) rights. ECHR rights must be given effect by public authorities and can be enforced through our courts and tribunals, and legislation must be interpreted in accordance with the ECHR. In Scotland, devolved legislation and ministerial actions can be declared invalid and unenforceable if found to be non-compliant with the ECHR.
Even where the Bill’s powers are used regard for the existing provisions of the MHA, CPA and AWIA must therefore continue to be implemented in such a way that respects ECHR rights, in particular, those identified in Articles 2 (life), 3 (freedom from torture, inhuman or degrading treatment), 5 (liberty), 6 (fair trial) and 8 (respect for private and family life).
Importantly, there is an onus on the Scottish Government, professionals and service providers to exercise proportionality in any limitation of these rights and consider all the options to enhance enjoyment of, and cause minimum disruption to, these rights. They must be secured without discrimination. Whilst Article 15 ECHR recognises that a state may take measures derogating from Articles 5, 6 and 8 it must be noted that this must only be ‘…to the extent strictly required by the exigencies of the situation…’. No ECHR rights must therefore be limited to such an extent that an individual with mental disorder or capacity issues is given fewer legal and procedural safeguards or a lower standard, of support, care and treatment than others. These standards apply equally to the Bill’s provisions increasing local authority discretion over assessment of need for community care services.
Another consideration is that whilst of course the right to life is particularly important – including the state’s positive obligation to protect life and to take appropriate operational measures in order to achieve this – in the current situation this needs to be carefully and proportionately balanced with respect for other rights. Protecting the right to life cannot of itself justify overriding the need to provide a legal basis for limiting the rights to liberty and respect for private and family life (autonomy).
Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities (CRPD) further strongly emphasises the imperative to ensure that, even in times of emergency, persons with mental disorder and capacity issues are actively supported to enjoy the full range of civil, political, economic, social and cultural rights on an equal basis with others and without discrimination and that access to support for the exercise of legal capacity, reasonable accommodation and universal design must be provided to achieve this. Important rights here include the right to life (Article 10), equal recognition before the law (Article 12), access to justice (Article 13), liberty (article 14), freedom from torture (Article 15), freedom from exploitation, violence and abuse (Article 16), personal integrity (Article 17), living independently and being included in the community (Article 19), respect for privacy, home and the family (Articles 22 and 23) and health (Article 25). Indeed, the Committee on the Rights of Persons with Disabilities has on numerous occasions reiterated that disability must not be a barrier to equal rights enjoyment.
Whilst the CRPD does not currently carry the same legal weight in that its rights cannot be enforced through our courts and tribunals they nevertheless carry considerable weight and influence in Scotland. Proposed ministerial actions can be prevented by the UK Government where they fail to comply with the UK’s international obligations including those relating to the CRPD. Moreover, the Scottish Government has given a commitment to give effect to CRPD rights in A Fairer Scotland for Disabled People: delivery plan (2016), the CRPD informs Scotland’s Mental Health Strategy 2017-2027 and review of the AWIA and, in announcing the current and ongoing independent Scottish Mental Health Law Review, the Minister for Mental Health specifically mentioned achieving CRPD compliance as an objective of such review.
United Nations and European Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Additionally, for persons with mental disorder and capacity issues who are subject to deprivation of liberty the United Nations and European Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must also be adhered to.
Coronavirus Bill: significant restrictions of the rights of persons with mental disorder and capacity issues
Mental Health (Care and Treatment) (Scotland) Act 2003
The proposed amendments to the MHA will have serious implications for the liberty and autonomy of persons with mental disorder. They include extension of periods of time for Emergency Detention and Nurse’s Holding Power and open-ended timescales for transferring prisoners to hospital. They also allow for Approved Medical Practitioners to authorise and extend Short Term Detention Certificates without the requirement to consult with or obtain the consent of a Mental Health Officer and for Mental Health Officers to apply for Compulsory Treatment Orders (CTOs) with the support of only one Approved Medical Practitioner report. Long term medication may also be non-consensually administered before the second opinion certification from a Designated Medical Practitioner (DMP) has been received (but only if the DMP has not refused the certification). Moreover, it is possible to suspend the requirement that Responsible Medical Officers review CTOs, Compulsion Orders, Compulsion and Restriction Orders (COROs) and Hospital Directions (HDs) and Transfer for Treatment Directions (TTDs) and that the Mental Health Tribunal for Scotland (MHTS) reviews COROS and HDs and TTDs. This would allow for the continued detention and restriction of patients in the absence of an examination for possibly extended periods of time. It is also unclear as to how this will actually work in practice and this needs to addressed.
In relation to the MHTS panels may be reduced and held remotely using audio and video technology. It is vital that patients are properly supported at MHTS hearings through having real and effective access to legal representation, their Named Person and independent advocacy.
Criminal Procedure (Scotland) Act 1995
Similarly, the Bill also allows for changes to the CPA for a significantly extended period for assessment order extensions, reduced authorisation requirements for Treatment Orders and Compulsion Orders, HDs and detention for medical examination. It also allows for an open-ended period for admitting a person subject to Compulsion Orders and HDs.
Adults with Incapacity (Scotland) Act 2000
Whilst the Bill does not specifically refer to the AWIA we recognise that in the current crisis, in order to manage the risk to all residents, it may be proportionate to place greater restrictions on people in care homes than would ordinarily be the case in such settings and also that people may need to be accommodated in or moved to situations that amount to a deprivation of liberty and other restrictions of autonomy.
It is, however, essential that (a) such restrictions are only made when genuinely necessary; (b) there is a clear legal basis for this which is applied fairly to residents subject to the AWIA in equitable way compared with other residents and vulnerable persons in other settings; and (c) care home staff are clear about how this should be applied. Whilst these requirements should ultimately and swiftly be covered by regulations – we would suggest under what is currently Schedule 19 (Health protection regulations: Scotland) of the Bill – there may also be a need to implement some of these prior to this.
Review and monitoring of the Coronavirus Bill
As with any emergency legislation it is essential to keep the Bill under regular review. To this end we are pleased to note that the Bill’s powers will be subject to six monthly reviews by the UK Parliament.
In order to ensure that the existing legislative principles and human rights requirements are followed we also strongly recommend that implementation of the Bill (insofar as it relates to the MHA, CPA and AWIA) must be must be closely and independently monitored. We would suggest that this role will be best performed by the Mental Welfare Commission for Scotland and that adequate resourcing is provided for this purpose.
Professor Jill Stavert
Professor Colin McKay
Dr Paul Hutton
on behalf of the Centre for Mental Health and Capacity Law, School of Health and Social Care, Edinburgh Napier University
24th March 2020
Note: whilst some members of the Centre for Mental Health and Capacity Law are also members of the ongoing Scottish Mental Health Law Review Executive Team, the views expressed in this Comment are not to be taken as necessarily representing those of the Executive Team or other members of it.
 As defined in section 328 Mental Health (Care and Treatment) (Scotland) Act 2003.
 Section 6 Human Rights Act 1998.
 Section 2 Human Rights Act 1998.
 Section 3 Human Rights Act 1998.
 Sections 29(2)(d) and 57(2) Scotland Act 1998.
 See, for example, the Committee’s General Comments Nos 1 (2014), 5 (2017) and 6 (2018) and it’s Guidelines on Article 14 (2015).
 Section 58(1) Scotland Act 1998.