Centre for Mental Health and Capacity Law: Comment on the Coronavirus (Scotland) Bill 2020
Centre for Mental Health and Capacity Law
Edinburgh Napier University
Comment on Coronavirus (Scotland) Bill 2020
The UK Coronavirus Act 2020 was enacted on 25th March 2020 and the Scottish Government will introduce related emergency legislation on 1st April 2020, the Coronavirus (Scotland) Bill 2020.
This second comment supplements, and should be read in conjunction with, the Centre’s Comment of 24th March 2020 on the UK Coronavirus Act 2020. It considers some aspects of the UK Coronavirus Act 2020 insofar as it relates to implementation of emergency measures relating to the Mental Health (Care and Treatment) (Scotland) Act 2003 (the MHA) and on the potential impact of measures introduced by the Coronavirus (Scotland) Bill insofar as they relate to persons with mental disorder (including persons with mental illness, personality disorder and learning disability), the Adults with Incapacity (Scotland) Act 2000 (AWIA), the MHA and Social Work (Scotland) Act 1968 (SWA). Once again, it focuses on legal, human rights and practical implications of some of these changes.
As stated in our earlier comment, it is important to appreciate that the changes introduced by both the UK Coronavirus Act and the Coronavirus (Scotland) Bill are discretionary emergency powers and must therefore only be resorted to in genuine last resort circumstances and with relevant human rights and the principles that underpin the MHA and AWIA firmly in mind. To this end, the Scottish Government Mental Health Directorate’s update of 27th March 2020 on Coronavirus Act 2020 as it relates to Scottish Mental Health legislation is therefore welcomed.
It is vital to appreciate when considering whether to use, and when implementing, the emergency measures that persons with mental disorder are not discriminated against, relative to others, in terms of enjoyment of their rights and safeguards. This includes enjoyment of autonomy (including liberty), access to health and social care support and services, access to justice, and protection and safety in situations of risk. The presence of mental disorder must not of itself constitute justification for disproportionate, unequal and discriminatory restrictions. To this end, we thus agree with the content of and recommendations made in both the Scottish Human Rights Commission Briefing: COVID-19 Emergency Legislation Scotland of 30th March 2020 and the Law Society of Scotland’s briefing on the Bill.
Importantly, to reiterate and expand on issues raised in our earlier comment:
Clarification is required regarding para 9 of Schedule 9 to the UK Coronavirus Act (relating to the MHA) as to:
- whether it is intended that the stated orders will continue in the absence of the usual statutory review process but with the Responsible Medical Officer formally confirming why an extension, direction or transfer is necessary;
- whether it is intended first reviews of compulsion orders will still be heard by the Mental Health Tribunal for Scotland (MHTS); and
- the impact of the suspension of automatic review of the orders stated in para 9, Schedule 9 on MHTS reviews under sections 101 and 165 of the MHA.
- Patients must be properly supported at MHTS hearings through having real and effective access to legal representation, their Named Person and independent advocacy.
MHA, AWIA and SWA
- Both the MHA and AWIA principles, and related human rights standards, emphasise the need to respect the wishes and feelings of persons with mental disorder and support their participation in healthcare and other welfare decisions concerning them. The Coronavirus (Scotland) Bill, or secondary legislation or guidance to the resultant legislation, should therefore reinforce this requirement by specifically requiring access to supported decision-making such as clearly and appropriately communicated information, respect for advance decisions, the ability for powers of attorney to take effect swiftly and meaningful access to independent advocacy. Moreover, adequate resourcing must be made available to support the provision of such supported decision-making. Providing such support will also be of particular assistance to those supporting and caring for persons with mental disorder in terms of ascertaining the individual’s wishes and feelings during the current COVID-19 crisis.
- The need to closely and independently monitor use of the emergency provisions, this role preferably performed by the Mental Welfare Commission for Scotland with adequate resourcing being provided for this purpose.
AWIA and SWA
- It is noted that Part 2 (para 11(1)), Schedule 3, of the Coronavirus (Scotland) Bill amends section 13ZA of the SWA to allow local authorities to take steps to benefit an adult even where a welfare guardianship, welfare power of attorney or intervention order is in place (or an application for a guardianship or intervention order is in progress). We recognise that in the current crisis it may be necessary to move vulnerable adults swiftly to settings that are more appropriate to their needs and to free up hospital beds where these are not required by such adults. This measure will provide some legal basis for moving the adult concerned.
At the same time, however, we are concerned that they may be moved to situations where they are in effect deprived of their liberty and otherwise restricted where they are unhappy with such arrangements and/or lack capacity to consent to them. In such cases, Articles 5 and 8 ECHR are likely to be engaged (informed by commensurate provisions in the CRPD). In order to respect the adult’s ECHR (and CRPD) rights in these situations it is therefore of paramount importance that proportionality is used in the implementation of these measures, as indicated in our first comment, and that real and effective access to legal review of these arrangements is made available immediately upon this emergency provisions ceasing to have effect. We would also repeat our comment above concerning access to and use of supported decision-making. Also, current statutory guidance on s13ZA is clear that it cannot be used where a deprivation of liberty would result. It would seem necessary to issue amended guidance setting out when s13ZA can be used as a legal basis for a deprivation of liberty in the current circumstances.
Professor Jill Stavert and Professor Colin McKayon behalf of the Centre for Mental Health and Capacity Law, School of Health and Social Care, Edinburgh Napier University
31st 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.