Centre’s submission to Scottish Parliament Human Rights and Equality Committee Inquiry on COVID-19
Human Rights and Equality Committee Inquiry on COVID-19
Submission by the Centre for Mental Health and Capacity Law, Edinburgh Napier University
The CMHCL is the leading academic centre in Scotland in the field of mental health and capacity law. It brings together academics, professionals and people with lived experience, with a strong focus on equality and human rights. It works closely with the Scottish Human Rights Commission, the Mental Welfare Commission, the Law Society of Scotland and others, and has been monitoring the effect of COVID-19 and the Government response on the human rights of people with mental health problems, learning disability and dementia.
What groups and individuals are disproportionately impacted by COVID-19?
People with a mental illness (including dementia), people with a learning disability, and people with a neurodevelopmental condition (such as autism) are all likely to be disproportionately impacted, particularly in the following ways:
- Reduction in key services and supports
- Removal of duties to assess needs
- Removal of legislative protections in mental health and incapacity law
- Denial of human rights in respect of choice of accommodation, access to families
- Failures to make reasonable accommodation for particular needs in measures such as restrictions on going out
- Discrimination in the prioritisation of access to health care, particularly critical care.
Our comments focus on legislation and government guidance.
The Centre has submitted detailed observations on the UK and Scottish Parliament emergency legislation, and Scottish Government guidance on the COVID-19 Ethical and Support Framework and Clinical Advice. We summarise below our key concerns.
Other organisations are better placed than us to comment on the impact of a reduction in social care and health services, which we understand to be significant.
These comments reflect the most pressing issues today. The situation is fast moving – some of our concerns may be addressed by future revisions to Government guidance, and new issues will emerge. We would be happy to provide updated evidence, should it be helpful.
What the Scottish Government and other public bodies need to do to ensure that measures taken in relation to the pandemic minimise negative effects on equality and human rights
Several international human rights bodies have issued guidance on the human rights implications of the emergency. These apply whether specific emergency measures are used or ordinary ones retained during a crisis.
Key principles include:
- The enjoyment of the highest attainable standard of health is a fundamental human right of all, which should be achieved without discrimination
- A state of emergency, or any other security measures, should be guided by human rights principles: measures should be based on law, objectively justified and proportionate
- States should prevent discriminatory denial of health care on the basis of disability
- States must ensure that persons with disabilities are actively involved in the implementation and monitoring of COVID-19 measures.
In particular, the Scottish Government is obliged to comply with the European Convention on Human Rights, including the rights to life (Article 2), dignity (Article 3), liberty and access to justice (Articles 5 and 6), and respect for private and family life (Article 8). Even where there is justification for a limitation of these rights (including the state’s positive obligations to give effect to these rights), it must be proportionate to the needs of the situation and must not be discriminatory. People with a diagnosis of a mental disorder or with capacity issues should not be denied legal and procedural safeguards.
The Scottish Government is also committed to the implementation of the UN Convention on the Rights of Persons with Disabilities. That reinforces the need to ensure that people with disabilities ‘are entitled without any discrimination to the equal protection and equal benefit of the law’ (Article 5) and that states must take ‘all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including … humanitarian emergencies’ (Article 11). Such protection should not result in restricting the liberty and autonomy of persons with disabilities where the harm emanates from situations or other persons on an unequal basis with others. Moreover, it must be appreciated that persons with disabilities may require access to appropriate support in order to be able to enjoy rights on an equal basis with others.
Measures taken by the Scottish Government and other public bodies and the impacts they may have on equality and human rights.
The Coronavirus Act 2020 and Coronavirus (Scotland) Act 2020
The UK emergency legislation includes provisions (Schedule 9) which significantly weaken the safeguards for people detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, including
- Extending the maximum duration of emergency detention and the power of nurses to detain patients pending a medical examination
- Allowing doctors to authorise and extend short term (28 day) detention without the approval of a mental health officer (an independent social worker)
- Reducing from two to one the number of doctors required to apply for long-term measures (a compulsory treatment order)
- Suspending the requirement to review the order before renewing it after six months
- Reducing the number of members of a Mental Health Tribunal.
The Scottish legislation contains amendments to the Social Work (Scotland) Act, concerning care which can be provided by local authorities to adults who are not capable of consenting to this (e.g. because of dementia). They remove the requirement for the local authority to take account of the views of the adult and their carers and family, and empower the local authority to provide care without consent even where a welfare guardian or welfare attorney is in place or being sought.
The intent is to allow a local authority to move someone from hospital or their own home to a care home, without the need for a legal process, and even if that is not the wish of the adult.
We understand why such moves may be urgently necessary, but doing it in this way creates a serious risk that people will be deprived of their liberty, potentially breaching Articles 5 and 8 of the ECHR (and Articles 12 and 14 CRPD).
These changes have not yet been brought into force, and we hope they may not be necessary. Indeed, proportionality requires that even where these measures come into force they should only be resorted to where absolutely necessary. We are reassured that the Mental Welfare Commission has established a scrutiny group to monitor the effect of the changes, should they be introduced. We suggest that the Committee may wish to invite the Commission to keep it appraised of emerging concerns about the human rights impact of the changes.
The changes to the Mental Health Act are intended to cover a situation where detention may be necessary but there are too few professionals available to operate the normal safeguards. In practice, we suspect the biggest impact on human rights may be from people not being admitted to hospital who may require it, or being left in the community without support. It is therefore vital that the impact of reductions in services and on the operation of existing safeguards is also monitored.
Clinical and ethical guidance
An Ethical Advice and Support Framework has been published by the Government, to guide clinicians and NHS Boards. We welcome this, but we believe it needs significant revision to be human rights compliant, particularly
- By ensuring that the underpinning human rights principles are set out
- By more clearly reflecting principles of patient autonomy and the requirements of the Adults with Incapacity (Scotland) Act 2000.
The guidance states that a national Ethical Advice and Support Group will be established, and asks that similar local groups are established. A month after the guidance was issued, we have seen no detail about who will be on these groups. Given the likely disproportionate impact on disabled people of decisions about healthcare prioritisation, it is essential, in line with Articles 4(3) and 29 of the CRPD, that these include organisations of and representing disabled people.
Clinical Advice was published alongside the Ethical Framework. We raised a number of significant concerns about this guidance:
- It referred to the Clinical Frailty Scale as a tool in assessing who should access clinical care, without acknowledging that this tool is not validated for use in people with learning disabilities or autism, or younger people with physical disabilities
- Neither it nor the Ethical Framework actually contains any ethical advice on what to do, or not to do, should clinicians be forced to ration access to particular services
- They give no advice on the need to ensure that decision making does not discriminate against disabled people, particularly by imposing subjective assumptions regarding quality of life
- The Clinical Advice includes an ‘anticipatory care planning template’ and ‘template treatment escalation and limitation plan’ which are, in our view, inadequate and potentially discriminatory. They tend to imply that the purpose of anticipatory care planning is to authorise a decision not to provide critical care, rather than to allow the patient, with support, to determine for themselves what treatment they would wish. The second template could also be read as suggesting that being a nursing home resident was a reason not to admit to critical care.
We and other bodies, including the Scottish Human Rights Commission and the Equality and Human Rights Commission, criticised these documents, and we understand that revisions are being considered.
We welcome this but, in the meantime, further guidance has been issued which contains many of the same problems:
- guidance on Using Physical Restraint For Patients which fails to address the legal safeguards which govern the use of restraint, and
- guidance on Emergency Department Management of Suspected COVID-19 in Adults. This contains a flow chart to inform decisions which appears to suggest that, for patients with advanced illness, having a DNACPR certificate or being a nursing home resident is a reason to discharge the patient rather than admit them for further medical care. This may be unintentional, but is clearly discriminatory.
We ask that the Government commit to urgently reviewing all these documents, in consultation with disabled people’s organisations and bodies with expertise in medical ethics, and develop clearer and more consistent guidance to support anticipatory care planning which is truly supportive and empowering.
Further human rights issues will emerge as we move out of lockdown. One concern is the interaction of public health legislation (The Public Health (Scotland) Act 2008 and the Coronavirus Act 2020) and mental health and incapacity legislation. If, for example, a person is mentally ill and thought to be a carrier of the virus it is important to be clear which legislation is to be used and how their rights will be safeguarded.
A particular concern is that the easing of restrictions may be discriminatory, for example in imposing greater restrictions on older people than others. The issues of proportionality, non-discrimination and not interpreting protection primarily in terms of restricting a person and therefore their liberty and autonomy are highly pertinent here.
Professor Jill Stavert, Professor Colin McKay
Centre for Mental Health and Capacity Law, Edinburgh Napier University
6th May 2020
 All available at http://blogs.napier.ac.uk/cmhcl-mhts/
 Committee on Economic, Social and Cultural Rights: Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights https://undocs.org/E/C.12/2020/1 ,
‘UN Human Rights Treaty Bodies call for human rights approach in fighting COVID-19’ https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E,
Joint Statement: Persons with Disabilities and COVID-19 by the Chair of the UNCRPD and the Special Envoy of the United Nations Secretary-General on Disability and Accessibility https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25765&LangID=E