Scottish Association of Social Work Briefing to MSPs on the Coronavirus (Scotland) Bill
Briefing: Coronavirus (Scotland) Bill 2020
Scottish Association of Social Work 31st March 2020
The Scottish Association of Social Work is the largest professional association for social workers in Scotland. Our members are made up of qualified social workers across the country. On Tuesday the 31st of March, the Scottish Government introduced emergency legislation, the Coronavirus (Scotland) Bill 2020, in response to the Covid-19 pandemic. The Bill is said to “complement and supplement” the Coronavirus Act 2020 (“the 2020 Act”), passed by the UK Parliament on 25 March 2020, and which the Scottish Parliament gave its consent to on 24 March 2020. The bill will be considered by the Scottish Parliament at Stages 1 and 2 on Wednesday the 1st of April. This briefing seeks to highlight areas of concern within the bill, to be considered by MSPs ahead of this debate.
1. Care of Adults with Incapacity – amendment under Section 13ZA of the Social Work (Scotland) 1968 Act – place a duty on social workers and MHOs to provide evidence and review within 28 days
SASW is significantly concerned with the proposed amendment under section 13ZA of the Social Work (Scotland) 1968 Act, which removes the requirement for the local authority to apply the principles in subparagraph 1(4) of the Adults with Incapacity (Scotland) Act (“The 2000 Act”). Subparagraph (1)(a) limits the application of the principles to those set out in subparagraphs (2) and (3) of the 2000 Act. It removes the requirement for the local authority to apply the principles in subparagraph 1(4) of the 2000 Act, which are to take into account the present and past wishes and feelings of the adult and the views of other interested parties described in the subparagraph. 88. Subparagraph (1)(b) disapplies section 13ZA(4) of the 1968 Act.
Such an amendment allows local authorities to take steps to provide a community care service to an incapacitated adult despite them having a guardian, welfare attorney or an intervener with powers relating to the proposed steps, in relation to an intervention order or a guardianship order under the 2000 Act. Whilst we accept that hospital discharge is a strong priority to save lives during this unprecedented time, SASW believe this proposed amendment is a significant and deeply concerning human rights compromise. SASW suggest a duty be placed on social workers and Mental Health Officers to ensure they evidence why they have taken action under 13ZA of the amended Social Work (Scotland) 1968 Act that contravenes the will and preferences of the adult, or their appointed welfare guardian or welfare power of attorney, and such measures must be reviewed within 28 days.
2) Temporary amendment to Mental Health (Care and Treatment) Scotland Act 2003 –place a duty on Ministers to provide clarity on the number of orders and assessment frameworks in the Scottish legislation
SASW acknowledges that the Scottish Parliament gave consent to the Coronavirus Act 2020, which was passed by the UK Parliament on the 25th of March 2020. This Act includes temporary amendments to mental health legislation in Scotland, including the Mental Health (Care and Treatment) Scotland Act 2003 which reduces the requirement to only one medical practitioner being required to assess if a person should be detained.
SASW notes with concern the omission in the bill of an explicit duty being placed on Scottish Ministers to update and report on the number of mental health orders that have been made in the emergency period, as well as the assessment of human rights/person-centred options/capacity that has been made by practitioners that led to the provisions in the Act being applied. We suggest this be included to safeguard the human rights of those suffering from mental ill health whilst the temporary amendments are in place.
3) Requirements as to members of Children’s Hearings – two as the minimum
SASW notes the proposed changes under Section 5 of the Children’s Hearings (Scotland) Act (“the 2011 Act”), which provides that a children’s hearing must consist of three members of the Children’s Panel. Paragraph 1(2) of schedule 3 amends section 5 of the 2011 Act to provide that a children’s hearing can consist of fewer than three members where it is not practicable for a hearing to consist of three members.
SASW is concerned at the lack of explicit stipulation of whether ‘fewer than three’ would mean two, or even one member sitting on the panel. Panel’s reach their decisions by majority – if only one Panel member was present then that person is entirely in charge of the decision, with no scope for discussion or consideration of other views. SASW suggests this be amended to include a minimum of 2, and only in exceptional circumstances where it is impossible to have 3, to ensure balance and fairness on the decision of what is in the best interest of the child.
4) Looked After Children – local authorities must closely monitor in event of placement extensions
SASW notes proposed amendments to The Looked After Children (Scotland) Regulations (“the 2009 Regulations”) which makes provision for the placing of children with kinship and foster carers. This includes extensions to the time frames for reviews and appeals.
For example, Regulation 45 of the Looked After Children (Scotland) Regulations 2009 makes provisions for review where a child has been placed in kinship care under regulation 11.Subparagraph (9) amends this so that the first review must be carried out within 3 months of the placement, instead of six weeks, and so that subsequent reviews must then be carried out within six months of the date of the previous review.
Whilst these extensions are not unreasonable given the circumstances, SASW wishes to reinforce that local authorities must ensure there is some level of monitoring in place when reviews have gone past their original deadline, especially in new placements. Support and monitoring must be in place to ensure the child’s well-being and that the carer is managing.
SASW recognises the rationale behind the proposals outlined in the bill in this crisis but wishes to reinforce that these measures should only be enacted when absolutely necessary. Every safeguard possible should be in place to ensure the safety and well-being of looked after children and vulnerable adults during this time.
For more information contact:
National Director, Scottish Association of Social work
Communications & Policy Officer, Scottish Association of Social Work