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SASW Position Statement: Schedule 9 UK Coronavirus Act Equalities & Human Rights Evidence Session

On the 27th of August, SASW were invited to give oral evidence at the Equalities and Human Rights Committee as part of their ongoing inquiry into the impact of Covid-19 on equalities and human rights. The focus of the session was Mental Health and the UK Coronavirus Act 2020: Schedule 9, which includes measures to provide for longer periods of emergency detention and make it simpler for securing short-term detention certificates and compulsory treatment orders. Our Committee Member and Mental Health Officer, Lindsey Young, served as the Association’s representative.

As social workers, Mental Health Officers see their roles as human rights defenders, fulfilling a duty-bound statutory function in accordance with the Mental Health (Care and Treatment (Scotland) Act 2003 (the 2003 Act), the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) and the Adults with Incapacity (Scotland) Act (the 2000 Act). The activities of the workforce span across multiple domains intersecting the impacts of structural poverty and trauma. MHOs have a unique role in supporting and protecting those to whom Schedule 9 applies.  

Whilst SASW remains reassured that the measures under this section of the Act are yet to be used – we feel it is essential they remain in place. We wish to reinforce that the commencement of these powers must come with a very high threshold, based on the most extreme circumstances. However, they serve as a contingent in the event of significant pressure on frontline staff due to the ongoing threat of the pandemic, and potential impact of the enforcement of future lockdowns – local or national. We are in a very sensitive phase of this crisis – and it would be remiss to assume that the worst has passed. We remain mindful of the potential resurgence in staffing challenges – both within the NHS and social work services – as we approach the winter months and a prospective second wave. As such, we are cognisant of the value of being able to enact the emergency powers if required at the present time.

To drop these measures – and to find out they are needed later – could lead to significant issues for social workers on the front line, causing unnecessary delay to the treatment of patients. SASW would therefore urge the committee to think cautiously about having no legislative base going forward.

Whilst absence levels have not been as significant as was anticipated, the pandemic has still had an impact on frontline staff. Mental Health Act activity has increased by 25-30% since the pandemic began. Equally, as Adults with Incapacity activity begins to increase again, further outbreaks of COVID-19 could have a severe effect on workforce capability. Less urgent case work that has been on hold is still there to be picked up – for example guardianships – and there was already a backlog before the virus.

We know from listening to the experiences of those on the frontline that workloads have increased, yet staffing capacity has in some areas decreased. One factor in this is the makeup of the MHO workforce in Scotland. Statistics from within the SSSC MHO (Scotland) Report published this month indicate that the MHO workforce continues to be an ageing one. One third are over 55, with the average age of women being 50; 52 for men. We know from anecdotal evidence that a proportion of the workforce come into shielding or ‘at risk’ groups. The statistics also show that 70% of the MHO workforce are women; it has been widely reported that women have been disproportionately affected by an increase in caring responsibilities due to lockdown. Exclusive MHO’s constitute 31% of the workforce, whilst non-exclusive MHO’s who carry out other social work tasks make up 61% of the workforce. 27 local authorities report an MHO staffing shortfall. The makeup of the workforce contributes to pressure on staff and adds to burnout and potential for burnout. This last year has seen the highest number of leavers amongst the MHO workforce. With this in mind, we need to think pragmatically about the frontline workforce and should not eliminating Schedule 9 at this stage. Increased staff absence could push the workforce towards tipping point, necessitating activation of the emergency powers. Consideration must also be given to the accompanying guidance; if the Schedule is revoked, the guidance also disappears. In the event of a second wave and a need for extra emergency powers, would come a need for accompanying guidance and an extra pressure on staff who must quickly become familiar with it. To revoke and then re-enact would be much more onerous that keeping the Schedule but only using it if absolutely necessary.

SASW also wish to reinforce our position on amendment 13za - we remain concerned, and briefed MSPs back in March before the Act received Royal Assent. Whilst we accept that hospital discharge is a strong priority to save lives at this unprecedented time, we believe that the amendment to 13za is a deeply concerning human rights compromise. As we suggested, a possible safeguard could be to place a duty on social workers and MHOs 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. We do, however, remain heartened that these changes have not been used to date.

Lastly, SASW wishes to stress how important it is that we harness what we have learned during the pandemic, taking a proactive, prepared response if there is a second wave. What has come to light is there are other ways we can do things. It is important we look at digital literacy within the workforce and amongst the people we support. Checks and balances are necessary to ensure human rights are protected, and the MHO workforce is part of ensuring these take place. Consideration must be given to clear guidelines on what the powers are for, when they will be used, when they will no longer be required and what the trigger is. Whilst we believe there are some reasonable protections in place already in terms of human rights, there is scope for some additional safeguards which can work alongside Schedule 9 to ensure human rights are protected.  For example, geographical rollouts, on an as-required basis, instead of national. We are beginning to see local outbreaks, where more extreme measures might prove to be necessary, in which case the capacity to activate on a local level would be beneficial and would avoid unnecessary widespread activation.