Coronavirus - support for adults with incapacity

07 April 2020

Caring for people with physical vulnerabilities has been an important theme of the public health response to COVID-19. However, the Coronavirus (Scotland) Bill also covers the legal arrangements for adults who are unable to make decisions for themselves due to mental incapacity.

Most such individuals will either have a Power of Attorney delegating decision making powers in welfare and financial matters, or a guardianship order granted by the court conferring these powers on a trusted caregiver. The provisions in the Bill deal with some of the practicalities of these arrangements during the crisis.

Firstly, local authorities will now be able to provide community care services, including residential care, for an incapable adult even where there is a guardian or welfare attorney with powers covering the proposed care decision (or where an application to court is pending). This was not previously within the scope of their powers. The Bill also removes the requirement on local authorities to take into account the wishes of the adult, relatives and other interested parties. However, neither provision will have effect unless Ministers make regulations and the current position is that they do not intend to do so unless absolutely necessary.

This assurance is welcome, especially given the implications ifthe proposed care arrangements are considered to be a deprivation of liberty. The policy of local authorities is usually to seek (or invite relatives to apply for) a court order rather than to exercise their power to provide care if this might infringe the person's liberty. I have acted in a number of such cases. However, the Sheriff courts across Scotland are currently dealing only with urgent matters. It is not clear whether they will treat a deprivation of liberty application as urgent and this is likely to depend on the circumstances of each case. In any event, it is likely to be difficult to obtain the necessary paperwork to make an application. Psychiatric and social work reports are required, which will become even more challenging to resource given the pressure on public services. Access to vulnerable adults to carry out assessments is also likely to be restricted if they are considered high-risk for COVID-19.

Nevertheless, it remains important in principle to take into account the human rights implications of decision making on behalf of adults with incapacity, particularly in cases where the person does not agree with the care decision.

As well as local authority powers, the Bill modifies some of the statutory time limits. Medical professionals can already authorise physical healthcare for a specified period for an incapable adult who cannot consent. The Bill provides that the clock will stop for the duration the emergency legislation is in force, and the authorisation will therefore remain in place. This means that incapable adults should not face any disruption to medical treatment for the duration of the crisis.

Similarly, guardianship orders are usually granted for a specified period of time. The Coronavirus Bill also stops the clock on existing (non-indefinite) orders for the duration of the emergency legislation being in force. This will be of particular benefit to guardians whose order is coming up for renewal and who are concerned about being able to obtain the necessary supporting evidence in time or having their application dealt with by the court. Renewal applications that have already been lodged in court will not be affected by the COVID-19 situation, as the existing rules already provide that the order shall continue to have effect until the renewal application has been decided by a Sheriff. However, the Bill also provides that the clock will not run on orders that are renewed during the period of effect.

While these provisions will help allay concerns among those caring for incapable adults, some issues remain. Sole guardians who have no substitute guardian (i.e. someone who may act in their place if they cannot do so) may be concerned about what will happen if they become incapacitated themselves. If this is for a brief period (e.g. a short hospitalisation), while practical care arrangements may need to be made, it is unlikely to be necessary to do anything about a guardianship order. For a longer-term absence, however, a substitute application to court may need to be considered. While that can be made any time, not just at renewal stage, it is unclear whether this would be treated as urgent. Furthermore, although there is no formal requirement in the legislation for a social work report in a substitute application, in practice some courts may require this as supporting evidence. If so, this solution will become more difficult to obtain.

The position for joint guardians is more straightforward. If one of them is no longer able to act the other can normally remain in place. However, it is not possible to delegate the powers granted under a guardianship order in your own Will, so the only option for sole guardians is to appoint a substitute. In the worst-case scenario, if there is no joint guardian or substitute then the local authority social work department will need to take responsibility for the incapable adult. Sole carers may want to consider discussing these arrangements with their social worker (although this is obviously a very difficult conversation to have) and perhaps taking legal advice on the prospects of an urgent application.

The Bill is also silent on the question of removing attorneys or guardians who are acting to the detriment of the adult, although presumably an application of this type would qualify as urgent, especially if initiated or supported by the Public Guardian and where there is a risk of harm to the adult.

Finally, another issue that can arise is where a guardianship order needs to be varied because its terms are no longer appropriate. One reason to seek a variation or termination of an order is where the adult has regained some capacity (e.g. recovery from head injury). This may not meet the urgent criterion for the court (although the adult would have a human rights argument). However, in practice, guardians have an obligation at all times to encourage the person with incapacity to exercise their own skills and develop new ones, so there is no barrier to an adult in this situation taking a greater role in decision making than envisaged when the order was granted. Guardians in this situation may wish to take advice to confirm that they are exercising their powers appropriately.

Some of these issues may be subject to further legislation or regulation as the COVID-19 situation develops. There is likely also to be greater clarity about what the courts will treat as urgent matters. For the time being, these are pragmatic provisions which it is hoped will allay some of the legal anxieties for caregivers at this very difficult time.



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