Coronavirus (COVID-19): adults with incapacity

Emergency provisions

They were:

• easements to the requirement in s.13ZA of the Social Work (Scotland) Act 1968 to consult the adult and interested parties when moving an adult to residential accommodation

• ‘stop the clock’ provisions for guardianships, meaning that whilst the provision was in force the guardianship order was effective, but the time to expiry was paused. This dealt with the issue of possible expiry of guardianships before a renewal application could be lodged at court

• ‘stop the clock’ provisions for s.47 certificates for medical treatment, meaning that whilst the provision was in force the s.47 certificate was effective, but the time to expiry was paused. This dealt with the issue of possible expiry of certificates before a doctor could re-certify

This is a replacement to guidance published on 8 April 2020.

Expiry of s.13ZA provisions

The easements to s.13ZA contained in paragraph 11(1) of schedule 3 of the Coronavirus (Scotland) Act 2020 were the only provisions within the Act that did not commence following Royal Assent on 6 April. Even at the height of the pandemic the fine balance between the right to life and the right to be consulted was not such that the provisions should be brought into force.

Following stakeholder consultation, Ministers concluded that there would be no conditions that are likely to exist which would lead to the provisions being required in the future. These provisions were expired on 29 September 2020 through The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020.

Expiry of guardianship provisions

The guardianship provisions came into force on the 7 April. At that point the courts were only hearing urgent interim guardianship cases, the Office of the Public Guardian had a minimal amount of staff available and there were less doctors, mental health officers and solicitors available to complete the documentation required for guardianship (and renewal of guardianship) applications. Therefore to avoid guardianship applications that would have been renewed during this period from expiring before a renewal application could be lodged at court, and leaving the adult without appropriate protection, the provisions were brought in.

The conditions that existed when the provisions were brought in do not now exist. These provisions were expired at the end of the day on 30 September 2021 by the Coronavirus (Extension and Expiry) (Scotland) Act 2021.

Expiry of s.47 provisions

The s.47 provisions also came into force on 7 April and there was similar reasoning to the guardianship provisions for bringing these into force. The requirement for doctors to deal with pandemic-related issues meant there was a possibility that certificates might not be re-certified, leaving adults without proper authority for medical treatment.

These conditions are no longer present and the provisions expired at the end of the day on 30 September 2021 by the Coronavirus (Extension and Expiry) (Scotland) Act 2021.

Calculation of new expiry dates for guardianships and s.47 certificates

The ‘clock was stopped’ on 7 April 2020 (when the Act came into force) in relation to the duration of guardianships and s.47 certificates. On suspension of these provisions, the ‘clock started’ and the period for which the guardianship or s.47 certificate is in force resumed. 

The provisions were suspended from 30 September and are now expired. Therefore the ‘clock was stopped’ from 7 April up to and including 29 September. This equates to 176 calendar days.

Therefore 176 days need to be added on to the original date of expiry of the guardianship or s.47 certificate to calculate the new date. For example:

Original guardianship/s.47 certificate expiry date – 20 April 2020 
Add on 176 days
New guardianship/s.47 certificate expiry date – 13 October 2020

You should note that the clock is stopped on all guardianship/s.47 certificates that were in existence when the provisions came in to force, not only those which would have expired during that period. For example a longer guardianship that expired in 2025, for instance, would still have had the clock stopped on it, so 176 days have to be added on to the expiry date. For example:

Original guardianship expiry date – 23 May 2025
Add on 176 days
New guardianship expiry date – 15 November 2025

For the limited number of guardianships granted whilst the provisions were in force, the number of days from when they were granted until the provisions were suspended should be added on to the expiry date. For example:

Date guardianship granted – 3 June 2020
“clock was stopped” up to and including 29 September 2020
Therefore number of days to add on to expiry date – 119
Guardianship granted for 3 years
New guardianship expiry date – 30 September 2023

And finally, for those guardianship/s.47 certificates granted from 30 September 2020 onwards, no additional days need to be added.