For the most vulnerable in society, the virus represents a real and imminent risk to health and life. Those working in the health and social care sector face a daily battle to ensure that the vulnerable people they support are safe and protected from infection, whether they live in registered care, nursing homes, or in a supported living environment.
Respect for autonomy and human rights should also be at the centre of the delivery of care and support. All good commissioners and providers will be aware of the importance of providing care in way which respects the wishes and life choices of the cared-for person in each case. Such considerations are particularly important when those cared for have mental health needs and may lack capacity to make decisions in their everyday life.
The Coronavirus Act 2020 ('the CV Act') has now been enacted in the UK and the Care Act Easements (CA Easements) took legal effect on 31 March 2020. The CV Act will have retrospective effect and codifies a number of Government measures already announced and the CA Easements are only to be implemented where a workforce is significantly depleted or demand increases to the point where it is no longer reasonably practicable to comply with the Care Act 2014.
The emergency powers conferred upon the Government and local authorities under the CV Act will have a particularly significant impact on those dependent upon health and social care provision. The CA Easements have stripped back a number of key local authority duties under the Care Act 2014, such as the duty to:
- assess an individual's needs for care and support;
- assess an individual's financial resources;
- meet an individual's needs for care and support;
Such duties will only apply where a local authority considers it necessary to meet an individual's needs in order to avoid breaching their Convention rights, as defined in the Human Rights Act 1998. The duties under the Equality Act 2010 remain, including any requirement to make reasonable adjustments where necessary.
Historically, case law has shown the threshold for a breach of such rights to be high. The CA Easements significantly 'water down' local authority duties as regards the care of vulnerable adults, in order to cope with the unprecedented strain on public services.
Although enforced isolation may be absolutely necessary in order to prevent the spread of the virus to those in particularly 'at risk' categories, isolation can itself have damaging implications for those who may already have little social contact. How can those providing health and social care effectively protect the rights of those they care for, and balance such rights against the wider concerns to ensure their safety, and the safety of others?
Government guidance now clearly instructs care homes not to allow visits from family and friends, only medical personnel and delivery couriers where necessary, on the basis that they sanitise their hands at the entrance. The safety of cared-for individuals and staff is paramount, however it remains important whenever imposing restrictions on individuals' freedoms, to ensure that the least restrictive options have been considered for residents.
Mental Capacity Act 2005 (MCA)
The Mental Capacity Act 2005 (MCA) provides protection for the rights of those that lack the mental capacity to make decisions independently. As those providing health and social care would in any other situation, staff should consider that when restrictions on the everyday choices and freedoms of individuals are to be imposed, careful consideration is given to the necessity of any such measures to prevent the individual concerned from coming to harm, and the extent to which the response is proportionate to the risk of harm.
All decisions involving additional restrictions to individual care plans (or blanket policies which impact upon the care of individuals), should be taken in accordance with the key principles of the MCA and Code of Practice, with consideration of individuals' self-determination and Convention rights, and where possible input and agreement from cared-for individuals and their families.
Deprivation of Liberty
The current DOLS regime will continue to apply to arrangements for care in residential care home and hospital settings, and a deprivation of liberty occurring elsewhere, in the community must be authorised by the Court of Protection.
The CV Act does not derogate from Article 5 ECHR. Individual rights not to be detained without lawful authority must therefore continue to be protected. In light of the additional, necessary restrictions on movement as a result of COVID-19, care providers should ask themselves whether the measures proposed to keep an individual who lacks capacity safe, constitute a deprivation of liberty. Are such restrictions necessary and proportionate to the risk of harm? The following criteria (taken from the 'acid test' established in the P v Cheshire West & Chester Council & another case (Cheshire West)) should be taken into account:
(a) Does the person lack capacity to the suggested arrangements?
(b) Are they free to leave?
(c) Are they subject to continuous supervision and control?
If the answer to (a) is no, and to (b) and (c) is yes, then this is likely to constitute a deprivation of liberty.
Providers and commissioners should work together wherever possible to agree on protective measures which respect the legal rights of the cared-for individual, and their best interests.
The Government has indicated that emergency guidance will be forthcoming to assist those caring for people who may be subject to a DoL requiring authorisation, to determine when an application should be made, and how the necessary assessments should be conducted, in view of the current crisis. This may signal a move for example, to more assessments being undertaken by video-link or telephone.
Should you require any advice or further guidance in respect of any of the issues discussed above, then please do not hesitate to contact our Health & Social Care Team.
