When should a health and welfare deputy be appointed?
Moore Blatch | 10.04.2020
22.04.2020 Mea North
The Coronavirus Act 2020 amends key legislation in light of the current pandemic and aims to alleviate the burden on those areas which are most affected. Health and social care is an area that is under immense pressure and already scarce resources are being called on to help manage the impact of the virus on society’s most vulnerable individuals either because existing carers are unwell, or unable to provide support for another reason. Although the Act came into force on 25 March 2020, the parts dealing with social care (section 15 and schedule 12, part 1) were only brought into force themselves on 31 March by The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020.
The Coronavirus Act alters the provisions of the Care Act 2014 and states that Local Authorities have the power to disapply or modify their Care Act duties in relation to assessing needs, assessing finances, meeting eligible needs or preparing care and support plans. This article provides an overview on the changes to assessments and provision of care only and we would encourage anyone who has social care needs to get in touch for more detailed advice on your individual circumstances and how these changes affect you.
To assist Local Authorities, the Department of Health and Social Care have issued guidance around the new approach. The Care Act easements: guidance for local authorities, aims to help Local Authorities understand the impact of the Coronavirus act on their social care duties and sets out how their new powers should be used. The guidance makes it clear that these powers are very much a last resort and should be used narrowly. If a Local Authority is able to meet their existing duties prior to these changes coming into force, then they should continue to do so for “as long and as far as possible” . Responding to COVID-19: the ethical framework for adult social care was published before the Coronavirus Act was in force but is essential reading for all Local Authorities as the guidance states that this ethical framework must be applied in all Local Authority decision making.
This ethical framework acts as a safeguarding mechanism and sets out eight values and principles that must be considered when making challenging decisions regarding the delivery of social care, to ensure that the individual remains at the heart of decision making. In addition, there is nothing in the Coronavirus Act that removes the general duty set out in section 1 of the Care Act, obligating Local Authorities to promote the individual’s wellbeing when exercising any of its functions in relation to social care. This is highlighted in the guidance and supported by the ethical framework, further demonstrating the need to maintain a personalised approach to the delivery of care and support.
Schedule 12, section 2 of the Coronavirus Act states that Local Authorities do not have to comply with their duties under the Care Act in relation to assessing an adult, child or carer’s need for care and support. However, if the Local Authority’s failure to meet a need would result in a breach of an individual’s human rights, then the Care Act easements do not apply and a Local Authority would remain obligated to meet that need. As such there is still a requirement for Local Authorities to respond to requests for care and support and assess what needs to be provided, if anything.
Some key rights set out in the Convention are:
• Article 2 – Right to life; a Local Authority must take steps to safeguard the lives of individuals within their area and provide support to meet the needs of anyone where failure to do so would result in a real and immediate risk to life.
• Article 3 – Right not to be subject to inhumane or degrading treatment; a Local Authority must meet the needs of an individual where failure to do so would deliberately inflict an individual to inhumane or degrading treatment.
• Article 14 – Right not to be discriminated against; Local Authorities will need to justify any differences in their approach to provision of care and support to individuals. Where they can show that their decision is proportionate and meets a legitimate aim, the difference is likely to be lawful.
The guidance sets out a number of steps that ought to be taken by any Local Authority before exercising any of their powers under the Coronavirus Act. Where it becomes necessary to utilise the Care Act easements, Annex B of the guidance suggests how a Local Authority might achieve a streamlined assessment process, which does still need to be documented, and states that there should be a clear and transparent pathway for individuals with care needs. There is however a great deal of discretion afforded to each Local Authority as to how these new rules will be implemented and we are likely to see a number of different approaches being applied across the country.
While the Coronavirus Act removes the duty on Local Authorities to meet an individual’s eligible care and support needs, this does not mean that a Local Authority can stop meeting these needs if they remain able to do so. “All reasonable steps” should be taken to continue to meet these needs where possible. Only if they are unable to do so will the Coronavirus Act allow Local Authorities to prioritise provision of care, to ensure that they are able to meet the most pressing needs of vulnerable individuals. Annex C of the guidance sets out a helpful tool for Local Authorities when considering how to prioritise the provision of care taking into account the complexity, level of risk and level of need.
It is essential to remember that these changes are temporary and are a direct response to the COVID-19 pandemic and the immediate crisis faced by the health and social care sector as a result. The guidance is clear that the powers afforded to the Local Authority to disapply or modify their duties under the Care Act will be kept under review and removed as soon as possible. It also states that all assessments or reviews not completed as a result of this will be followed up and completed in full once the new act is suspended .
While there is no doubt that the new measures implemented by the government will assist Local Authorities who are struggling to meet their statutory duties now, allowing them to simply ignore their duties except in the most severe cases is not the answer long term. The social care system was stretched to the limit even before this pandemic and we hope that when the Coronavirus Act is suspended, and things return to ‘normal’ the government continue to recognise the importance of social care in the wider community and work to find a solution that will ease the burden on this field, while still affording vulnerable adults the care and support they deserve.