Have you heard of the curse, “May you live in interesting times”. An old English curse falsely attributed to the Chinese philosopher, Confucius.
These are interesting times. Times, when we look back to the Brexit crisis and think of it as the good old days. We could introspectively consider it preparation for the anxiety and uncertainty that faces us.
For those in this society with special needs there is the exceptional stress from the suspension of key Local Authorities duties obliged by the Care Act, under the Coronavirus 2020 legislation. I should like to consider its implications but as we do that we should remember in these exceptional times all of us should accept a degree of sacrifice, apart from Premier Division footballers, where apparently sitting idle at home eating nachos is sacrifice enough. Remember also this act of law was brought to the Statute books with a haste, that it’s like, has really been seen before.
There are many people, with more qualifications and experience to comment on the actualities of the legislation than I am, so the thoughts reflected below are from qualitative sources I have referenced at the end of the article. This is necessarily a brief overview of their views but you will find links to their full articles for an in-depth perspective.
Implications for the Care Act and the Mental Health Act, as determined by the Coronavirus Act 2020.
Some provisions within the Coronavirus Act 2020 are intended to enable authorities to prioritise resources, should they be unable to meet their statutory duties should demand spike and staffing resources shrink significantly as the Covid-19 pandemic reaches its peak. They will only be applied if required.
Suspend are the duties on English local authorities to assess the needs of adults, adult carers, disabled children in transition and their carers and young carers who appear to have needs for care and support – or support in the case of carers – and to determine whether such needs were eligible. Councils would also not have to carry out financial assessments though would not be able to charge for care and support without having done so. Also suspended, similar duties of Welsh Local Authorities.
Department of Health and Social Care director Jonathan Marron said: “I know that you will be committed to delivering on all your existing duties during the coming period. However, we need to prepare for the possibility that during the peak of an epidemic a greater number of people will need social care and many staff may be unavailable due to illness or the need to care for loved ones.
“This could mean that you need to focus your resources on ensuring the most serious and urgent care needs are met, and defer meeting some other, less acute or pressing needs.”
This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making.
Equal concern and respect should be given to all individuals, their families and carers, and communities, as well as the professionals and volunteers that we will be relying on to ensure the delivery of our services and ambitions.
In all instances, respect and reasonableness should be used as the fundamental, underpinning principles which guide planning and support judgements.
• Respect
• Reasonableness
• Minimising harm
• Inclusiveness
• Accountability
• Flexibility
• Proportionality
• Community
Full details of the framework will be found here;
https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care
Mental Health Provisions
Mental Health Act applications for detention: an application to detain a person under sections 2 or 3 of the act can be based on a single recommendation from a doctor, rather than two, if seeking a second recommendation is “impractical or would involve undesirable delay”.
Extension of Mental Health Act time limits: extending time limits for doctors and nurses to detain patients already in hospital pending assessment to 120 and 12 hours, up from 72 and 6 respectively; allowing the police to detain a person in a place of safety for 36 hours, up from the current 24.
NHS continuing healthcare: NHS clinical commissioning groups would not have to comply with the duty to carry out an assessment of need for NHS continuing healthcare if it appears that the person may have need for such care.
Social work workforce: the act provides for the creation of temporary registers of social workers in England and Wales so that the workforce can be bolstered.
It should be remembered that currently the Care Quality Commission receives about 16,000 requests for formal second opinions every year, and in 2018-19 changed treatment plans in 29 % of their requests.
Key bits for social care suspension need to be commenced by regulations, which ministers would introduce if we enter an emergency period.
What people say on the matter.
The British Association of Social Workers England said:
That while it strongly supported the government’s aim of enabling local authorities to prioritise services so they could meet the most serious and urgent needs, there were better ways of doing so.
It said it was “concerned that the significant level of legislative change proposed in the bill is likely to delay actions, because of the scale of the changes and the resources it will require to implement them. New administrative systems will be required, and social workers and other staff will require training in applying these systems and adapting their ways of working.”
Helen Walker, chief executive of Carers UK, said: “We recognise these are temporary measures which should help local services better deal with coronavirus – but it is essential that councils continue to assess the risks and vulnerabilities affecting carers and the people they support.
CASCAIDr said:
Eligibility and Review duties for service users and carers can be suspended, except for sections 27(2) and (3) – the REVISION section.
Those sections contain the mandatory duty to INVOLVE adults and carers before making a cut to any existing care or support plan.
We’re not sure that councils’ management teams would necessarily understand the implications of that non-suspension, and we’re already hearing that cuts (even if understandable in themselves) are simply being notified in the post or on the phone.
‘Notification’ is not ‘involvement’ and won’t be enough to comply with this unamended ongoing duty, we can confidently predict.
c) Section 27(2), on revision of existing care plans, has NOT been included in the provisions that are capable of being suspended or modified.
That means that involvement of service users and their carers BEFORE any revision of a care plan – is still a continuing legal obligation.
Whatever involvement might mean to a judge, notification of an arbitrary decision, just taken back at HQ or on an online meeting of the SMT, is not likely to be lawful, we would suggest.
Jenni Richards QC, Victoria Butler-Cole QC and Sian Davies said that the government’s objectives could be met by:
• “Retaining the relevant social care duties but amending their application so that local authorities are only required to implement them as far as reasonably practicable. Where the draft Bill says the local authority does not have to comply with a duty, the new drafting would say that the local authority has to comply with the duty only to the extent reasonably practicable. The ‘reasonably practicable’ rider would not apply where there were anticipated ECHR breaches.
• In any event, adding an express requirement to carry out an assessment to verify whether there would be any ECHR breach. This would most likely be implied as a matter of law on the basis of the current drafting, but it would be clearer for local authorities for it to be spelled out on the face of the legislation – the current draft requires local authorities to be satisfied there would be no ECHR breach but says they have no duty to assess any individual’s needs, which would be the only way to ascertain this.”
I believe it to be the case that in these exceptional times it is reasonable to accept a diminution of the rights that have been achieved, to allow special needs members of this society to live as full a life as those of us who do not suffer that disadvantage. In doing that I would caution though, that we learn from this lesson.-
Almost 20 years ago we accepted the most draconian erosion of our civil liberties and uncounted costs, here and in the USA so we might fight the scourge of terrorism, and save lives. Having obtained those powers the authorities of both countries have been reluctant to let them go, citing the need for the maintenance of these lifesaving powers. In the last five years there have been 206 terror -related deaths in the USA and 56 in the UK. In the same period there have been 207,500 deaths in the USA and 90,500 deaths in the UK from influenza -related viruses.
It is reasonable in this crisis to concede some of the hard-won disability and mental health rights achieved over recent decades. It is necessary that when the crisis abates, that everyone raises their voice to ensure those rights are reinstated in the New World, where societal resources shall be even harder to come by.
References
CASCAIDr
https://www.cascaidr.org.uk/2020/03/20/the-emergency-powers-bill-as-it-affects-the-care-act/
Coronavirus Act 2020
https://www.legislation.gov.uk/ukpga/2020/7/contents/enacted/data.htm
Care Act 2014
https://www.legislation.gov.uk/ukpga/2014/23/section/1/enacted
