Primary and secondary legislation, central government guidance and judicial decisions provide essential frameworks for the commissioning and provision of adult social care. But legal rules must be interpreted and applied in complex situations requiring the use of professional judgement. This is often referred to as legal literacy (Braye, 2016).
The Coronavirus Act 2020 was enshrined in law in March 2020. Schedule 11 of the act modifies the duties of local authorities in respect of meeting care and support needs of adults, notably easements to the Care Act 2014 and the Mental Health Act 1983 (not yet in force). The act has three main aims:
- to give further powers to the government to slow the spread of the virus;
- to reduce the resourcing and administrative burden on public bodies;
- to limit the impact of potential staffing shortages on the delivery of public services (Institute for Government, 2020).
The legislation will be in place for an initial period of two years and reviewed every six months. The speed at which the bill was passed reflected the sense of national crisis but left little time for careful reflection and response. Given this, a legal literacy approach supported by clear and comprehensive recording is critical now more than ever.
Court craft is a core competency for practitioners, and confident practice can be developed with the right knowledge and support. The role of reflective supervision, and the support of managers, is essential in developing the skills needed for good court craft. A cornerstone of good court craft is defensible decision-making. Understanding what excellent practice looks like – in terms of recording, writing and presenting for court – helps the development of court craft skills (Page & Johnstone, 2019).
Mental Capacity Act 2005 and COVID-19: thoughts for practice
The Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS) remain unchanged by the Coronavirus Act 2020. Nonetheless, aspects of planning for assessment or review will be impacted by easements to other pieces of legislation (Ruck Keene, 2020). Here are some implications to consider:
- Retired and or new staff are coming back into health and social care settings so it will be important to ensure practitioners are legally literate, fully understand the five principles of the MCA and its importance as a statutory mechanism to support and protect rights. The following webinar may be helpful – Human Rights and adult social Care: Chris Hatton Part 1 (2020).
- In order for mental capacity assessments to be as effective as possible these are things to consider, such as using all communication strategies, including non-verbal communications, may be far harder to ascertain over the telephone or via video link. The What is the Mental Capacity Act 2005? Brief Guide – Easy Read version (2017) may be useful.
- Accessing good support and thorough preparation is vital, such as working out ahead of time any reasonable adjustments and or communication requirements that may need to be considered. Seeking support may be a challenge due to colleagues home-working, and the current demands of having to respond in crisis mode. Find good trusted sources of information online or a colleague that can help.
- If a lack of capacity to a particular decision is found, best interest decision-making will require thoughtful consideration from the ‘decision maker’, chiefly because decisions will need to be based on available options at this current time.
It is vital that practitioners look closely at their organisational best interest checklist, balance any decisions against the human rights legislative framework and consider all aspects alongside up-to-date government advice around the COVID-19 pandemic.
- Practitioners should ensure to record clearly and show their workings out in regard to safeguarding concerns. There may be worries about a person making a capacitated yet seemingly unwise decision. Most Safeguarding Adults’ Teams in local authorities will have a professionals’ line for advice and signposting; if possible, be open with the person that you have concerns about and tell them you will be seeking support. Risk management in this arena should always feel proportionate and person-centred.
- Advance care planning: the need is important at this time because people may be worried about becoming infected with COVID-19 (General Medical Council, 2020). A person’s wishes and preferences should be taken into account when supporting them to consider their care options, should they lose or experience fluctuating decision-making capacity in this area later down the line. Families will appreciate a sensitive ‘whole family approach’ (Care Act 2014). Additionally, practitioners may be operating in circumstances that may move fast, feel urgent or complex, and so where appropriate forward-planning will be useful.
Care Act 2014 and COVID-19
Guidance states that local authorities should only take a decision to exercise the Care Act easements when: the workforce is significantly depleted; demand on social care increases to an extent that it is no longer reasonably practicable to comply with Care Act duties; where to continue to try to do so is likely to result in urgent/acute needs not being met, potentially risking life: changes should be proportionate to the circumstances (DHSC, 2020). April’s 2020 Case Law and Legal Summaries details the changes and implications for practice.
The decision to enact easements should be agreed by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker. The decision should be fully informed by discussion with the Local NHS Clinical Commissioning Group leadership and should be communicated to the Health and Wellbeing Board, all providers, users of services and their carers. The decision should be reported to the Department of Health and Social Care. Local authorities should hold a record with supporting evidence. Where possible the record should include: the nature of the changes to demand or the workforce; the steps that have been taken to mitigate against the need for this to happen; the expected impact of the measures taken; how the changes will help to avoid breaches of people’s human rights at a population level; the individuals involved in the decision-making process and the points at which this decision will be reviewed again (DHSC, 2020). The Social Work Organisational Resilience Diagnostic offers evidence-informed approaches to support building organisational strengths and provides a range of tasks and strategies to help foster the conditions to better support the wellbeing of social workers.
COVID-19: adult social care and support - information and guidance related to social care, including commissioning and supporting the provider market, and working collaboratively with health partners (Local Government Association, 2020) brings together all relevant resources for those working at strategic level. In addition, Responding to Covid-19: the ethical framework for adult social care (DHSC, 2020) intends to provide support to ongoing response planning and decision-making to ensure that ample consideration is given to a series of ethical values and principles when organising and delivering social care for adults. There will be impact upon assessment and care/support planning for those local authorities who actually enact the easements. The following resources may be supportive:
- Assessment – Brief Guide
- Embedding strength-based working – Webinar
- Embedding human rights across social care – recorded webinar
- Supporting outcomes-focused practice – website
- Social care practice with carers – website
Mental Health Act 1983 and COVID-19
Emergency laws have been passed (although not yet in force), including temporary measures to the Mental Health Act 1983 and tribunal procedures. The emergency legislation responds to concerns that demand will increase while the availability of qualified practitioners will decrease (Allwood, 2020). It is noted that the code of practice has not been amended, this means that the practicalities of getting compliance measures to work on the ground may require some additional action. Rethink Mental Illness (2020) have comprehensively listed the changes, in summary:
- Permit the detention of people for assessment/treatment and are a risk to themselves or others based on the opinion of one doctor (rather than two) before an application is made by an Approved Mental Health Professional (AMHP).
- Police holding powers: increase the time in which a person can be held in a Place of Safety under Sections 135 and 136 from 24 to 36 hours.
- Emergency detention of people already in hospital: extend the powers to hold a person for an increased time: under section 5 (2) – up to 120 hours (approved clinician) and under section 5 (4) – up to 12 hours (mental health nurse).
- Mental Health Tribunals:
- Detention under section 2 means people have the right to appeal to a mental health tribunal. Emergency legislation says the tribunal must take place within 10 days rather than 7.
- The tribunal can decide to have a paper only tribunal and base decisions on the paper evidence that they have. People can give written evidence or legal representatives can.
- Tribunals will make greater use of video or phone.
- Usually the tribunal is heard by three panel members (a legal member, a doctor and a lay member) tribunals can now be heard by a single legal member only.
- For those on a Community Treatment Orders or on a conditional discharge from a criminal section: if it has been agreed there will be a paper tribunal this will go ahead as planned.