Law & Ethics under COVID-19
The Coronavirus Act 2020, with its accompanying commencement regulations and guidance notes, has introduced some extraordinary changes into our legal system in these extremely unusual and difficult times.
With all of this new legislation being released, almost daily, it is very easy for legal professionals to become confused (as happened in the wrongful prosecution of Marie Dinou). For professionals working in the fields of health and social care, trying not only to cope with increased caseloads, fewer staff to do the work and a lack of crucial equipment, it is perhaps understandable, on a personal level, that some of these changes to the legislation under which they work might be missed.
On a wider level though, it is vital that any new law is not only noticed, but read, understood and, where necessary, acted upon. In the case of the legislation surrounding the Coronavirus, which has such a significant imposition on the liberties of the individual a correct understanding, by any health and social care professional, of what the legislation permits and does not permit can, literally in certain cases, be life-saving.
At the very least it will help to avoid valid complaints, court actions and appearances before disciplinary committees of various professional bodies.
The Coronavirus Act and Human Rights
The key to understanding the Coronavirus Act is in understanding its place within the legislative structure. It does not sit outside of legislation and it most assuredly does not provide a way to contravene the human rights of the individual or a group of individuals. Think of it instead as a temporary piece of legislation which allows some of the duties and responsibilities imposed on Public Authorities by other, more permanent, legislation to be streamlined for a short while in order to free up the manpower and resources to help those Public Authorities deal with the demands placed upon them by the Coronavirus itself. This “streamlining” can be switched on and off as the situation demands and, even when switched on, is subject to further checks and balances.
Adult Social Care is a Case in Point
In England, many of the duties imposed upon Local Authorities to meet the need for the care and support of adults in need of social care and their carers come from the Care Act 2014. The Coronavirus Act 2020 allowed for the making of Regulations which changed some of those duties into powers. The Coronavirus Act 2020 (Commencement No.2) Regulations 2020 came into force on 31st March 2020. At the same time the “Care Act Easements: Guidance for local authorities” was published.
The Regulations allowed for such things as the duties to assess and meet the eligible needs for adults and carers to be downgraded to powers. This was so that the Local Authorities were not obliged to meet those needs but had the power to do so should they choose to act. The Guidance requires that before the “easements” of the various pieces of legislation are applied, there must be a decision made by the Director of Adult Social Care for any Local Authority wanting to use them that “the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties….”. There are further requirements placed on the Director that, before they can make that decision, they must consult with other relevant bodies and people in an organised and staged manner so that changes should only be made where absolutely necessary.
Only if this and a number of other measures are adhered to, including the issuing by that Director of relevant guidance as to the use of the easements and powers by their personnel, would any changes to the usual way in which Adult Social Care is carried out by that Local Authority be legal.
On top of this, not all the duties imposed on Local Authorities in relation to Adult Social Care have been abolished. Of particular importance is that, whilst the duty on Local Authorities to review care plans has been reduced to a power, if the Local Authority decides to exercise it, they are still under a duty to consult with and involve the person at the centre of the care plan and any person they may have nominated. This has the twin effect of preventing Local Authorities from arbitrarily cutting packages of care and ensuring that the person’s rights to private and family life under Article 8 of the European Convention on Human Rights are upheld.
The Mental Capacity Act 2005 and DoLS
In this area of law it is very much business as usual. The “Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (Covid-19) Pandemic – Guidance for Hospitals, Care Homes and Supervisory Bodies” was published on 12th April. It goes to some considerable lengths to emphasise certain aspects of DoLS and the decisions in certain legal cases (not least Ferreira and Cheshire West). However, the overall message is that there should be no short-cuts and that the core principles of the Mental Capacity Act 2005 remain wholly unchanged.
The challenge of performing a capacity assessment on someone who cannot be met face to face is a very real one, but the onus is on whoever is performing that assessment to meet it. Similarly, Best Interests Assessments should always be carried out where needed and Best Interests meetings should still take place, albeit through video conferencing or telephone calls.
The Mental Health Act 1983
There appears to be a great deal of confusion as to what changes the Coronavirus Act has and has not made to the Mental Health Act. As of 15th April, the correct answer is “none”.
The Coronavirus Act makes provision for many changes to be made to the requirements of the Mental Health Act. A prime example is the reduction of a requirement for the written opinion of two Registered Medical Practitioners to that of only one in an application for admission to hospital. At the moment though, none of those provisions have been activated because there is not a sufficient demand on in-patient mental health services to justify the activation.
With Mental Health Law then, there is the same message as above. It is business as usual. Patients should be admitted under section in the normal way, they should be discharged from section in the normal way. Nothing should change beyond those changes which the Coronavirus Act requires in other areas, such as the need for social distancing and the reduction in leaves from the hospital ward.
Children and the Coronavirus Act
The impact of all of this new legislation on children and young people cannot be overstated. From the closing of educational establishments, to the suspension of exams for GCSEs and A-Levels, to the very real concerns that social distancing and consequential family isolation brings to children who are vulnerable, it is perhaps the nation’s young people who are least well equipped to bear the brunt of the pandemic.
On 1st April, the Department of Education issued “Coronavirus (Covid-19): guidance on vulnerable children and young people. On 3rd April they issued “ Coronavirus (COVID-19): guidance for children’s social care services”. These documents set out very clear and pragmatic guidance as to how the needs of vulnerable young people should be met during lockdown.
In short, the priority of all people who work on a professional level with young people should be on the vulnerable. Self-isolation and social distancing should not be an opportunity for neglect and abuse. It is the responsibility of all such professionals to do their utmost to make and maintain contact with such young people by whatever means necessary, short of actual physical contact. The emphasis is placed on finding creative solutions to this problem through the use of social media, WhatsApp, Facetime, and other communication tools.
This prioritisation does see a reduction in the resources on offer for other children and young people for whom home is safe and there are real concerns that the Coronavirus should not be seen as a way to excuse that reduction for any more or any longer than is absolutely necessary.
From what we are seeing in the national press and the daily announcements from the Government, it is very clear that the Coronavirus pandemic is far from over and that these extraordinary circumstances will be with us for some time yet. It follows that the regulations introduced by the Coronavirus Act will be switched on and off according to need and resources. Please watch this space for further updates as and when they occur.
This article was written by Max Duddles. Max is one of our Senior Solicitors and the Head of our Mental Health Department. He has over 25-years’ experience in representing clients before Mental Health Tribunals and the Court of Protection. He is also an acknowledged Subject Matter Expert in the field of Mental Health Law. During the Coronavirus Panedemic he is assisting Bond Solon with training Health and Social Care professionals in how to act lawfully and ethically under the Coronavirus Act 2020.