As efforts step up across the UK in response to the Covid-19 pandemic, parliament has rapidly introduced the Coronavirus Act 2020, which received Royal Assent on 25 March 2020.
The Act, which in the words of Health Secretary, Matt Hancock, takes ‘extraordinary measures’ has been introduced with three primary aims:
- To support the slowing of the spread of the virus;
- To reduce the administrative and resourcing pressure on the health and social care sector; and
- To increase public sector staffing levels.
The legislation could be in place for up to 2 years but its necessity will be reviewed every 6 months.
Impact on Duties under the Care Act 2014
The Care Act 2014 places a duty on local authorities in relation to the assessment of an individual’s care needs, as well as the support needs of carers and addresses subsequent eligibility for publicly funded assistance. However, the Coronavirus Act now considerably alters the scope of those duties. In particular, local authorities will now only have a mandatory obligation to meet a person’s care and support needs if failing to do so would be a breach of that person’s human rights.
In theory, the Act could be used to reduce or withdraw existing publicly funded care packages but the Health Secretary has cautioned that its powers should only be used ‘when strictly necessary’.
The following sets out aspects of the Care Act and the theoretical changes that the Coronavirus Act allows for:
Assessment – The Care Act has a low threshold for assessment and provides that anyone who ‘may’ be in need of care and support is entitled to be assessed. However, the Coronavirus Act suspends this duty and gives local authorities the discretion as to whether or not an assessment can and should be undertaken.
Financial Eligibility – Where an assessment of need has taken place, the Care Act includes a positive obligation on local authorities to conduct a financial assessment to establish whether or not a person is entitled to have their care and support provision funded. The Coronavirus Act has also suspended this duty but local authorities will need to continue to conduct this assessment if they have undertaken a care assessment and want to be able to charge an individual for all or part of their care.
Care Planning – The Care Act requires local authorities to produce care plans, where an individual has been assessed and has eligible needs, for the purpose of setting out what care and support will be put in place. It further requires those care plans to be reviewed periodically or following receipt of a reasonable request from those to whom the care plan relates. The Coronavirus Act suspends these duties but it can reasonably be assumed that, unless a person has been informed otherwise, existing care plans will remain in place.
NHS Continuing Healthcare – Where a person has ongoing significant physical and/or mental health needs and, having considered those needs, the vast majority of the care required is focused on addressing and/or preventing health needs, NHS continuing healthcare may be available. In order for eligibility for NHS continuing health care to be determined, an assessment needs to be carried out by the relevant NHS clinical commissioning group. However, the Coronavirus Act again suspends the duty of assessment. While this does not mean that all clinical commissioning groups will necessarily put a hold on all further assessments, it does mean that they can, should it be crucial to divert resources elsewhere.
At this early stage, it remains to be seen how different public bodies will respond to the new legislation but it is clear from the above that the impact on those public bodies and the individuals they support could be stark and wide ranging.
Impact on the Mental Capacity Act 2005
The Mental Capacity Act 2005 came into force in 2007 and is designed to safeguard the rights of vulnerable individuals who are unable to make certain decisions for themselves. This group, of course, includes people who are at greatest risk during the Covid-19 pandemic.
The Coronavirus Act does not amend the Mental Capacity Act or the process contained within it for safeguarding those who are considered to be deprived of their liberty. However, during the course of the second reading of the Coronavirus Bill, Lord Bethell, for the government, informed the House of Lords:
‘We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus. Therefore, we have decided not to alter deprivation of liberty safeguards in primary legislation. However, we think that we can achieve significant improvement to the process through emergency guidance. That will include making clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment’.
It is hoped that emergency guidance will be available shortly. In the meantime, an NHS document titled ‘Covid-19 Hospital Discharge Service Requirements’ reinforces that the Mental Capacity Act should continue to apply but suggests that the application of the deprivation of liberty safeguards should not delay hospital discharge.
NHS & Adult Social Care Resourcing
The Coronavirus Act allows NHS and social care professionals who have retired in the last 3 years to return to work to bolster staffing numbers. The Act enables care regulators to ‘emergency register suitable people as regulated healthcare professionals, such as nurses, midwives or paramedics. This might include (but will not be limited to) recently retired professionals and students who are near the end of their training’. In addition, the Act also allows regulators to temporarily add former social workers back on their registers.
Practically, regulators will be able to use this power as they consider appropriate. They will be in a position to automatically register professionals whose registration has lapsed or who may have recently retired, as well as those in the final year of their studies.
In addition, the Act aims to increase frontline capacity by reducing administrative burden. In general terms, administrative tasks will be reduced and non-urgent services or treatment delayed.
One specific example provided for in the Act is the reduction in the number of doctors required to authorise a person’s detention under the Mental Health Act 1983. While previously two approved doctors were required to agree in this regard, only one opinion is now needed.
Finally, and distinctly from the Coronavirus Act, the CQC suspended routine inspections as at 16 March 2020. The CQC has advised that it will continue to monitor regulated care providers ‘using data and information’ and will still visit if ‘there’s a risk of harm or abuse’.
Should you have any questions about the information provided above and its application to you or your organisation, please do not hesitate to contact Katie Webber or call 0117 321 8098.