The Coronavirus Act – What has changed for the mental capacity sector?
Covered here: the COVID-19 pandemic, the Coronavirus Bill and the Mental Health Act 1983, Mental Capacity Act 2005 and Care Act 2014
The Coronavirus Act 2020 became law on 26 March 2020.
This Act makes amendments to the Mental Health Act and Care Act but not to the MCA 2005 or to the DOLS process. The subsidiary legislation and guidance will provide detail and will likely have impacting information.
Care Act Schedule 12, part 1 and 2 S 14-16 - Commenced on 31 March 2020
The duty upon local authorities (LA) to assess and meet assessed eligible needs of adults and carer’s will simply be powers (This means that the authority can exercise that power but is not under a duty to do so). This, if implemented, will affect s 9 (duty to assess), s 13 (determination of eligibility), s 17 (assessment of financial resources), s 18 (duty to meet needs for care and support – save for- see below), ss24, 25 (care and support plans), s 27 (reviews), and ss58-65 (carers).
The caveat to this recognizes that there is still in place a raft of legislation imposing duties upon statutory bodies including the Human Rights Act. This caveat states that the power becomes a duty if a failure to provide care and/or support would give rise to a breach of an individual’s human rights.
In Wales a duty only arises where a failure to do so would mean that the person may be experiencing or at risk of abuse or neglect.
Paragraph 3(1) of Schedule 3 to the CA 2014 is amended so that an LA, having received an assessment notice from the NHS body responsible for the patient, is not required to carry out a needs or carers’ assessment before informing the NHS body whether the adult or carer has needs for care and support and how the LA plans to meet those needs.
Schedule 12 para 15
Transition to adult care and support
LAs are not required to comply with any duties imposed by:
Section 2A(2) to (4) or (6) of the Chronically Sick and Disabled Persons Act 1970 which deal with welfare services for children in transition to adult care and support.
Section 17ZH(2) to (4) or (6) of the Children Act 1989 (services provided under section 17 of the Children Act 1989 for children in transition to adult care and support).
The duty on LAs to carry out financial assessments under section 17 of the CA 2014, is suspended (paragraph 3(1)), The LA is not permitted to make a charge under section 14 of CA 2014 for meeting any needs under sections 18, 19, 20 or 62 of the CA 2014 during the emergency period without having carried out an assessment under section 17 of the CA 2014. This applies whether or not the LA has made a determination of eligibility under section 13 of the CA 2014.
If a LA has not charged an individual for their care during the period for which the measures are in place, they will be able to do so retrospectively after the conclusion of the period for which the duties are suspended under the CVA 2020, subject to a financial assessment.
LAs are not required to comply with any duties imposed by:
The Care and Support and After-care (Choice of Accommodation) Regulations 2014 (SI 2014/2670) in so far as those provisions relate to cases where an adult expresses a preference for particular accommodation.
Prevent and mitigate loss or damage to property of adults being cared for away from home under section 47(2) of the CA 2014.
Schedules 1 and 5 Commencement on the day the Act came into force
Allows for “temporary registration in emergencies” of individual or groups of nurses, health professionals (including OTs, SALTs and PTs) and social workers, “if the Registrar considers that the group is comprised of persons who are of a type who may reasonably be considered fit, proper and suitably experienced persons to be registered as members of the profession in question with regard to the emergency”.
Health - Section 14 Commencement on day the Act came into force
- Trusts are not required to ensure that any assessment of CHC, following the National Framework is completed and/or consultation with social services prior to discharge from hospital
- When issuing an assessment notice, trusts are not required to include a statement that there has been consideration of CHC eligibility
- CCGs are not under any duty to assess patients for eligibility for CHC or FNC
- If a choice is made to assess a person for eligibility for CHC then the duty to consider FNC also applies
- The suspension of these duties applies in relation to duties arising before the act comes into force
Mental health and mental capacity - Schedule 8 para 3, Part 2.
In respect of applications for compulsory admission to hospital for assessment or treatment, allowing for an application to be made by single registered medical practitioner, if it is considered that complying with the existing requirement (requiring two medical practitioners to make an application) is impractical or would involve undesirable delay (does not apply to s 4 MHA)
Schedule 8 , Paragraph 4, Part 2
In respect of applications for compulsory admission of patients already in hospital, allowing any registered medical practitioner or approved clinician to furnish a written report for the purposes of section 5(2) of the MHA 1983 (concerning the detention of patient in hospital pending application for admission), if it appears that complying with the current requirement that the report be furnished by the practitioner or clinicians in charge of treatment of the patient is impractical or would involve undesirable delay.
The period in which a patient can be detained following such a report (as covered by section 5(2) of the MHA 1983) is increased from 72 hours to 120 hours. The period for which patient can be detained pending a report from a practitioner or clinician (under section 5(4)) is increased from six hours to 12.
Schedule 8 para 8 part 2
Provisions which temporarily amend current provisions in respect of how defendants and prisoners with a mental health condition are dealt with. For example, modifying time limits for detention and movement between court, prison and hospital.
Schedule 8 para 11, part 2
Providing for an alternative constitution of the Mental Health Review Tribunal for Wales, if the required constitution would be considered impractical or would involve undesirable delay.
Education - Schedule 16-17 para 4 S 37-38
The Secretary of State can temporarily close or restrict attendance at education or childcare settings, the Secretary of State can authorise an LA to exercise any of its functions relating to temporary closure orders of educational institutions or childcare settings.
Schedule 17
Temporary continuity directions
The duty of LAs to arrange for exceptional provision of education (under section 19(1) of the EA 1996) does not apply to the extent that the potential failure of any child to receive suitable education is attributable to a temporary closure direction.
Schedule 17 Para 5(6) - Not yet in effect
Any duty imposed on a person by section 42 (Children and Family Act 2014) is to be treated as discharged if the person has used reasonable endeavours to discharge the duty.
This will only come into effect if the Secretary of State serves notice. The notice period must not exceed one month.
Courts and Tribunals - Schedule 23 S 23-57
This allows for the use of technology, either in video or audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video or audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing.
Hospital Discharge
NHS’s COVID-19 (Hospital Discharge Service Requirements)
- Aim to discharge patients as soon as possible and clinically safe;
- Acute and community hospitals must discharge all patients as soon as they are clinically safe to do so. Transfer from the ward should happen within one hour of that decision being made to a designated discharge area. Discharge from hospital should happen as soon after that as possible, normally within 2 hours.
- Local Authorities do not have to undertake financial and eligibility assessments for people who are being discharged as part of the enhanced hospital discharge service.
- Dispenses with NHS CHC assessments
- NHS to fund cost of new / extended out-of-hospital health and social care support
- 4 pathways determine route of discharge from simple with no input from health/social care to home not being an option at point of discharge
Providers of community health services will lead on pathways 1-3 as they will play a lead role in assessing and providing care for patients once they are home.
The MCA 2005 continues to apply.
“If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge”.
Mental Health Act
http://www.legislation.gov.uk/ukpga/1983/20/contents
Mental Health Tribunal, ‘First-tier Tribunal (Mental Health) update’ (2/4/20)
Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient’s number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call. (4)The MHA must submit the reports no later than 24 hours before the hearing, these can be emailed to
MHTSection2Reports@justice.gov.uk
(5)A nearest relative can join the telephone hearing and they will sent a form to fill in which will be sent to them. They must provide a telephone number so the Judge can call them and join them to the hearing.
Regulations
The Health Protection (Coronavirus Restrictions) Regulations 2020
This makes it illegal for:
- A wide range of shops and businesses to remain open (Regs 4, 5)
- A person to leave their house without a reasonable excuse (Reg 6 (2) (unless homeless) (Reg 6)
- A person to take part in public gatherings of more than 2 people subject to exceptions. (Reg 7)
It defines vulnerable persons for the purpose of the Act:
- Any person over 70
- Any person under 70 with an underlying health condition including but not limited to those listed in Schedule 1 (chronic long term respiratory diseases, chronic heart disease, chronic kidney disease, chronic liver disease; chronic neurological conditions such as Parkinson’s, motor neurone, multiple sclerosis, learning disability or cerebral palsy, diabetes, problems with the spleen, weakened immune system due to HIV, ADIS or medicines such as steroid tablets or chemotherapy, being seriously overweight with a BMI of 40 or above)
- Any person who is pregnant.
Guidance
Education and Children
http://www.legislation.gov.uk/ukpga/2014/6/contents/enacted
This provides a suite of documents for education providers
https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-vulnerable-children-and-young-people
S42 Children and Families Act: Duty to secure special educational provision and health care provision in accordance with EHCP
This duty is still in place until the Secretary of State serves notice
Guidance on Vulnerable Children
Vulnerable children include those who have a social worker and those children and young people up to the age of 25 with education, health and care (EHC) plans. The definition could include a child in need. All children with a disability fall in this category.
There is an expectation that vulnerable children who have a social worker will attend an education setting, so long as they do not have underlying health conditions that put them at severe risk.
Those with an EHC plan should be risk-assessed by their school or college in consultation with the local authority (LA) and parents, to decide whether they need to continue to be offered a school or college place in order to meet their needs, or whether they can safely have their needs met at home. This could include, if necessary, carers, therapists or clinicians visiting the home to provide any essential service.
Local authorities will need to consider a number of different risks to each individual, including:
the potential health risks to the individual from COVID-19, bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required the risk to the individual if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting.
The ability of the individual’s parents or home to ensure their health and care needs can be met safely the potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered.
Useful Guidance
MHCS Coronavirus Guidance
MHCS Coronavirus Update
E-cigarette Policy Guidance
Guidance on Learning Disability and Autism
CQC Coronavirus procedure for SOAD’s
Mental Capacity Act
http://www.legislation.gov.uk/ukpga/2005/9/contents
The Coronavirus Act does not amend the Mental Capacity Act but guidance is expected.
Coronavirus (COVID-19) Office of the Public Guardian response
https://www.gov.uk/guidance/coronavirus-covid-19-office-of-the-public-guardian-response
Guidance on Social distancing and ‘P’ in the Community
Responding to COVID-19: the ethical framework for adult social care:
It is aimed at all professionals within health and social care.
This sets out eight broad principles when organising and delivering social care for adults.
| Respect | Requires that where a person may lack capacity a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf. Provide people with the opportunity to express their views on matters that affect their care, support and treatment, Respect people’s personal choices as much as possible, while considering and communicating implications for the present and future .Keep people as informed as possible of what is happening or what is expected to happen in any given circumstance.
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| Reasonableness
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This principle is defined as ensuring that decisions are rational, fair, practical, and grounded in appropriate processes, available evidence and a clear justification
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| Minimising harm
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Reducing the amount of physical, psychological, social and economic harm that the outbreak might cause to individuals and communities. This includes enabling care workers and volunteers to make informed decisions which support vulnerable people |
| Inclusiveness
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Ensuring that people are given a fair opportunity to understand situations, be included in decisions that affect them, and offer their views and challenge. In turn, decisions and actions should aim to minimise inequalities as much as possible.
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| Accountability
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Emphasises the need for those taking decisions to be transparent about how and which decisions need to be made and on what basis; and prepared to justify which decisions are made and why, ensuring that appropriate records are being kept. This includes having locally-agreed processes in place to handle ethical challenges during and in the aftermath of the outbreak
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| Flexibility
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Ensure that plans and policy have room for flexibility and innovation where necessary provide people with as much opportunity as possible to challenge decisions that affect them in the time that is available
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| Proportionality
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Providing support that is proportional to needs and abilities of people, communities and staff, and the benefits and risks that are identified through decision-making processes.
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| Community | Emphasises the importance of community cohesion and working together.
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Guidance for Local Authorities on Care Act Easements
This sets out the basis on which the LA will exercise their amended powers
A Local Authority should only take a decision to begin exercising the Care Act easements when 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.
Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. However, they will still be expected to respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided.
Duties in Care Act to promote wellbeing and duties relating to safeguarding adults at risk remain in place.
Duties imposed under the Equality Act 2010 also remain, including duties to make reasonable adjustments, the Public Sector Equality Duty and duties towards people with protected characteristics. These should underpin any decisions made with regard to the care and support someone receives during this period.
Local Authorities will be expected to observe the Ethical Framework for Adult Social Care. In particular it should underpin challenging decisions about the prioritisation of resources where they are most needed.
There are also a number of useful links including:
Information governance advice for health and care professionals
Advice for health and care professionals
https://www.gov.uk/government/collections/wuhan-novel-coronavirus
Advice for the social care sector
https://www.scie.org.uk/care-providers/coronavirus-covid-19
Guidance for Residential Care, Supported living and Home care
Steps care home providers can take to maintain services
What to do if a resident has symptoms of COVID-19
Government support
Steps LAs can take to support care home provision
Court of Protection Guidance
Visits to P (13 March 2020)
Additional Guidance for Judges and Practitioners arising from Covid-19 (18 March 2020)
Further Guidance for Judges and Practitioners in the Court of Protection arising from Covid-19 (24 March 2020)
Remote Access to the Court of Protection Guidance (31 March 2020)
https://www.judiciary.uk/wp-content/uploads/2020/04/20200331-Court-of-Protection-Remote-Hearings.pdf
Regulations
The Health Protection (Coronavirus Restrictions) Regulations 2020
This makes it illegal for:
- A wide range of shops and businesses to remain open (Regs 4, 5)
- A person to leave their house without a reasonable excuse (Reg 6 (2) (unless homeless) (Reg 6)
- A person to take part in public gatherings of more than 2 people subject to exceptions. (Reg 7)
Vulnerable persons:
- Any person over 70
- Any person under 70 with an underlying health condition including but not limited to those listed in Schedule 1 (chronic long term respiratory diseases, chronic heart disease, chronic kidney disease, chronic liver disease; chronic neurological conditions such as Parkinson’s, motor neurone, multiple sclerosis, learning disability or cerebral palsy, diabetes, problems with the spleen, weakened immune system due to HIV, ADIS or medicines such as steroid tablets or chemotherapy, being seriously overweight with a BMI of 40 or above)
- Any person who is pregnant.
Areas currently falling outside the CV legislation
These include:
Care Act 2014
- Safeguarding duty Care Act s 42
- Wellbeing duty under the Care Act (s1)
Human Rights Act
http://www.legislation.gov.uk/ukpga/1998/42/contents
- Article 2 (Positive obligation -Right to life). This is an absolute duty but also an operational duty on public bodies to – take steps to safeguard the lives of those within its jurisdiction.
Osman v UK ; Rabone and anor v Pennine Care NHS Foundation Trust
o When the State knows, or ought to know, of a real and immediate risk to the life of an identified individual
o Vulnerability of individual /assumption of responsibility by the state
o Failure to take steps within their powers, which, judged reasonably, might have been expected to avoid that risk
- Article 3 ( Inhumane or degrading treatment)
- Article 5 (Right to liberty)
- Article 6 ( Right to a fair trial)
- Article 8 (Family life- proportionate interference )
- Article 14 ( Discrimination)
Equality Act 2010
http://www.legislation.gov.uk/ukpga/2010/15/contents
Public Sector Equality Duty ( s149)
Q&A
Mental Health Casework Section, ‘Q and A for healthcare professionals and MHCS staff’ (30/3/20)
https://www.39essex.com/rapid-response-guidance-note-covid-19-social-distancing-and-mental-capacity/
About the author
This guide was prepared by Karen Jackson, associate in our Mental Capacity team.
