Coronavirus (COVID-19)—changes to the Care Act 2014

06/04/2020

Local Government analysis: Siân Davies, barrister at 39 Essex Chambers, discusses the Care Act easements, provided for under the Coronavirus Act 2020. She examines the guidance for local authorities on when it is appropriate to use the Care Act easements, emphasises the information that should be given to those being assessed and debates what changes to safeguarding policies may occur during the relaxation period. She also analyses the relationship between the Care Act easements guidance and the Hospital Discharge Service Requirements.

What is the guidance for Local Authorities on deciding when to exercise the Care Act easements?

It is important to note that the easements do not apply automatically. Care Act easements: guidance for local authorities (the guidance), issued by the Department for Health and Social Care on 31 March 2020, requires that, before the easements are applied, there must be a decision made by a local authority Director of Adult Social Care 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 (as they stand prior to amendment by the Coronavirus Act)' and that '…to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life' (see section 6 of the guidance).

There is a decision-making structure contained in the guidance which makes clear that there should not be a wholesale disregard for the Care Act 2014 (CA 2014) duties, and that any decision to rely on the new statutory provisions should be made carefully, in consultation with other relevant bodies and people, and in a staged manner so that changes are only made incrementally and following a decision that they are truly necessary. It is very much not an 'all or nothing' approach.

These decision-making processes should be recorded. The guidance states that:

'It is important that any decisions made in relation to Care Act easements are informed by discussions with local partners, in particular local senior NHS leadership. Health and Wellbeing Boards should also be informed about a decision to start operating under the easements. Recording by Local Authorities (LAs) remains a priority and will assist them to ensure accountability and provide evidence for the thought processes behind the decisions they will be making.'

The new guidance also makes reference to the recently published ethical framework for adult social care which identifies the following important values and principles:

•  respect
• reasonableness
• minimising harm
• inclusiveness
• accountability
• flexibility
• proportionality
• community

What guidance is given for undertaking care needs assessments?

Annex B to the guidance addresses the issue of whether and if so in what form care and support needs assessments are to be undertaken. Key principles, which apply equally to service user and carer assessments are:

• the starting point is full compliance with CA 2014 duties. The easements will only apply when it is no longer possible for the local authority to carry out its pre-amendment CA 2014 duties in full
• LAs will remain under a duty to meet needs where failure to do so would breach an individual's human rights under the European Convention on Human Rights (ECHR). These include, for example, the right to life under Article 2 of the ECHR, the right to freedom from inhuman and degrading treatment under Article 3 of the ECHR and the right to private and family life under Article 8 of the ECHR. Local authorities conducting these human rights assessments will need to have an understanding of the nature of those rights and the case law surrounding them
• LAs should still assess people's social care and support needs throughout this period and should make a written record of these assessments
• Principal Social Workers should ensure that proportionate professional recording is maintained and may consider a single alternate document for local use. This should direct social workers to consider whether there would be a human rights breach in the event that services are not provided. The format is unlikely to be the same as the current care and support needs assessment, but some of the information which is contained within a care and support needs assessment will be relevant the question of whether support is necessary to prevent a breach of human rights
• recording should ensure that there is clear evidence as to decision making, the application of professional judgment, application of the Ethical Framework for Adult Social Care, and demonstrate consideration of ECHR rights
• face to face assessments may not be necessary or possible. Alternative means of assessing should be considered, but these must take account of the adult's mental capacity to participate and to make relevant decisions, and also the service user's communication needs

What information should be given to those being assessed?

According to the guidance, the information a LA is required to give to a service user is that:

• at some future point, their needs may be assessed (or reassessed) and alternative services may be arranged
• the current context is extremely unusual and that arrangements may be temporary and change when this period is over
• in the future, a view will be taken on whether their needs are eligible under CA 2014 and that this may result in needs no longer being met
• there must be a clear mechanism for an adult or carer to raise a concern that a decision or care provision breaches rights under the ECHR. Note that the onus is not, however, on the service user to raise human rights—local authorities are under Human Rights Act 1998 duties to consider proactively whether such a breach would result from lack of service provision
• complaints procedures are unaffected—a complaint can be made under the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, SI 2009/309
• there may be a charge for services applied in future, and this may retrospectively cover services provided before the financial assessment was conducted (see below)

What will happen in practice regarding assessment for needs and financial assessment?

The easements enable LAs to meet people's care and support needs without a financial assessment being carried out—the financial assessment is deferred, but the service user must be made aware that it will be conducted later and that a charge may then be made for services provided before the financial assessment was conducted. A later assessment must comply with the statutory guidance on charging (see 8.2–9 of the statutory guidance).

Information as to likely charges should be considered by the LA, including indicative charges and signposting to financial advice. At the very least, a service user must be informed that charges may be made in the future following a financial assessment (and the authority should record that this information has been provided). The uncertainty around future charges has the potential to inhibit those with needs from accepting services and this is a consideration relevant to a decision as to what information is provided.

The emergency provisions do not change existing guidance on, for instance, complaints, deliberate deprivation of assets, administrative fees and top-ups. Deferred payment agreements similarly remain unaffected and available once financial assessment is completed.

How will prioritisation work? What happens with reviews?

The guidance does not give any advice about prioritisation, saying that local areas should make their own decisions. It is premised on an expectation that LAs will already have a good understanding of the needs of the individuals they support:

'Most Local Authorities will have mapped all existing known packages for complexity and need and should where possible have also mapped the care and support needs of those that self-fund.

It is important that mapping at this stage considers the complexity, risk and level of need within the care package and not just the current delivery. This should allow for a better understanding of the risk should there be an impact on care delivery. This includes considering unpaid carers. This will ensure Local Authority knowledge of an individual informs any prioritisation work needed, should the situation require it. …

Local Authorities should take into account all elements of a person's life that may impact on their needs and their personal circumstances. These circumstances can include social issues such as domestic abuse, financial issues, and the vital support of unpaid carers which may not be appropriate or sustainable as a single support in this current climate.

Local Authorities should also understand what resources, assets/offers the person has at their disposal – including knowledge of and access to forms of community and neighbourhood support.'

What changes to safeguarding policies will occur during relaxation periods?

This is addressed in section 4 of the guidance. It is made clear that duties under CA 2014, s 42 (safeguarding) have not been suspended. What might then follow in discharge of that duty may now be different, but must still be driven by compliance with the ECHR.

Further, duties in the Mental Capacity Act 2005 (MCA 2005) relating to Deprivation of Liberty Safeguards (DoLS) remain in place, duties under the Equality Act 2010 (including the Public Sector Equality Duty) are unaffected (and are potentially relevant to decisions about care and support in cases where a person has a protected characteristic). Advice and information duties under CA 2014 are unaffected, and potentially significant during this emergency period. The guidance states, and common sense would dictate, that while local authorities are subject to additional calls upon their resources such that they may not be able to meet eligible needs, they should ensure that they have up to date information about partner agencies and the voluntary sector in order to support service users in accessing help from other sources.

The publicised 750,000 volunteer responders who have signed up following an appeal by the NHS are offering services such as patient transport, collecting prescriptions or shopping, or offering a phone chat to an isolated person—these are largely social care functions so it is reasonable to expect that LAs will have good co-operation with the NHS and with the voluntary sector to mitigate the effect of any application of the Care Act easements.

How should this guidance be read in conjunction with Coronavirus (COVID 19) Hospital Discharge Service Requirements?

The purpose of the Hospital Discharge Service Requirements (the requirements) is to move patients on from acute and community hospitals as soon as it is no longer necessary for the patient to be in hospital. Continuing health care assessments are suspended for the duration of the emergency period. In order to facilitate this, the requirements state that:

'A lead professional or multidisciplinary team, suitable for the level of care needs, will visit patients at home on the day of discharge or the day after to arrange what support is needed in the home environment and rapidly arrange for that to be put in place. If care support is needed on the day of discharge from hospital, this will have been arranged prior to the patient leaving the hospital site, by a care coordinator.

During the COVID-19 pandemic, all of the above support will be paid for by the NHS, to ensure patients move on from their acute hospital stay as quickly as possible.'

Chapter 5 of the requirements discusses the specific role of LAs and emphasises the need for collaborative working between NHS and social care, with hospital social workers being redeployed to community settings, assessments of need being dispensed with prior to service provision and funding panels suspended. The intention is to remove all obstacles to patients being discharged into the community, with additional funding to prevent the need for resources to operate as a bar to discharge.

The effect of this may be to ease the social care burden on local authorities, as the NHS will be meeting the cost of what would normally be regarded as social care (or would otherwise be the subject of extensive assessment and potential dispute as to whether a need is health or social care, and if social care, whether it is an appropriate use of local authority resources). This burden being assumed by the NHS is a factor which local authorities will need to take into account in making a decision to implement the easements referred to above.

Importantly, and in line with the Care Act easements, the guidance emphasises that duties under MCA 2005 still apply during this period. So, if a person is suspected to lack mental capacity to make the decision about residence and care and treatment, a capacity assessment should be carried out before a decision about hospital discharge is made. Where the person is assessed to lack capacity and a decision needs to be made, there must be a best interests decision made under the MCA 2005, s 4 framework. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards still apply, but, according to the guidance, these should not delay discharge. In practice, this seems difficult—assessments of capacity and best interests assessment often need to be face to face—which is difficult in current circumstances.

Care homes report concerns about patients being discharged with the infection or having been exposed to it in hospital, because of the serious implications for other residents and staff.

Interviewed by Barbora Kozusnikova Originally written for LexisNexis UK