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BASW England briefing paper on Coronavirus Bill

Members response

BASW recognises that Covid-19 presents an unprecedented threat to all the communities that live in the UK.

This briefing paper is a compilation of responses from BASW members and stakeholders including those who work with children and families; adults; people with mental health issues and students and newly qualified social workers (NQSW’s).  This briefing outlines their views and concerns on the Covid-19 outbreak and the implications of the Coronavirus Bill.

Many of our members are in direct practice and as residents of the UK will be expected to adhere to implement and manage many aspects of the Bill, including supporting vulnerable children, families, disabled people, people with mental health challenges and vulnerable adults. BASW England is therefore  uniquely positioned to comment on the impact of the Coronavirus Bill.

BASW England acknowledges the speed with which Parliamentarians are having have had to consider the Bill and therefore restricts itself to the most salient issues – please cross reference with BASW’s previous UK briefing update.

BASW supports the decision that has been taken that social workers and Approved Mental Health Professionals (AMHP’s) who are not social workers are to be regarded as ‘essential workers’  ‘critical  workers’ (formerly known as ‘key workers’) and further, would expect this to include social work assistants and family support workers - as well as other members of the social care workforce.

Social Work Registration

At this time of unprecedented challenge BASW England welcomes the opportunity for social workers with recent relevant experience to re-enter the workforce.

However, it It is essential the Coronavirus Bill is not used as an opportunity to compromise the quality and professional regulatory standards of social workers and the thus social work services. Encouraging those back into work who were recently registered is welcomed as a temporary measure in the current crisis.  The Coronavirus Bill (very shortly to become law) allows Social Work England (SWE) to re-calibrate the criteria for social work registration. Clearly the detail of the criteria and associated processes will be central to the success of this endeavour. BASW will work closely with SWE to ensure this is undertaken swiftly, appropriately and effectively.

Education and practice placements

The vast majority of social work students continue to be educated through a university course, with practice placements. Over the last two weeks universities have closed due to the Coronavirus. While some aspects of social work education and qualification can be undertaken remotely, key aspects of educating individuals to be the social workers of tomorrow cannot be taught remotely.

BASW has had many queries from social work students and newly qualified social workers not yet in employment.  We will be working with employers and APSW and JSWEC to answer their queries and concerns.

It is essential for there to be fairness and equitability with respect to students at different points in their studies/placements/post qualification experience (e.g. AYSE).  Close working with Higher Education Institutes (HEI's) and agencies providing placements will be essential.

Student social workers want to help in any way they can.  Most feel that it is invaluable experience which they have been trained for and believe they are can contribute to the national effort.  However, clarity and support is quickly needed for those whose studies/placements have prematurely ended or if they have been advised to self-isolate.

Social Work England’s regulations on annual training requirements (CPD) should be relaxed to prevent social workers’ registration lapsing.

Comments on the proposed changes to the Mental Health Act 1983 & 2007

Implications for Approved Mental Health Professional (AMHP) service

If the Schedule of the proposed Act relating to the Mental Health Act in England and Wales were to be implemented, amongst other provisions, this would mean on one s12 approved doctor would be required for mental health act assessments and for s2 and s3 admissions the periods whereby patients can be detained under holding powers (and some parts of the criminal sections of the Act) would be extended.  These and other changes proposed are a serious erosion of the human rights of mental health service users.

BASW England acknowledges the thinking behind this is to relieve pressure on hard pressed services, particularly the medical profession. We note that while it might speed up assessments, it will not relieve pressure on Approved Mental Health Professionals (AMHP’s) the vast majority of whom are social workers and who make the decision about whether or not to detain a person under the Mental Health Act and so will continue to be needed for all assessments. They are in short supply across the country.

It is not clear under what circumstances these provisions to change the Mental Health Act would be commenced.

The amendments focus mainly on the likely shortage of medical input. They do not cover any issues that may arise as a result of a shortage of AMHP’s, or of increasing difficulties in obtaining police assistance, or transporting patients to hospital, when it is likely that ambulances will be needed for emergencies related to the epidemic.

These arrangements also fail to appreciate that AMHP’s, like other social workers & social care professionals, will need advice and access to personal protective equipment like gloves & masks as they will be interviewing people and providing direct care to vulnerable adults.

Health workers in hospitals may be in the frontline providing care for people once unwell, but social workers and social care workers are the frontline in the community trying to keep people well and out of hospital.

It also must not be forgotten that while doctors are crucial to the decision-making in Mental Health Act work, the person who decides whether or not to detain a person is the AMHP.  Without the AMHP vital protections are lost, and the whole admission process stalls.  Not only do AMHPs make sure that a person is detained, only if absolutely necessary, but they co-ordinate the whole assessment process, including the logistics of arranging police and ambulance transport, and ensuring the person is conveyed to hospital in a humane manner.

It seems the assumption in the Bill is that staffing problems will only relate to medical staff and they ignore while ignoring the fact that the AMHP workforce is already chronically understaffed, with the possible (or probable) further reduction in numbers of AMHP’s due to illness or self-isolation.

BASW England would welcome advice and guidance on:

  • Problems that already occur due to lack of local acute mental health beds, leading to patients being admitted sometimes hundreds of miles away from their home. Apart from the dilemmas this causes when non-essential travel is being restricted, the home area’s legal obligation to follow up and reassess for s3 if needed will become more problematic. In such instances, would use of Skype interviews be considered interviewing in a ‘suitable manner’?
  • The circumstances in which Skype interviews might be a suitable option? For example, when reviewing someone on s136 where a community plan can be used, could this type of assessment be conducted by Skype to reduce delays in the process?
  • Further definition on the meaning of ‘impractical’ and ‘undesirable delay’ when related to the AMHPs decision to only use one s12 doctor?
  • The proper use of, and lack of access to personal protective equipment for AMHPs, social workers & social care workers

 

More emphasise is needed in maintaining the protections that the Mental Health Act provides - not just the ability to loosen those protections when necessary.

These issues need to be addressed immediately to humanise the changes to mental health provisions.

Comments on the proposed changes to The Care Act 2014 (Social work with working age adults with disabling conditions and older people)

There appears to be a near wholesale revoking of the Care Act.  Unfortunately, there is a lot to be dissatisfied with and there are better ways of achieving the desired objectives set out in the document What the Coronavirus Bill will do guidance (dated 17/03/20). These proposals will represent a significant change to the way that needs are met and BASW is willing to assist the Department of Health & Social Care in developing the detailed guidance that will be needed.

BASW England stand ready to work with colleagues in the adult social care sector and public law experts to assist Government in drafting more suitable legislative changes and developing guidance, that support social workers in undertaking their vital role in meeting the essential care and support needs of vulnerable adults and their carers.

BASW England:

1. Strongly supports changes "to enable local authorities to prioritise the services they offer in order to ensure the most urgent and serious care needs are met, even if this means not meeting everyone’s assessed needs in full or delaying some assessments" as proposed in the earlier document.

2. Is concerned that the significant level of legislative change proposed in the Bill is likely to delay actions, because of the scale of the changes and the resources it will require to implement them. New administrative systems will be required, and social workers and other staff will require training in applying these systems and adapting their ways of working.

3. Believes that there are alternative ways of achieving the objective of reducing the “operational burden so local authorities can prioritise the service they offer in order to ensure the most urgent and serious care needs are met” (in the ‘Explanatory Notes’), which would be less onerous to implement. For example, we note that some public law specialists have proposed:

"Retaining the relevant social care duties but amending their application so that local authorities are only required to implement them as far as reasonably practicable. Where the draft Bill says the local authority does not have to comply with a duty, the new drafting would say that the local authority has to comply with the duty only to the extent reasonably practicable.” https://www.11kbw.com/knowledge-events/news/the-coronavirus-bill-schedule-11/ .

4. Is aware that some legal experts have expressed reservations about the new threshold of “breach an individual’s human rights”.  We would add that social workers are not experienced in applying human rights law in the specific way that is envisaged and this would involve a steep learning curve. The Care Act 2014 operationalises the principles of human rights into the concept of wellbeing and provides a well understood means of social workers applying professional judgment to assessing and meeting needs. It is noted that section 1 of the Care Act remains in place and therefore there will still be a duty to promote individual wellbeing and to prevent needs for care and support. Therefore, we think it would more straightforward to retain the focus on wellbeing and not introduce this new requirement to “meet those needs for the purpose of avoiding a breach of the adult’s Convention rights”.

5. Advocates an approach that involves adjusting the existing system rather than wholesale change, and make the following suggestions:

a. Local authorities currently have the power under the Care Act 2014 to meet urgent needs without having to undertake an assessment, as set out in section 19 (3), but this currently has to be followed up by a full assessment. The requirement to subsequently complete a full assessment could be modified by setting out the circumstances when this may or may not be applied and how it could be delayed.

b. Further guidance could be developed for the category of “urgent need”.  It is not defined in the Care Act 2014 or the statutory guidance, although the latter gives an example of where a local authority should provide an immediate response and meet the individual’s care and support need.  This is notes as: "where an individual’s condition deteriorates rapidly or they have an accident, they will need a swift response to ensure their needs are met.”

c. The proposal for a category of “serious care needs” to complement the existing category of urgent need. It is possible to amend existing assessment and eligibility determination processes to ensure that this is the focus of assessment and care planning.

Comments on the proposed changes to children in need and families

The main amendments relate to the Children Act 1989, Sec 17 requirements regarding the transition of children with disabilities to adult services. BASW opposes the proposed change to the 1989 Children Act to disapply the duty of LAs to support the transition of children with disabilities to adult care.   This move is not necessary as there are already provisions for LAs to exercise discretion on how to interpret the legislation, although guidance would be helpful.

No other changes are proposed to the direct legislation relating to children, but we anticipate there will be new challenges in undertaking assessments for children in need and their families, for child protection assessments and plans. and for those providing a service to children and young people who are looked after and care leavers.

Children are also impacted on by proposed changes to adult care and health services. BASW has heard the extreme concern of organisations representing people who use services and carers. The proposals to change the legal rights to assessment (and therefore the right to services) for adults with a disability, vulnerable elderly, children who act as carers, and children with a disability should be clearly regarded as an emergency measure since it will have the effect of seriously reversing hard-won rights won over the last fifty or so years. BASW proposes that these hard-won rights and provisions for access to social care need to be left in law and this aspect of the legislation should be unamended. Local authorities would then continue to prioritise cases, and services - as they do at present.

We particularly urge that the requirement in the present legislation and guidance of the 2014 Care Act to take account of the special needs of adults with disabilities who have parenting responsibilities. Disabled parents and those with mental health and addiction problems are likely to be under increased stress in meeting the needs of their children, and the unavailability of services under the Care Act 2014 will exacerbate difficulties and lead to more children entering safeguarding processes and ultimately care.

In summary, it is vital the following areas of service for children and families are given careful attention in the legislation and guidance relating to any changes to the implementation 2014 Care Act:

  • The assessment of young carers.
  • The special needs of young adults (physical, cognitive, mental health) who are care experienced.
  • Assessment of and services for adults who have parenting responsibilities, noting that many have disabilities and many kinship carers are vulnerable through age and health conditions.

Collaborative working across adult and children’s services and with the health service will be even more essential than usual.

Schools will play a new role as they are ‘re-purposed’ as a safe place for the care of children of critical workers and vulnerable children.  Confidentiality and privacy of families deemed vulnerable is essential.  Public/media labelling of families as ‘child protection’ cases and the way this term is being used (e.g. by teachers and others when discussion takes place on who will be able to access school places) is already concerning.  The tone of the narrative should be: “Children who for whatever reason receive a social work service (including assessments of individual and family needs) will be considered as eligible to have access to a school place if this is in their best interest”.

BASW England recommends that guidance is devised for social workers and social care professionals undertaking home visits when there are concerns that the care and protection needs of children may not be being met. Face-to-face interactions and family home visits will be essential in some cases and especially complex.  BASW England will offer our expertise in devising such guidance and suitable financial resources to enable us to do this would be welcome. 

Realistically, there will be issues around curtailment of court services, both in child protection cases and parental separations.  Contact centres are closing and any increased delay in court hearings will mean children not seeing their parent(s) for unacceptably long periods.  BASW England will liaise with CAFCASS on this.

Comments on the proposed comments on the proposed changes to criminal and youth justice

In the area of criminal and youth justice provision it is the view of BASW England that:

  • Swift preparations and information-sharing is needed in case of an outbreak of the virus within any of our custodial institutions - amongst staff or inmates. BASW England is are very mindful that our custodial institutions are often: old, overcrowded, unsanitary, understaffed and already have very poor health provisions.
  • The Howard League’s recommendations that consideration be given to releasing many prisoners who are serving very short sentences, along with prisoners who are nearing their release dates. However, we BASW England is mindful that this will impact on the ability to swiftly resettle them in the community considering their specific needs.
  • There is a risk of a sharp rise in crime - particularly theft.  If these concerns are not misplaced, then this could mean an increase in remand places, which could dwarf the number of beds available by any early release programmes.
  • The proposal to only proceed with Crown Court hearings that have a short court duration planned is a double-edged sword, as it may ‘bottle-neck’ the numbers that need to appear before the courts for serious crimes.  Also, potentially, people who are remanded in custody may have to remain there for extended periods – which is a contravention of human rights.
  • The potential increase in sickness in the police force, which has also suffered a dramatic reduction of personnel in the last 12 years.  A worst prediction is that there may be a surge in crime due to of Government policy (e.g. lockdown leading to civil unrest), which could overwhelm law enforcement agencies and the judicial processes currently in place.

Conclusion

Unfortunately, a decade of austerity has placed health and social care in a precarious position.  From a social work perspective, the Bill drastically reduces people’s access to a quality social work assessment and service by social workers. It also narrows the eligibility criteria of assessed needs and people’s rights to appeal/complain if the service does not comply with legislation.  BASW England recognises the necessity of the Bill is to ensure the continuity of social work services and enable professional discretion (where possible) to decide on prioritisation of needs during this crisis.  It is also not clear when, and under what circumstances, various provisions in the Bill would be activated. However, there should be a mandatory review after 6 months and a ‘sunset clause’ after 12 months if not explicitly renewed.

If the provision is intended to protect local authorities from judicial review after the crisis, an alternative, rights protecting approach should be taken.

On a final note, the speedy availability of personal protective equipment for social workers is absolutely imperative.

For further information please contact:

Co-ordinator of members’ responses and compilation

Wayne Reid

BASW England Professional Officer

British Association of Social Workers

wayne.reid@basw.co.uk

 

Further information