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The government has now published the Coronavirus Act 2020.

The government has now published the Coronavirus Act 2020.

It is a wide-ranging piece of legislation which will affect various existing legal rights and protections including those under the Care Act 2014, the Social Services and Wellbeing Act 2014 and the Mental Health Act 1983. Various organisations including Local Authorities and the NHS will have to review their policies and guidance to reflect the new rules.

These changes are mooted to be in place for up to two years (with the ability to extend this further at Clause 76) and can/will be implemented by the government if they feel that the situation warrants it, for example if staff numbers within authorities are sufficiently reduced

The Act is very lengthy and will take quite a while to read and subsequently digest, nevertheless, it is important to try to do so and consider the implications for social work practice. The Schedules to the Act contain most of the detail and are perhaps the most accessible.

Careful scrutiny of the Act is important, given the likely impact on the Human Rights of the people we, as social workers, serve, i.e. the most vulnerable members of society.

The Joint Committee on Human Rights (JCHR) have opened an inquiry into the Governments response to COVID-19 and has issued a call for submissions and evidence.

The JCHR intention is examine Govt. action to ensure it is compliant with human rights, with a particular focus on the right to life (Article 2, European Convention on Human Rights). In addition and of especial interest perhaps to us, is whether any resultant interference with the right to liberty (Article 5) and the right to respect for family life (Article 8) by Govt. action and the Coronavirus Act is proportionate, as the  Convention demands.

Individuals may wish to make a submission to the JCHR in their own right and this is to be encouraged. However, BASW Cymru will also make a submission on behalf of its members and the Wales Law PPEG. If you would like your thoughts or views to be included with the BASW Cymru submission, these will be included in our response. Evidence to the Committee can be submitted up to Wednesday 22 July, although if you wish BASW Cymru to include your submissions, please provide them by Wednesday 15 July.

Points of interest in the Act include:

  • Effective suspension of the ‘duties’ in the Social Services Wellbeing (Wales) Act 2014 and the Care Act 2014 (Schedule 11 of the Act) with replacement by ‘powers’, in exceptional cases, by a ‘duty’ to meet needs where certain conditions arise. In England, this condition is met when human rights are or would be breached. However, as numerous actions in the Courts show, it is extremely difficult to show that a failure to provide care and support has resulted in a breach of human rights; the very few successful cases tend to be where the Courts have found that such a failure has resulted in inhuman and degrading treatment, contrary to Article 3 (ECHR) – a very high bar. In Wales, a duty only arises where a failure to provide care and support would mean that the person may be experiencing or at risk of abuse or neglect.
  • Modifications of the Mental Health Act (Schedule 7)
    • A reduction in the number of doctors (from 2 to 1) required to agree that an individual should be detained
    • Increases to time limits for emergency detention of people in hospital as voluntary patients – Drs holding powers s5(2) increase from 72 hours to 120; Nurses holding powers s5(4) increase from 6 hours to 12
    • Removal of the requirement to have a Second Opinion Approved Doctor (SOAD) for some sections of the MHA where a patient’s doctor wishes to continue treatment against the patients will, beyond the initial 3 months of detention.  The SOAD service exists to safeguard the rights of patients detained under the Mental Health Act who either refuse the treatment prescribed to them or are deemed incapable of consenting.
    • Changes to Police holding powers. The time limit for detention under s136 in a place of safety increases from an initial 24 hours, with a maximum extension of 12 hours, to an initial 36 hours, with same maximum extension of another 12 hours.
  • Powers relating to potentially infected persons – Schedule 20 provides for extensive powers to be used by a ‘public health officer’ to direct a person to go for screening or assessment and, if they feel it necessary, to remove that person to such a place or request the Police to do so.
  • Education – Schedule 16 provides the Secretary of State/Welsh Ministers with the power to downgrade Local Education Authority duties, including those around provision for Special Educational Needs, changing these to an obligation to ‘use reasonable endeavours to discharge’ the duty.

A number of guidance documents have been published by both the govt. and Ministry of Justice. In addition, many legal and professional experts have issued statements of their own:

  • Responding to Covid-19: the ethical framework for adult social care. This guidance recognises that increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making.
    • AThe guidance is of real importance, especially in light of the revised approach of the Coronavirus Act to the Social Services and Well-being (Wales) Act 2014 and the Care Act (2014) noted above.
  • The Vice-President of the Court of Protection has issued two sets of guidance.
    • The first (on 13 March) primarily directed at judges and legal practitioners visiting P (the person at the heart of proceedings).
    • The second  (18 March), reflecting the operational situation of the Court of Protection and offering practical solutions to some of the issues being raised by practitioners.  It includes guidance on how hearings will be conducted.
  • Alex Ruck Keene, writing in advance of the Act’s publication, notes in his Mental Capacity Law & Policy website: We await further guidance from DHSC in relation to MCA and DoLS, but is perhaps striking that (as it stands) the Coronavirus Bill provides for changes to the MHA in terms (for instance) of enabling detention on the basis of one rather than two medical recommendations, but made no mention of the MCA in terms of alleviating statutory responsibilities in relation to the discharge of obligations under DoLS.  At least at present, therefore, what the guidance can do in terms of responding to issues being raised on the ground as to the practical operation of the DoLS would appear to be limited. In addition, the website provides links to resources on COVID-19 and the MCA 2005.
  • Luke Clements (Cerebra Professor of Law at Leeds University) written a number of very helpful articles on the Act, to be found on his website.
  • Lucy Series has some excellent blog pieces on her website:

The Act is the most draconian piece of legislation enacted since the Second World War and it deserves scrutiny, not least for the very vulnerable and disabled individuals upon whom it will have the greatest impact. Clearly, there is widespread concern around the Coronavirus and a need to support services. Nonetheless, the implications of the Act suggest that it appears to remove some of the safeguards in place for vulnerable persons and places a greater burden upon them than others.

The Barrister Neil Allen addresses this directly in regard to the Deprivation of Liberty Safeguards (DoLS) although the article has, arguably, wide resonance across all of Health & Social Care.

Lots to ponder and lots of work ahead for all practitioners. Please let BASW Cymru know how we can support you in all that you do – if we don’t have immediate answers, we will endeavour to find them as quickly as possible.