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Legal changes

The tightening of restrictions to prevent a second COVID-19 wave and the impact on an already stretched social care sector

How does this latest development affect the already squeezed social care sector?

The Government’s tightening of restrictions this week to try to control the anticipated second wave of COVID-19 is ostensibly aimed at the general public meeting at home. The latest recorded increases in infection have been attributed to socialising in households and the figures indicate that there has recently been a significant increase in people being admitted to hospital. The focus once again is on prevention and the vulnerable in our society.

But how does this latest development affect the already squeezed social care sector?

Back in April at the beginning of the lockdown the Government identified four pillars to deal with the challenges of COVID-19:

  1. Controlling the spread of infection
  2. Supporting the workforce
  3. Supporting independence, supporting people at the end of their lives, and responding to individual needs
  4. Supporting local authorities and the providers of care

The adult social care sector has valiantly coped with the unprecedented additional challenges that COVID-19 has created: including maintaining staffing levels, obtaining PPE and locating testing kits and difficulties in isolating people being discharged from hospital into their care who may not have capacity. This is a hugely difficult task and Registered Managers have also had to absorb ever changing guidance as well as amendments to legislation. With the CQC recommencing investigations, infection control and assessments of capacity are likely to be focal points.

On 7 September 2020 the Department of Health and Social Care issued its latest guidance (“the Guidance”) on the Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic. This guidance is for everyone caring for the vulnerable including hospitals and there is an emphasis on conducting remote assessments where necessary – rather than being the normal process, as was previously advised. With the current ringfencing of specific geographical areas to restrict the progress of the virus, this will be pertinent.

As care providers will know, the Coronavirus Act 2020 does not change the obligations set out in the Mental Capacity Act 2005. The current guidance continues to advise:

“where a person may lack capacity (as defined in the Mental Capacity Act) ensure that 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.“

Discharges from hospital

Government policy has been to test residents prior to admission to care homes as part of its COVID-19 adult social care plan. Anecdotally we know that this has not always been the case and that many care homes have claimed that clients have been discharged into their care without proper testing. It is hugely challenging to test and isolate those individuals who lack capacity.

The COVID-19 hospital discharge service requirements remind hospitals that the duties under the Mental Capacity Act 2005 still apply during this period. 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 the 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, there must be a proper assessment undertaken and an application for DoLS made. 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.

Testing

Care providers must be able to document that they have considered whether or not the cared for person has capacity to consent to testing. We will not go into the detailed guidance here as most care providers will be very familiar by now with the decision-specific documentation needed to record capacity assessment. For those with fluctuating capacity it might be more difficult. If someone has dementia but there are specific times of the day, for example, when they could make a decision to allow a test to be undertaken, this should be explored. If may be possible to discuss the issue with the person so that a record of what they would want can be recorded. 

The Guidance states that a person may lack the relevant mental capacity to consent to testing and self-isolation before or after an appointment or surgery as an NHS inpatient. In this case, the decision makers with responsibility for the person before and/or after the procedure, including family care home staff and other professionals will need to work collaboratively with NHS professionals and consider what is in the person’s best interests to follow infection control procedures mandated by the hospital, in order to ensure that the procedure goes ahead. Joint working and communication will be important in these cases, as the hospital will be dependent on these decision-makers, in care homes and other settings, to ensure that these decisions are taken and implemented at the right time.

In PBU& NJE v Mental Health Tribunal [2018] VSC 564 (an Australian case) the judge set out what is considered to be a useful summary of what makes a good capacity assessment. Although all care providers are familiar with the overarching obligations, it is still a timely reminder to consider that:

The fundamental principles of self-determination, freedom from non-consensual medical treatment and personal inviolability, and the equally fundamental principles behind the right to health, are most respected by capacity assessments that are criteria focussed, evidence based, person-centred and non-judgmental.  Such assessments engage with the demand (or plea) of the person to be understood for who they are, free of pre-judgment and stereotype, in the context of a decision about their own body and private life.

The Guidance anticipates that it may be necessary to change a person’s usual care and treatment arrangements to, for example:

  • Provide treatment to prevent deterioration when they have or are suspected to have contracted COVID-19
  • Move them to a new hospital or care home to better utilise resources, including beds, for those infected or affected by COVID-19, and
  • Protect them from becoming infected with COVID-19 including support for them to self-isolate or to be isolated for their own protection.

If someone already has a DoLS authorisation then the provider must check to ensure that the authorisation covers the new arrangements. It may be that the changes to be made will not constitute a new deprivation of liberty but you need to carry out a review.

If the current authorisation does not cover the new arrangements, a referral for a new authorisation should be made to the supervisory body to replace the existing authorisation.  Remember that DoLS cannot be used if the new arrangements are purely to prevent harm to others. 

Care providers will recall that urgent applications can be made under the shortened Annex B form and submitted as soon as practically possible after the DoL has been identified and started. There are no changes in the guidance to the process for a standard authorisation. Remote assessments will continue to be applicable.  

Social Winter Care Plan

The Government is clearly concerned about the increased challenges for care providers. On 18 September the Department of Health and Social Care published a press release in which it sets out a new adult social care winter plan that aims to curb the spread of COVID-19 infections in care settings throughout the winter months. The press release confirms that a new Chief Nurse for Adult Social Care will be appointed “to provide leadership to the social care nursing workforce” The plan includes the provision of free PPE and payment of £546 million into the Infection Control Fund.

The plan also stipulates that care providers must stop all but essential movement of staff between care homes to prevent the spread of the infection. 

The press release states that the Government is prepared to strengthen monitoring and regulation by local authorities and the Care Quality Commission including asking them to take strong action where improvement is required or staff movement is not being restricted. 

This is clearly going to put more pressure on care providers already juggling rotas and agency staff in addition to increased regulatory scrutiny.

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