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Coronavirus: Legislate in haste, repent at leisure?

The emergency Covid-19 bill is expected to whip through parliament quickly following Monday’s debate.

Whilst its urgency is not in doubt, some of the draft powers relating to social care have the potential to eliminate decades of hard-won protections for disabled adults. If the bill goes through in its current form it is perfectly reasonable to expect:

  • Statutory support to become limited to meeting someone’s survival needs with little regard to quality of life
  • A return to large scale institutional models of care
  • A surge in the numbers of people detained long term under the Mental Health Act, a resurgence of long stay hospitals – a failure of Transforming Care.
  • As an unintended consequence, far greater demands being made on Health and Social Care budgets, as individuals enter crisis.

Dimensions’ analysis of the Bill follows. We urge legislators to give it proper consideration.

In brief, we are calling for:

  1. Amendments to the Bill to ensure regular opportunities for parliamentary debates and, crucially, votes on the legislation to hold government to account about the need to ‘switch on’, ‘switch off’ and revive the provisions – at intervals of at least 6 months
  2. Amendments to the Bill to ensure that a local authority must demonstrate that it has given due consideration to a person’s Convention rights through a defined assessment process
  3. A statement from the Secretary of State on what factors will inform decision-making in relation to when powers will be ‘switched on’, ‘switched off’ and revived
  4. A statement from the Secretary as to what guidance already exists and what future guidance is envisaged to which local authorities must have regard under the Bill.
  5. Immediate launch of cross party work to create a shared ambition for social care for adults with a learning disability and autism

Parliamentary Briefing on the Coronavirus Bill

The emergency provisions set out in the Coronavirus Bill mark a significant departure from the standard and scope of social care provision that has been delivered to people who have a disability for many years.

The acknowledgement that, as a minimum, the Convention rights of individuals in need of care and support must be upheld is welcomed, but this in itself will not guarantee a level of care that enables someone to have a good and meaningful life when they have a learning disability and/or autism.

Dimensions believes that our social care system is the foundation for equality and inclusion and we emphasise the need, in the longer term, to return to a system that supports people’s health, wellbeing and meaningful contribution to their community.

In a time of unprecedented pressure on public service, we understand the need for emergency provisions. None the less, we are concerned that there is a lack of parliamentary oversight on the use of such powers. We are calling for:

  1. Amendments to the Bill to ensure regular opportunities for parliamentary debates and, crucially, votes on the legislation to hold government to account about the need to ‘switch on’, ‘switch off’ and revive the provisions – at intervals of at least 6 months,
  2. Amendments to the Bill to ensure that a local authority must demonstrate that it has given due consideration to a person’s Convention rights through a defined and evidenced process,
  3. A statement from the Secretary of State on what factors will inform decision-making in relation to when powers will be ‘switched on’, ‘switched off’ and revived,
  4. A statement from the Secretary as to what guidance already exists and what future guidance is envisaged to which local authorities must have regard under the Bill.
  5. Immediate launch of cross party work to create a shared ambition for social care for adults with a learning disability and autism

Unintended risks

We also note that, whilst the emergency legislation may ease pressure on local authorities, there is the risk of unintended consequences if many people who have a learning disability and autism are left without sufficient support to stay safe and well.

Many people will need support to understand the implications of self-isolation and social distancing; to recognise when they might have contracted COVID-19; and to cope with the changed landscape of daily life e.g. purchasing food and accessing services that are now provided largely online.

Failure to support people may, overall, lead to an escalation of people’s needs and a greater pressure on services when people reach some form of crisis.

Transforming Care

The proposed changes to social care legislation, in combination with the diminished safeguards in mental health legislation create a risk that more people who have a learning disability and/or autism will end up in mental health detention. The government has long had a policy under Transforming Care of moving people out of inpatient settings, but it is difficult to conceive of how this can be maintained under the current Bill provisions.

It is particularly concerning that the safeguards around long term administration of medication in mental health detention will be removed. People who have a learning disability and autism are at high risk of overmedication of psychotropic drugs and recent inquiries into the treatment of people in inpatient care have highlighted the over use of chemical restraint to manage patients detained under the mental health act.

We stress that, no matter the pressures on services, the treatment of people who are deprived of their liberty should be of the highest concern to government and now is not the time to row back on commitments to improve inpatient care as set out in the NHS Long Term Plan.

Indemnity

Many providers will be working in circumstances that they have not previously experienced and negotiating the significant level of regulation of the sector is difficult. Often this is an exercise in balancing individual’s rights against each other, for example:

Limiting contact between individuals and their families without proper authorisation may amount to a breach of mental capacity legislation but is done in order to protect health and, ultimately, life.
Permitting individuals to use company IT equipment to stay in touch with family whilst in isolation may breach GDPR and a right to privacy, but is done in order to protect people’s right to family life.

Providers are, understandably, taking a pragmatic approach wherever possible to enable people to lead minimally disrupted lives and, most importantly, uphold the underpinning rights and principles of ethical support provision. This is exposing providers to liability and to date, the government has not outlined any provision in respect of this.

The Bill proposes indemnity in relation to clinical negligence for NHS workers, recognising that frontline workers will be operating outside of normal situations and that some entering the workforce at a critical time will be coping in a novel context.

Equal indemnity on a par with the NHS proposals must also be appropriate in the social care sector, so that providers can act to uphold rights and respond to emerging pressures without fearing claims against them in the future. Though blanket indemnity brings risks, the government should consider whether further guidance could be given to address a number of likely issues under existing regulation.

Clarity for the sector

The emergency Bill is proceeding through parliament at a rapid pace, offering limited time to consult with people supported and their families and to scrutinise provisions that could drastically change the provision of adult social care.

At the same time, support providers are facing considerable uncertainty about how their support provision may change in the context of tackling COVID-19. There are concerns that providers will be asked to deliver care and support to people regardless of their specialism, in order to free up space in hospital – we could envisage a scenario where as a provider that does not have a nursing registration, we are asked to provide nursing care. How will regulation operate in such a scenario?

Government needs to provide clarity on how the capacity created through these measures would be reallocated. If providers are to experience change and disruption to their business models, by virtue of the people they support no longer being entitled to services, then government must outline how it will mitigate the impact and ensure a diverse market can exist as the sector returns to normality.

The sector should be central to informing ongoing government decision making and should have support to manage the transition to a new way of working if local authorities substantially change their approach to meeting social care needs. Clarification and guidance for providers on potential impact would be welcomed, including:

  • Clarity on whether the legislation is intended to apply to people already in receipt of care and support to meet eligible need.
  • Guidance on the form of care and support that may become more limited e.g. prescribed eligible needs that are less likely to be met.
  • Outlining the anticipated impact of these provisions, including:
  • What level of capacity within 1) local authorities and 2) the social care workforce will be created?
  • What savings will be made in local authority adult social care budgets?
  • Whether social care providers will be expected to use available capacity to meet the needs of people impacted by COVID-19 irrespective of specialism and training i.e. will care homes be instructed to take in individuals so as to free up bed space in hospital?