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Legal rights and coronavirus: Caring for vulnerable people

Human rights solicitor Anna Moore discusses the changes to the Care Act put in place due to the coronavirus and how this could impact on the care received by vulnerable people.

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Related Areas of Practice:
Human rights solicitor Anna Moore has a particular interest in cases involving mental health and deprivation of liberty matters. She acts for a number of vulnerable clients
In this time of crisis, we are all facing increased restrictions on our lives. The impact felt by those who are vulnerable and rely on others for support is particularly acute during these uncertain times. The government’s response in amending the Care Act 2014 - which is the law governing what local authorities must to do support vulnerable people in their area - to reduce the obligations on local authorities is cause for concern.  

In recent days, the government has passed new legislation, the Coronavirus Act, to seek to deal with this national crisis. Unfortunately, one of the things the Coronavirus Act does is reduce the responsibilities on local authorities to assess and support vulnerable people in their area during the coronavirus pandemic.
The government has said the reasons for these changes are because “during the peak [of the virus], adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. This may make it impossible for LA’s [local authorities] to continue to deliver at current service levels, or undertake the detailed assessments they would usually provide.” 

This will no doubt leave those who rely on support concerned about the impact that this new law will have on their lives. 
 

What changes have been made to the Care Act?


There are many different rights and responsibilities contained in the Care Act. Here we focus on just two of the most important duties – to assess and to provide support.

Under the Care Act a local authority has a duty to assess any person who may be in need of care and support. This means that they must assess someone if they think they might need support. It is a low threshold to meet the requirement to be assessed. However, this duty has been temporarily suspended. 
Another important part of the Care Act is the duty on authorities to meet a person’s ‘eligible needs’. The Coronavirus Act also suspends this duty. Under the Coronavirus Act a local authority has the power to meet eligible needs, but it no longer has a duty to do so, unless it will cause a breach of a person’s human rights (which is a very high test to meet).

Although these are only temporary measures, they could stay in place for up to two and a half years.
 

What do changes to the Care Act mean for vulnerable people who rely on support from social services?


This may impact on the options available for a person’s care as local authorities are no longer obliged to assess vulnerable people or meet their care needs. However, local authorities still have a duty to promote the wellbeing of a person and so any decision they make, for example to reduce or withdraw care or not undertake an assessment of needs must still adhere to this important responsibility.

The government has provided guidance to local authorities and has said they will still be expected to carry out proportionate and person-centred care planning. They must also provide sufficient information to all concerned, particularly those providing care and support. If any plan is revised or sought to be withdrawn, the authority must also continue to consult with and involve the care user and their carers. 

It goes without saying that we are in a very challenging time and many local authorities and health bodies providing care and treatment will be under huge strain. However, decisions must still be ‘person centred’ and consider all reasonable options. 

Local authorities must still comply with their duties under the Human Rights Act and the Equality Act. 


Do the changes to the Care Act impact people who lack capacity?


The new Coronavirus Act 2020 is silent on the impact of the current health crisis on people who lack capacity to make decisions for themselves. This means decisions must still be made in a person’s best interests in the usual way and if there is a disagreement about what is in a person’s best interests, an application to the Court of Protection can be made. Separate guidance has been  published in relation to individuals who lack capacity and are deprived of their liberty as there may be practical difficulties in people visiting those deprived of their liberty to check that they are receiving care that is in their best interests. 

In summary, the Coronavirus Act makes very significant changes to the Care Act 2014, in particular by removing the duty on local authorities to assess people who might need care and to provide care to meet eligible needs during this time of crisis. The duty to provide and review care plans has also been removed. 
If you are concerned that a friend or family member is not getting the care or treatment they require or decisions are being made that are not in a person’s best interests, you can seek legal advice. It may be that you can seek to challenge your loved one’s care via the Court of Protection or by Judicial Review, depending on the type of decision.  

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