Emergency legislation known as the Coronavirus Act 2020 has been introduced by the government in response to the COVID-19 Coronavirus pandemic. The Act is designed to manage demand caused by the Coronavirus outbreak and prioritise resources and will initially last two years.

Impact on the Care Act:

The Act will weaken the duty under section 18 of the Care Act to meet adults’ unmet eligible needs for care and support, which would be required if it were necessary to prevent a breach of the person’s rights under the European Convention on Human Rights. The same would apply in relation to the duty to meet carers’ eligible needs under section 20 of the Act.

The Act will suspend the requirement to prepare or review care and support plans for adults, or support plans for carers, and the duty to provide continuity of care when a person moves between local authority areas.

The Department for Health and Social Security has published an ethical framework to help local authorities to prioritise between competing needs, and states that people should be included in decisions and treated with respect and in a way to minimise harm. Councils will also have to regard the government’s guidelines when applying provisions under the Care Act. The proposals have triggered widespread concerns about the impact on people with needs and their carers.

Impact on the NHS Continuing Healthcare Assessment: 

Legal powers and regulatory requirements concerning the NHS Continuing Healthcare Assessment are being eased so that patients leave hospital more quickly, enabling doctors and nurses to focus on treating seriously ill people. The Act means that hospitals can delay the CHC assessment process until the COVID-19 outbreak has ended. This funds post-hospital care to individuals who have been assessed as needing primary health care.

Clinical Commissioning Groups (CCGs) were afraid that they would face legal challenges if their legal duties were not eased. But not knowing if funds will be granted to support them or their loved ones in the community will create a great deal of uncertainty for people. To help this, people who the CCGs feel are eligible for CHC funding will be assessed after the emergency but will fund their care upon discharge.

Impact on the Mental Health Act:

If the crisis continues and there are fewer professionals available, then the emergency law allows for fewer mental health professionals to help people whose mental health puts them at risk. So, usually, three people – an Approved Mental Health Professional (AMHP) and two doctors - have to agree that someone needs to be detained.

Under the emergency legislation, this will reduce to one – although the AMHP will have to record why they are detaining the person, and only if they believe that staff shortages caused by COVID-19 would take too long for a second doctor to assess them.

Under the Mental Health Act, in emergencies, professionals can detain patients who are in hospital voluntarily – to stop them from leaving if they think they are a risk to themselves or others.

This can be done only after conducting a full mental health act assessment, and that professionals agree to detain the person. Individuals can only be held for up to 72 hours if agreed by a doctor, or up to six hours if agreed by a nurse. But the emergency legislation extends the time to 120 hours if agreed by a doctor, or up to 12 hours if agreed by a nurse.

Due to the pandemic, we are concerned that there may be changes to the way mental health tribunals take place. They may be done by telephone conference or the number of panel members needed may be reduced in future, or there may be delays to tribunals, or individuals may not have to attend in person (‘paper hearings’).

We continue to follow government guidelines around social distancing and are monitoring the changing situation, so we can continue to safeguard those who will be impacted by this legislative change.

If you are worried about the changes and think these will impact your quality of life, or you know someone affected by this, get in touch, and we will see how we can support you.