The main provisions of the Coronavirus Act 202 were brought into force without s. 15 and Schedule 12 which concern local authority care and support. Those were brought into force on 31 March 2020. One month on, some common themes are emerging.
Assessments are still needed and expected
Although Schedule 12 disapplies many of the local authority’s duties to carry out assessments, a formal decision making process is required before these ‘easements’ can be relied upon. Until then, local authorities are expected to continue to carry out Care Act assessments and to prepare care and support plans.
DoLs still applies but the guidance has changed
There were no changes to the Mental Capacity Act 2005. Instead emergency guidance was issued. And there is also guidance in an action plan for adult social care.
There is a simpler form for urgent authorisations and a helpful indication that as long as local authorities can show the principles of the Act were followed and good quality care was provided, they will have done all that can reasonably be expected. For more information, please read: Further Thoughts on the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 Pandemic
The Court of Protection is settling into a ‘new normal’
The Court of Protection has now settled into new routines and hearings are taking place remotely in most cases. First Avenue House is moving over to BT Meet Me audio conferencing while the regional courts mostly seem to be using Skype for Business.
In all cases, the parties are expected to make progress despite the current situation unless that is really not possible. However, there is a more prominent focus on proportionality. The court has published a list of priority work.
Tensions over care home visitor restrictions
Care Homes are entitled to have house rules and many have restricted or banned non-essential visitors to reduce the risk of Covid-19. Some relatives have challenged such rules. The court has determined that they are a proportionate response to the current emergency and has emphasised the need to maintain contact with families in other ways. (BP v Surrey County Council & Anor [2020] EWCOP 17 ).
Health needs and family visits – the tension between maintaining contact and complying with the regulations
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 prohibit people from being away from the place where they live except where there is good reason. Visiting relatives is not one of the listed reasonable excuses.
Anyone with mental impairments such as autism need to maintain routines for their health and well-being. In such cases, going to visit family ought to be considered as a health need (which is on the list of reasonable excuses) and the Court of Protection has been willing to make declarations to that effect.