Clinical Negligence & Catastrophic Injury Solicitors
Coronavirus legislation and the vulnerable.
- AuthorKim Daniells
Emergency legislation giving the British government wide-ranging powers during the Coronavirus pandemic, including relaxing rules around detention under mental health laws and altering some social care procedures, has become law after being backed by the House of Lords without amendment and receiving Royal Assent.
The the 329-page Coronavirus Bill 2020 allows "extraordinary measures", never seen in peacetime UK, which the Government says will be applied only “when strictly necessary” and will remain in force only for as long as required to respond to the crisis.
However, charities and campaigners have criticised the legislation, as they fear it will place some older people, and those with disabilities, at risk.
They claim that measures in the Bill will temporarily remove the legal duty on local authorities to provide social care to all who are eligible. This is because some clauses suspend existing duties requiring councils to meet the eligible needs of vulnerable older people, disabled people, and care leavers moving into adult social care.
The social care clauses are designed to allow councils to prioritise care for those they consider most at risk if adult social care services become overwhelmed by surging demand or staff absences.
A government impact assessment says that, if actioned, “these clauses could result in individuals not receiving support for some needs where local authorities judge that resources need to be focused on meeting the most acute and pressing needs.”
Charity, Disability Rights UK, said: “Given the already broken social care system this Bill will almost inevitably leave many thousands of disabled people without essential support or any rights to request this support. Rolling back our rights is not good for anyone and in the current circumstances will put many lives at risk.
“Rather than removing disabled people’s right to social care support, the government must treat our essential social care service as key infrastructure, alongside the NHS, and, as such, it must immediately provide the necessary funding to keep this vital service running.”
Currently, the Care Act requires local authorities to assess the needs of all people who need care and support, consider whether they are eligible for state-funded support, and where necessary provide a plan of care.
However, the government argues that, at the peak of the crisis, it may be impossible for councils to continue to maintain current service levels, or undertake the detailed assessments they would usually provide
The legislation argues that, as the impact of coronavirus peaks: “it is crucial that local authorities should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments.”
It adds adds: “These provisions, which would be brought into operation only for the shortest possible time at the peak of the coronavirus outbreak, would allow local authorities to do this by temporarily releasing them from some of their duties under the Care Act 2014.”
It adds that, even during the operation of these changes, councils would still be expected to continue meeting all of their duties under the act if they are able to do so.
A separate clause temporarily amends the Mental Health Act to make it easier to section people into mental health facilities, and detain them for longer on the authorisation of just one, rather than two, doctors.
Charities have objected to this and, in a letter to ministers, said relying on the judgment of one individual on issues of such magnitude was "neither reasonable nor proportionate.
Paralympian and crossbench peer, Baroness Grey-Thompson, said many disabled people were very worried by the bill and that it could lead to the loss of rights and crucial social care support.
She said: "Like many others, I have huge sympathy for what the government is trying to do but a bill of this magnitude will be life-changing for disabled people. This is a health and social care obliteration bill by a different name."
Her fellow crossbench peer, Baroness Campbell of Surbiton, a former commissioner of the Equality and Human Rights Commission, said disabled people "must not be invisible in the survival planning process.”
She has raised the issue with the Department of Health and Social Care and says some disabled people are not attached to any agencies.
Baroness Campbell said: "We are on our own. We are employers, and we have to put in place our own safety mechanism. If you are on a ventilator - and there are lots of us - that takes two months of training, so what's going to happen?"
Disabilities Rights Lawyer, Chris Fry, said: "What is critical is what is life-saving, but for many people, there are all sorts of other needs that might be considered minor or moderate now, but might not be in the future and there's nothing in this bill that allows for any assessment of that."
The Department of Health and Social Care said that it "recognises the concern among personal assistants and those receiving their support" and said it will do "everything it can to help ensure local authorities continue to provide care."
The legislation includes a vast spectrum of measures increasing the use of audio and video links in courts. Some organisations could also be required to provide space, or resources, for the storage, or management, of dead bodies, while rules relating to investigatory powers will be relaxed while the law is in force.
Other elements of the bill give legal force to measures, already announced, including closing schools and nurseries, restaurants, cafes and pubs and allowing ministers to ban gatherings. The venue owner or event organiser can be forced to cancel, close down or restrict access and may be fined if they fail to do so.
The legislation also gives extra powers to intervene if the government suspects anyone is disrupting food distribution. Another allows the closure of UK borders if too many border staff fell ill.
Among the most severe powers is for police, public health and immigration officers to detain people suspected of having Covid-19, force them to isolate and fine them if they refuse a test.
Speaking of the legislation, Kim Daniells of the CNCI team said, "In these unprecedented times, it is to be expected that there will be changes to the the work carried out by individuals and organisations. We are acutely aware that it is the most vulnerable in society who will experience the greatest disruption as a result of those changes. It is critical that central and local government continue to work closely with charities and voluntary organisations to ensure that the vulnerable, their families and carers are fully informed of the information and support that remains available".