By Oliver Lewis
In the distant past of 25 March 2020, Michelle Bachelet, the UN High Commissioner for Human Rights, warned that coronavirus “risks rampaging through [detention centres and residential care facilities’] extremely vulnerable populations.” She called on governments to address the situation of detained people in their crisis planning to protect them, staff, visitors and wider society.
Her prescient prediction has come true. Data from European countries suggests that half of all coronavirus deaths involve care home residents. While official figures from the Office for National Statistics record 1.043 deaths linked to coronavirus in care homes in England and Wales up to 10 April, not-for-profit providers umbrella body the National Care Forum has estimated that 4,040 people may have died in residential or nursing homes in the UK up to 13 April.
Over the weekend Public Health England announced there were 3,084 care homes in England with Covid-19 outbreaks, as of 15 April 2020. There are currently 15,492 homes registered by the Care Quality Commission in England, which means there had been, as of last week, outbreaks in 20% of homes. That proportion will rise and some larger providers have already reported cases in at least half of their homes.
Care homes increase residents’ risk of infection because of the physical proximity of and multiple contacts between residents and staff. Care home residents are more likely than the general population to have comorbidities relating to respiratory disease, heart disease, their immune systems, diabetes and obesity, which increases the risk that they will have a more severe form of the infection.
DoLS in the time of coronavirus
A significant number of those in care homes are deprived of their liberty. In the year to 31 March 2019, 116,940 Deprivation of Liberty Safeguards applications were granted in care homes or hospitals. There is no data as to how many residents are currently under a DoLS authorisation, but whatever the figure is, it is a very significant number of residents of care homes and hospitals who are not legally allowed to leave. Those people lack capacity to decide where to live. Unless they are under a short-term urgent authorisation, they are deprived of their liberty under a standard authorisation, under schedule A1 of the Mental Capacity Act 2005 (MCA).
A deprivation of liberty is lawful only if the “qualifying requirements” of schedule A1 are met. One of them is the best interests requirement, which is that it must be in the person’s best interests to be detained and the deprivation of liberty must be necessary to prevent harm and a proportionate response to the likelihood and seriousness of that harm. In determining best interests, the best interests assessor (BIA), typically a social worker, “must consider all the relevant circumstances” – as per section 4(2) of the MCA.
The Coronavirus Act 2020 makes no changes to the MCA. The guidance on managing DoLS cases during the pandemic emphasises that “[c]are and treatment should continue to be provided in the person’s best interests.”
The legal framework may not have changed, but the relevant circumstances certainly have. The life and wellbeing of each care home resident is threatened by continuing be a detained resident, given the risk of contracting coronavirus.
Coronavirus changes the best interests calculation.”
For many residents, the best interests qualifying requirement will no longer be met, because continued detention will cause harm rather than prevent it. Coronavirus is not the only “relevant circumstance” and there will be a myriad of other considerations. But there is no doubt that coronavirus is now a major consideration which local authorities ignore at their peril.
In addition, responding to the coronavirus pandemic, the European Committee for the Prevention of Torture (CPT) has published a statement of principles relating to the treatment of people deprived of their liberty. The CPT calls on all relevant authorities to take concerted efforts to find alternatives to deprivation of liberty, including reassessing the need to continue involuntary placement of psychiatric patients and, wherever appropriate, discharging residents of care homes into community care. Similarly, the UN Committee on the Rights of Persons with Disabilities has called on states to “accelerate measures of deinstitutionalization of persons with disabilities from all types of institutions.”
Furthermore, the state (which includes local authorities and all organs of the NHS such as clinical commissioning groups and NHS trusts) has an ongoing duty to protect each person’s right to life, under Article 2 of the European Convention on Human Rights. The state must not only refrain from taking life, but it must proactively take steps to protect people against threats to life. Given that coronavirus threatens the lives of everyone in long-term care facilities, the state has a duty to reduce that threat, and has a duty to take action now.
Where local authorities have failed to take sufficient or speedy action to protect life, they can expect legal claims against them for negligence and under the Human Rights Act 1998, by families of residents who have died in care homes.
What does this mean for social workers?
Social workers in local authorities are ‘the state’, whether in their roles in arranging people’s care and support under the Care Act, as part of DoLS teams responsible for the deprivation of liberty in hospitals and care homes or as BIAs working on behalf of those teams.
Practitioners should work with families and friends of the person deprived of liberty and make creative use of available resources including family, friends and community. They should use funding already at the disposal of local authorities as well as urgently accessing emergency funding by central government. Social workers should also explore home care, given one carer in a home setting is safer coronavirus-wise than multiple carers in congregated care.
Remember that around 80% of care homes in England reportedly do not yet have a coronavirus outbreak. That figure is going down every day, so take action today to save lives in these care homes. Here are some concrete steps that social workers should take:
- Gather a list of all residents deprived of their liberty in care homes and hospitals your area.
- Contact each resident and ask them how they are doing and whether they have any relatives they could live with while this virus persists. Explain that you will contact these relatives and friends. An inability to talk to you about relatives and friends should not prevent you from contacting them.
- Contact the relatives and friends and ask whether they can provide interim accommodation. This may be a life-saving measure. In ordinary times, people may not be willing to provide such accommodation, but the whole country is stepping up and people are volunteering to help others in so many ways. A “coronavirus planning check list” is provided below, to guide conversations you have with relatives. You can also direct them to the government guidance for those who provide unpaid care to friends or family.
- Contact homeshare and shared lives services in your area and ask for their support to help you move people out of care homes.
- It may not be possible for an occupational therapist to conduct an assessment in the relative or friend’s home, so this will have to be done via video conferencing. Much can be done in this way, asking questions about whether the home is barrier-free, has stairs and so on.
- Likewise, any training that the relative or friend requires to enhance their capabilities to meet their loved-one’s needs can be done via video conferencing.
- Telephone the registered manager of each care home in your area, and advise them to reach out to residents’ families and friends to make arrangements to get residents out on a temporary basis.
- Reach out to families and friends of care home residents directly. Put out public information to people who live in the area (for example through social media and local radio and television) advising families to contact their loved-ones in care homes and make arrangements wherever possible, to offer interim accommodation and care. Frame the message in a positive way: this is an opportunity to save a life and make a real difference.
- Speak to colleagues about how the local authority could provide funding for professional care staff to go into the home of the relative or friend to support their loved-one.
- Inform care home residents’ relevant person’s representatives (RPRs) and independent mental capacity advocates (IMCAs) of the steps that you and colleagues are taking and ask for their urgent assistance.
- Where there is any dispute (in other words, if there is some solution that could work but the local authority thinks it is not in the person’s best interests), it is incumbent on the local authority to make an application under section 21A of the Mental Capacity Act 2005 to the Court of Protection as a matter of urgency.
- When an application is made, involve the RPR and send them a copy of all of the documents and make sure they get in touch with a solicitor. In these times, it would be useful if the local advocacy service contracted by the local authority is able to perform the function of a litigation friend in the Court of Protection. This will be a much quicker process than the court inviting the Official Solicitor to act as litigation friend. If this is not part of the contractual arrangement, work with colleagues in other departments of the local authority to amend the contract and provide additional funding.
Coronavirus planning check list
Below are 25 prompt questions that social workers can use in discussions with relatives or friends of care home residents. The answers can be used to develop a plan for the resident to leave the care home.
- Is the loved-one in danger of infecting other vulnerable members of the household?
- During these stressful times, is the relative’s household able to provide a safe, abuse-free and conflict-free place for all, and conducive to the demands of care that the relative would be taking on?
Mobility (if relevant)
- Is the home barrier-free?
- Is the loved-one able to move around the home?
- Do they need to be transferred (bed / toilet / shower) and how would this happen?
- Do they need a lift?
- Do they need bedrails or other protective devises?
- Is the bathroom accessible?
- Do they need assistive devices such as wheelchairs, walkers or canes?
Medication and home care
- Can the relative provide any needed medication?
- Is the relative able to monitor health conditions?
- How will skin care be managed (if relevant)?
- How will incontinence be managed (if relevant)?
- Can the relative support physiotherapy or gentle exercise under tele-guidance?
- Does the loved-one have trouble eating? Can the relative support their food needs?
- Who will the relative call if the loved-one becomes sick (with Covid-19 or an underlying condition)?
- Will the loved-one have access to their regular GP?
- How will finances be arranged? Can social workers help the relative with benefits applications? Can local authority funding be redirected to home care?
- Is the relative in employment
Dementia and memory (if relevant)
- How will the relative support their loved-one if they have dementia?
- Is the relative able to support a person with memory loss and other effects of dementia such as wandering or self-harming?
- Is there a plan to keep the person safe at home? DoLS teams may need to apply for an order depriving the person of liberty in the community from the Court of Protection, but this should not slow down or prevent a transition to a relative’s home.
- How will the relative support their loved-one’s social engagement – for example, through telephone, Zoom and so on?
- What are the main areas where the relative would need support (this can be done through a quick carer’s assessment under section 10 of the Care Act 2014)?
- How can the local authority provide such support?
This list has been adapted from CanAge, an elder law NGO in Canada.
Perfection is the enemy of the good
It will not be possible for each resident to leave. Many people do not have families, so there will be no relatives to call on, shared lives or home care is unfeasible or needs are too significant to meet in a home environment. But many people do have families and friends who may be willing to step up and help out for a few months. And there are thousands of people in the country who may consider sharing their home to save a life.
During a human rights emergency, perfection is the enemy of the good. Social workers are used to rolling up their sleeves and getting on with it. Now more than ever, they should muster their creativity to come up with solutions that reduce the risk of older and disabled people living in congregated care facilities.
This is a public health emergency. It is also a human rights emergency for care home residents and staff. The best time to have taken this action was a month ago. The second best time to take action is today.
Oliver Lewis is a barrister at Doughty Street Chambers. His email is email@example.com and his Twitter handle @DrOliverLewis