The government will drop Coronavirus Act provisions weakening Mental Health Act protections that have not been needed during the pandemic.
The Coronavirus Act, which was passed at great speed in March before the peak of the pandemic, provides for an application to detain a person under sections 2 or 3 of the act can be based on a single recommendation from a doctor, rather than two, if seeking a second recommendation was “impractical or would involve undesirable delay”.
The act also includes provisions to extend Mental Health Act time limits, allowing doctors and nurses to detain patients already in hospital pending assessment to 120 and 12 hours, up from 72 and six respectively, while also allowing the police to detain a person in a place of safety for 36 hours under section 135 and 136 of the MHA, up from the current 24.
None of the measures have been used during the pandemic to date.
‘Always measures of last resort’
Health and social care secretary Matt Hancock announced the decision to drop the provisions to the House of Commons during Wednesday’s Coronavirus Act debate.
“I hope that that will reassure colleagues that we take a proportionate approach to these measures and that we want to make sure that we have the measures that we need, but where we don’t need the measures then we will set them aside,” he said.
“These were always powers of last resort and I was not persuaded even in the peak that they were necessary because our mental health services have shown incredible resilience and ingenuity.
“So I’ve decided these powers are no longer required in England and will not remain part of the act.”
The government would shortly bring forward the secondary legislation needed to remove the provisions, he said.
Care Act easements to continue into 2021
The announcement comes after it was revealed that the chief social workers for adults had advised ministers to keep legislation suspending certain Care Act 2014 duties in place through the winter, to ensure local authorities are able to meet urgent and acute needs.
The advice from Fran Leddra and Mark Harvey – the joint interim chief social workers – was set out in the government’s adult social care winter plan, published last month. This indicates that the government will keep the so-called Care Act easements in place until March next year, despite no councils currently making use of them.
The easements enable authorities to suspend Care Act duties to assess, develop and review care plans, carry out financial assessments and meet needs – subject to ensuring people’s human rights are not breached.
Statutory guidance under the Coronavirus Act – which councils are required to have regard to – says councils “should only take a decision to begin exercising the Care Act easements when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties”.
They should also notify the Department of Health and Social Care (DHSC) when they start or cease using them.
Separately, the DHSC published an ethical framework for adult social care to inform council decision-making during the pandemic, including in prioritising resources. The framework, which councils are also required to have regard to, sets out a number of principles for decision-making, including that they involve treating people with respect, minimising harm, inclusiveness, accountability, proportionality and reasonableness.
In the two-monthly report on the status of the non-devolved provisions of the Coronavirus Act 2020, published in September, the DHSC said: “Our chief social workers have had conversations with local authorities who have operated under easements. They are satisfied that authorities complied with the ethical framework for adult social care,” the report reads.