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13th March 2020

Care homes, Coronavirus, and Human Rights

 

The phony war is over.  After the weeks of ‘what should we do if this disease gets close to home?’, suddenly there are more and more care homes reporting cases of Coronavirus (Covid-19).  And we know that older people, and those with underlying medical conditions such as people living with learning disabilities or additional disorders, are the ones likely to be most ill with it.

Combined with this demographic worry, we also know that the entire social care sector is really fragile at the moment anyway: many trained and experienced care staff are leaving because of Brexit, wages are low, and recruitment is an ongoing huge problem.  Add to this the frailty of the entire NHS – also suffering recruitment problems and long-term austerity – and we see that those people who rely on care support, whether in a care home , or supported living , or in their own homes, are hugely at risk of harm from this new virus.

Hard decisions

It’s a time for hard decisions, and for them to be made ‘on the wing’, with the situation changing –  seemingly for the worse, in terms of the numbers of infections – every day.  The Government is recommending ‘cocooning’ these vulnerable people.  This sounds very cosy, but in a situation so new, so scary, the temptation towards very risk-averse decision-making is great. Pulling up the drawbridge may feel safe, but there are real concerns to be aware of.

Public health England guidance for residential care settings seems to assume that there is no community transmission yet of Covid-19 in this country; it lists countries such as China and Italy as being the only sources of the illness here.  This does feel a bit behind the curve.  It seems inevitable that the disease will be – probably already is – passed on from one person to another without any clear route back to countries known to have high levels of infection.

In this context, many care providers are banning what they call ‘unnecessary visits’ -often those from relatives and friends.  We can all see why they are doing this – it is intended to safeguard both staff and residents from the risk of a very nasty infection.

Article 8 rights – which say that all of us have the right to live as we choose, to and stay in contact with the people we care about – can be breached to maintain public health as well as to protect the health of the individual.  For Article 8, see here https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life .

Of course, staff have the same rights as those who use the service:  both groups share the right to be kept as safe as possible from a possible life-threatening infection.  But the residents, who may be being prevented from contact with those they love, are also losing the great pleasure and a feeling of safety they would gain from their company.  These relatives or friends often carry out essential care services to the loved person, such as keeping them mobile, helping them to eat and drink enough, as well as making them happy. These aren’t small services: they are part of a meaningful life.  If infection isn’t close by in your community, and in the absence of local or national guidance, before banning all movements, consider if it’s sufficiently safe to pop large signs up saying ‘Share Happiness not Germs’ asking visitors not to enter if they pose any risk to such vulnerable people, and provide facilities for all visitors who consider themselves safe to visit, to wash their hands properly?

The time for this may be past in many parts of the country and for many services, where the infection is already occurring, but do record that you have considered the options that are less restrictive, in human rights terms, and factor in the services supplied to residents by their visitors.

The Mental Capacity Act (including deprivation of liberty)

The Mental Capacity Act (MCA) encapsulates some specific protection for the rights of people lacking mental capacity. It is essential to test all restrictions, to be sure they are necessary to prevent harm to people, and a proportionate response to how likely that harm will be and how serious it will be. Then, record the steps you are taking to ensure as much protection for basic human rights, for people who use your service as you can.  Examples might be to encourage and facilitate, wherever practicable, residents to have chats over the internet or by phone, and to try to keep up as much in the way of activities as possible.  A relative or friend with rights under a lasting power of attorney for health or welfare (LPA) is likely to ‘stand in the shoes of that person’ and have the right to make decisions for them about health and welfare.

Refresh your memory about users of the service who may have LPAs in place, and also about any possibly relevant advance decisions to refuse treatment.  Indeed, while there is no infection directly in the service, it is a good idea to encourage people who have the capacity to do so to think about their own situation, and how they would like to be treated if they should become very unwell.  You can support them to make any advance decisions to refuse treatment, thoughtfully and lawfully.  For guidance and tips on making an advance decision, see here https://compassionindying.org.uk/making-decisions-and-planning-your-care/planning-ahead/advance-decision-living-will/

Remember that people lacking capacity may have a right to visits from an advocate, who is acting as an independent mental health advocate (IMHA) or independent mental capacity advocate (IMCA): in the absence of clear Government guidance, take legal advice if you are thinking of preventing people from having visits from these.

Deprivation of liberty

Where people are living with dementia, some might already be subject to deprivation of liberty safeguards (DoLS) authorisations.  Note that the DoLS authorisation only relates to situations where the risk of harm is to that individual, rather than to others: this means that blanket bans on visitors or outings may be harder to justify, in the absence of an outbreak of illness in the actual home or where a staff member has tested positive.  If, say, you are not only refusing access to most visitors to prevent illness coming into the service, but also refusing to allow people out who normally access the community, in the absence of any known or suspected infection affecting the home, you need to consider very carefully what is the legal basis for this.

Some people will have the mental capacity to agree to ‘self-isolate’ for their own safety, so record that they agree to temporary restrictions for the good of all.  For those who lack capacity, who may be bewildered and scared at being subject to new restrictions on their freedoms, consider whether any new restrictions are really necessary and proportionate.

If you feel it is necessary and proportionate to deprive individuals who lack capacity of their liberty, as well as of their outside contacts, take every step possible to give them as much freedom as you can. Then consider whether, in spite of this, anybody newly meets the ‘acid test’ of deprivation of liberty, because they:

  • Lack capacity to consent to the necessary arrangements to give them essential care and treatment; and
  • Are not free to leave (staff would stop them if they decided to go and live somewhere else); and
  • Are subject to complete, or continuous, supervision and control (staff know where they are, and what they are doing, at all times, and control what they do).

If this is met, and you cannot reduce the level of restriction or supervision for this individual, discuss with the DoLS team of your local authority (or, where relevant, the DoLS team of the placing authority) whether or not you should request an authorisation.  They may well also be suffering from staff shortages due to Covid-19 as well as their ongoing stresses, but record the conversation and its outcome, and continue to do all you can to enhance people’s basic human rights, rather than restrict them unnecessarily.

And finally, keep abreast of Government guidance in this fast-moving situation: see here https://www.gov.uk/government/publications/guidance-for-social-or-community-care-and-residential-settings-on-covid-19/guidance-for-social-or-community-care-and-residential-settings-on-covid-19

Keep an eye out for CQC updates (also at the moment seeming somewhat behind the curve on this) see here https://www.cqc.org.uk/news/stories/how-were-responding-outbreak-coronavirus

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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