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23rd March 2020

Coronavirus and Human Rights (version 2)

The Coronavirus Act 2020 – a bill at the time of writing -  is likely to become law any minute, and its regulations are already in law: see https://services.parliament.uk/bills/2019-21/coronavirus.html . Taken together, the Act and regulations give huge powers to Government, to restrict the freedoms and the rights of all of us, to keep all of us as safe as possible during this pandemic.

It is hugely to the credit of staff in health and social care that they continue to worry about the effects these restrictions will have on people who lack capacity to make their own decisions on how to protect their own health and that of others.

Stresses on users of services

The effects will be felt intensely – of that there is no doubt. So many users of health and care services rely on their personal ‘props’ to give them a feeling of safety and happiness in a world that they often find confusing and arbitrary.  Jim gains security from his strict routines, about where he goes, who he speaks to, and what he eats at exactly the same time every day.  Jaz gets his entire well-being from the frequent visits from his family, with the well-worn ‘family jokes’, and the knowledge that he is being understood.  Amina loves and trusts her regular carers, and gets incredibly anxious, even self-harming, if more than one of ‘her team’ is away at a time and other people give her the personal care she so greatly needs.

Short-term necessity

At a stroke, much of these familiar, loved frameworks are being ripped away – not through arbitrary or dictatorial decision-making by providers or even politicians, but to meet the overriding needs faced by everyone: users of services, providers themselves, and the wider community.

And this is the important balance to recognise: we cannot – and should not – seek to find ways to ‘bend the rules.’  But neither should anyone – politician, shareholder or manager – think that these restrictions will form the basis of care after the crisis is over.

Points to guide decision-making

  • The new Covid-19 law and regulations do not remove our existing rights and duties to work within the empowering ethos of human rights law; the Mental Capacity Act (MCA) is an essential part of this.

 

  • Hence decisions must continue to be made in the best interests of individuals who lack mental capacity for those decisions. But it is important to remember that best interests decisions can only be made by choosing among the available options.  Many of our normal ways to ensure people’s happiness, and physical health, and emotional well-being, simply won’t be on the table for a while. I cannot see how most external activities and outings can possibly go ahead: community hubs such as cafes are closed, gatherings for any reason are discouraged and likely to be banned. The available options have shrunk, drastically.

 

  • Record, however briefly, in your Covid-19 file (you have one by now I trust) how you are doing your best to mitigate the additional stresses on people’s freedoms to live how they choose: ‘Jas’s family cannot visit because of the risk of infection, but they will try every day to contact him on Skype at their usual visiting times and we will remind staff to have the laptop ready if possible.’ ‘In case Amina’s staff team cannot get to work, they are compiling tips for new staff on what she likes and dislikes; we will explain to new staff how hard this is for Amina and encourage them to take their time, smile, stay calm with her.’

 

  • At this time, freedom of action and choice is limited for all citizens. There is no way to exempt vulnerable people who may lack capacity from these great but necessary restrictions. But the principles of good care remain; empathy, kindness and ongoing proactive efforts to quell fear and anxiety remain the bedrock of good care. Some people who lack capacity will keep forgetting why their lives have changed so drastically: we must encourage all staff, especially volunteer or new agency staff, to empathise and be prepared to keep sharing simple messages, ‘This is everyone, not just us’; ‘it won’t go on forever but won’t be back to normal yet’; ‘we understand how upsetting this is and let’s look together for things we can do to make you feel even a bit better about it.’

Finally, there’s a real risk that it will quickly become ‘normal’ to restrict people’s rights very intensely to keep them safe. Every care must be taken to remember that this is extremely unusual, and avoid continuing with such restrictions after the end of the current crisis.

 

*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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