The Coronavirus Act 2020 and what it means for the social care sector – published by CMM
This article was first published by Care Management Matters on 3 April 2020. Click here to visit CMM’s website.
For the social care and healthcare sectors, The Coronavirus Act provides significant changes.
The Act received Royal Assent on 25th March 2020 and is now law. Here is a brief guide to some of the key recent statutory changes.
Temporary Registration of Social Workers
In the exceptional circumstances arising from COVID-19, the UK Government has introduced a power allowing for the temporary registration of social workers during the period of crisis. This is to be revoked once 14 days have passed following the end of the crisis.
What this means in practice is that previously registered social workers in England and Wales who have left the register, and those who voluntarily leave the register during the emergency, may be invited to return to practice. The regulator may register a person as a social worker, or the persons comprising a specified group of persons as social workers, if:
- The Secretary of State has advised the regulator that an emergency has occurred, is occurring or is about to occur and that the regulator should consider acting under this regulation, and
- The regulator considers that the emergency registration requirement is met in relation to the person or group of persons.
The power also extends to healthcare professionals (including nurses, paramedics, physiotherapists and others) if they are a fit, proper and suitably experienced person to be registered with either the Nursing and Midwifery Council (NMC) or the Health and Care Professions Council (HCPC) with regard to the emergency. There are important practical implications to bear in mind:
- The person must be fit, proper and suitably experienced person to be registered as a social worker.
- Just because a healthcare professional is eligible to return to practice does not mean they are obligated to do so.
- There is no registration fee to pay for returning to practice.
- Perhaps obviously, social workers with temporary registration must ensure they adhere to the relevant professional standards. Although, there is no requirement to comply with standard 4 which focuses on continuing professional development.
- In England and Wales, temporary registration does not extend to those studying social work.
Another important provision relates to compensation for emergency volunteers. Under the Act, the Secretary of State must make arrangements for making payments to emergency volunteers by way of compensation:
(a) For loss of earnings.
(b) For travelling and subsistence.
Protection for Healthcare Professionals
The Coronavirus Act 2020 enables the Secretary of State for Health and Social Care and the Welsh Minister to provide indemnity in respect of any negligence of healthcare professionals, and others, arising from services provided as part of NHS services that are carried out as part of the response to a Coronavirus outbreak. The power to provide this indemnity relates only to services undertaken on behalf of the NHS.
An indemnity is security or protection against financial liability. As such, healthcare professionals who are not currently covered by Crown Indemnity may be afforded protection when asked to perform a wider range of tasks as a result of the coronavirus outbreak. This issue is discussed in full here in a separate blog.
Changes to the Mental Health Act
The Government has recognised that the expected increased demand for mental health treatment, together with staff shortages within healthcare as a consequence of coronavirus, will mean that it will be very difficult to comply with some of the procedural requirements of the Mental Health Act 1983.
Providers will need to be aware of the changes and how they may impact their decision-making. Read a summary of the key changes.
The Act states that such changes will not come into force until regulations are passed. This section of the Act is not yet in force.
Registration of Deaths
The Government has attempted to streamline the process relating to the management of deaths as follows:
- The list of people who can register a death has been expanded to include funeral directors, so long as they are responsible for the arrangement of the deceased’s funeral and are authorised to do so by a member of the deceased’s family.
- The way in which a death can be registered has been changed so that a qualified informant (those legally permitted to give information about a death) may give the information to the registrar by telephone. The informant must be unable to attend the office of the registrar. Reasons for non-attendance include illness, the need to care for others, risk of infection or staff shortages. This method of registration is therefore likely to prove useful to staff in the care sector during the crisis period.
- Electronic transmission of documents is now permitted in order to register a death.
- The range of healthcare staff permitted to sign the certificate of cause of death has been expanded. A registered medical practitioner who is not the practitioner who attended the deceased person during that person’s last illness may sign a certificate if:
- The practitioner who last attended the deceased person is unable to sign the certificate or it is impractical for that practitioner to sign the certificate, and
- The registered medical practitioner, who had not previously attended the person, is able to state to the best of their knowledge and belief the cause of death.
The intention is to make the process more manageable in times of increased pressures. Hopefully the expansion of these provisions will make the administrative tasks easier to carry out both in terms of availability of staff able to perform the task and the practical steps involved in the task itself.
Again, the Act states that such changes will not come into force until regulations are passed. This section of the Act is not yet in force.
The Act removes the requirement that any inquest into a COVID-19 death must be held with a jury (other notifiable diseases will still require an inquest with a jury).
Indeed, the majority of inquests over the forthcoming weeks and months are likely to be postponed, if they cannot be dealt with on a documentary basis, particularly where witnesses include those working within the healthcare sector. We’ve detailed the impact COVID-19 may have on witnesses in inquests in a separate blog.
Local authorities and the Care Act
The Coronavirus Act proposes, in short, to temporarily suspend most of the duties contained in the Care Act 2014 during the crisis. The Act will effectively free local authorities of their duties to provide social care support and will only oblige local authorities to provide support in cases where the human rights of disabled people will be likely to be breached.
Local authorities will still be expected to do as much as they can to comply with their duties to meet the care needs of people during this period and these amendments do not remove the duty of care they have.
This is intended to enable local authorities to prioritise care for people with the most pressing needs. The Act also allows for the suspension of the requirement to prepare or review care and support plans for adults, or support plans for carers, and the duty to provide continuity of care when a person moves between local authority areas.
Duty to Assess
Currently, local authorities must assess any adult if it appears that they may have a need for care and support. This is not a difficult threshold to surpass and care and support can include any kind of help, bar healthcare, subsistence and housing. The Act removes this duty to assess; local authorities will no longer be obliged to assess if someone has needs for care and support.
Duty to Meet Needs
The Act states that local authorities will retain the power to carry out assessments of need as they consider appropriate. They will also retain the power to meet a person’s needs. However, they will no longer be required to meet needs in accordance with the Care Act requirements, or to prepare and review care and support plans. This is the case whether or not the duty arose prior to the emergency legislation coming into force and whether or not the person is making a financial contribution towards the cost of their care.
The temporary modifications to the Care Act are now in force.
In any event, local authorities will still be expected to do as much as they can to comply with their duties to meet the care needs of people during this period and these amendments do not remove the duty of care they have towards an individual who is at a risk of serious neglect or harm. Moreover, such powers would only be used if demand pressures and workforce illness during the pandemic meant that local authorities were at imminent risk of failing to fulfil their duties. These powers will only last for the duration of the emergency.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.