Case study: a question with no clear answer

When I started this blog, I said I would provide you with case studies and practical examples of how social care law works in practice. I had in mind a few of my interesting Court cases when I first mused on this point. But then today happened.

One of my philosophies for working as an in house lawyer is that I believe in being approachable and accessible for the practitioners. I explain it to my manager on these terms:

I’d rather spend 5 minutes answering a silly question, than 5 days unravelling something silly someone did.

Most of the team have adopted a similar philosophy, but my number seems to have become something of a ‘hotline’ for panicked social workers. This might be because they think I am particularly helpful, but more likely it is just that I am the sucker that keeps answering my phone. Call-screening is a skill I have yet to master.

Anyway, today I got a call from one of my ‘regulars’. A few seconds in and I was seeing my next few days stretched out before me. Because this particular practitioner had come across a very practical example of the shortcomings in the current approach to containing the pandemic and the conflict in what government are saying, against what the law actually permits.

The story goes like this…

A is a young, physically healthy individual with a moderate learning disability. She lives in a supported living environment but is able to manage a lot herself, coming and going as she pleases to access the community. She can shop on her own, she can use public transport without support. All is rosy.

But A’s neighbour develops a cough, and a fever. Yep, you guessed it, there is a confirmed case of COVID-19 in the supported living placement. Hares are already running.

Most of the residents are prepared to self-isolate, the support workers all provide shopping and help out as best they can given staff absences etc. But A is an independent spirit, and she has very little care for the others around her. She doesn’t much like being told what to do. There is no way A is going to self isolate.

So A is still heading out to the shops, she’s still getting on the bus. She is quite happily going about her day.

A also quite likes to bang on her neighbours’ doors until they let her in. Including the poor neighbour who is suffering with the Virus.

The question to me was what can they do about it.

And I knew this was coming. It was only a matter of time until someone asked me this question. And yet I still didn’t really have an answer. So I am going to break down the options here, so you can see the difficulty.

Option 1 – rely on all these terrifying wonderful new powers the police are going to have to enforce the virus suppression measures under the Coronavirus Bill. But this is just a Bill at this stage. The police don’t have those powers yet. And even if they did, our local police force have been pretty clear that they are very reluctant to use these powers because of the human rights implications. Fair point, I’m inclined to agree.

And anyway, police forces are generally pretty reluctant to charge and prosecute people receiving support from social care, in my experience. That is a whole other issue.

Option 2 – rely on the police’s current powers. The social worker asked me if this could be prosecuted akin to cases of intentionally infecting people with HIV. I am not a criminal law expert, but I suspect it would be pretty difficult to prove intent in this case. Plus see above about police reluctance to get involved when social care is in place.

Option 3 – section her under the Mental Health Act 1983. Legally this could be possible. She is potentially displaying seriously irresponsible behaviour that could bring her learning disability into the definition of mental disorder. She is putting herself and others at risk.

But assessments under the Mental Health Act can be a bit of a lottery anyway. The assessors are, rightly I may add, given independence to make decisions irrespective of what the local authority would like to happen. This case is nowhere near clear enough for detention to be the likely outcome. Especially when it is necessary to consider whether the necessary treatment is available. Mental health beds are like hen’s teeth at the best of times. It’s unrealistic to expect that there is going to be a bed available for her right now. There is always someone in greater need.

Option 4 – increase the restrictions at her current placement to stop her spreading the virus. Powers to do this are limited. She isn’t going to agree to them, and the police aren’t going to enforce them. But the social worker thinks she probably lacks capacity to make decisions about her care and treatment. Supported living is outside the scope of the Deprivation of Liberty Safeguards, but an order from the Court of Protection is a possibility.

There are a few legal issues with this, though. Firstly, we don’t have a detailed capacity assessment and the social worker is unlikely to be able to conduct one whilst the building is ostensibly isolating. We might be able to get enough evidence to form a reasonable belief though, so this isn’t insurmountable.

Secondly, there is an issue with best interests here. Because A is not high risk. She is unlikely to come to significant harm even if she does contract the virus. And she enjoys her freedom. She’ll be pretty distressed if she can’t get out in the community when she wants. Balancing that against the risk to her from the virus will be a hard sell to any judge familiar with the case law.

The risk we would like to account for in the balance is the risk to others. But the relevance of that is pretty limited within the remit of the Mental Capacity Act. Its not an argument I am sold on.

But even if capacity and best interests were clear, there is a practical issue here. As I set out in my first post, the court cannot make A co-operative. And the placement simply does not have the staff to stop her leaving when she wants to and carrying the virus about with her. So this isn’t even a realistic option we can put to the judge at this stage.

Option 5 – move her to a more restrictive placement temporarily. She won’t agree to this, but if she lacks capacity then it might be possible to move her with approval from the Court of Protection. The same issues apply though, in terms of capacity and best interests. And anyway, there isn’t a respite placement available. So not going to happen.

Option 6 – do nothing. This is definitely in compliance with her human rights. Any authority failing to take human rights into account makes me nervous, and since there isn’t a clear legal basis, this seems to be a legally neater option. But is it something that is acceptable politically? I very much doubt it.

Will the placement accept it? They are already threatening to terminate her tenancy, so it’s unlikely that they will just accept her behaviour and the risk it poses to their other residents. Granted they should at least be supporting their other residents to refuse her access to their individual flats if they don’t want her there, but perhaps that is easier said than done. And they’ll be thinking about those headlines: Neglectful care provider allows virus to run rampage, or something far wittier (or more cringe-worthy depending on the newspaper).

And will the community accept it? Will she be vulnerable to aggression from those around her as she blatantly ignores the guidance?

What I wouldn’t give for done some well thought out new legislation, or clear guidance from central government right now…

I really do not have the time for this to become a test case.

An update is in my subsequent post at https://musingsoflocalauthorityasclawyer.wordpress.com/2020/03/30/case-study-an-update/

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority