Is it just me, or does the guidance on the Care Act easements seem a bit, well, vague?!
If you haven’t seen it, it is here: https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014/care-act-easements-guidance-for-local-authorities
Now this might just be my bitterness, because I have been working flat out to get some Covid FAQs out for my local authority, and I had to look at them all again in light of the government guidance. But I don’t think the guidance answers many questions for local authorities on the ground. Instead it abdicates a lot of the responsibility to individual local authorities to make their own decisions on priorities. It refers a lot to the ethical framework, but this is also vague, and gives broad principles, not the answers that practitioners need.
The guidance talks at length about the process local authorities should follow before they decide whether or not to rely on the Coronavirus Act provisions. This is quite helpful, but also a bit confusing, because the commencement regulations have brought the provisions into force, but then the guidance aims to restrict local authorities use of these powers until they have followed these steps. It’s legally messy, but I promised pragmatism on this blog. And I don’t believe for one minute that any authority will try to rely on these powers unless they have followed the guidance so I’ll not split hairs.
The next thing that I noticed was the reference to DoLS guidance. I am so desperate for guidance on this that the promise that DoLS specific guidance will follow had me immediately emailing our DoLS manager. Still no timescales though, and it is frustrating in the extreme. Because human rights are important damn it! But I’ll not go into another DoL related rant, I promise.
Rather I will continue with my review of the guidance.
In that respect, I am somewhat exasperated, because the FAQs I have written did not need much amendment when I read the new guidance. And many of the questions still do not have answers. And these are important questions. For example:
The reference to breach of human rights is clear, but it isn’t expanded upon to help practitioners assess what this threshold is with any certainty. We have the case law, but this sets a high threshold, and by not making this clear in the government guidance, I think local authorities are put in that position we are so often put in, of being the ‘bad guy’. The public perception of what protection human rights gives them is pretty different from what the case law actually says. So families will be saying “you need to do this, to protect my rights” but in many cases we won’t. To amount to a breach of article 2, there must be a real and immediate risk of death that the local authority knows or ought to have known about and taken reasonable steps to safeguard against. To amount to inhuman and degrading treatment, the care, or lack thereof, will need to create a very serious situation. The case law is that a disabled person being in unaccessible accommodation for a period of months, unable to access toileting and bathing facilities and being completely reliant in her husband was not enough to amount to inhuman or degrading treatment. Same goes for the right to private and family life. Unless there has been a serious breach of statutory duty, then this right is unlikely to be triggered. And the statutory duties are being significantly diluted. And most of our family lives are already being restricted for public health reasons.
So yeah, human rights in this context is likely to be a high threshold. If things get bad, a lot of care will be withdrawn or reduced. This is being skirted around in the guidance, because it is an unpopular message.
And I get it, the scaling back of social care in this way is scary, but if these measures are needed (and I reserve my judgement on that) then I’d like to see honesty about what that means for people.
Let’s also consider that without clear guidance on how to prioritise there will be inconsistencies between areas, and there will be reluctance from local authorities to be brave enough to meaningfully prioritise. No authority is going to want to be the one that delivers these uncomfortable messages, for understandable reasons, so they’ll try to scrape by and meet everyone’s needs. If this is achievable, blooming wonderful! But if not, then it will be those with the complex needs that suffer, which isn’t how prioritisation is meant to work.
And another thing that puzzled me, is that the key message of this has been that the changes will reduce administrative tasks for practitioners. I don’t see that happening. They don’t have to do a full Care Act assessment, but they still need to establish what the person’s needs are, assess capacity and assess risks. They will still need to conduct some type of assessment to establish if a breach of human rights will occur. Still sounds like a lot of admin to me. The same goes with support plans, a plan of what support will be in place for that person, which is individual and person-centred will still need to be created so providers know what to do, and local authorities know what they are paying for. It seems to me that the work needed to develop these different processes will take time and focus away from frontline work. So much for priorities.
So today I am wondering what the point is. What is the point of me drawing up guidance that won’t carry weight, when the true guidance is so vague.
And what is the point of designing processes for a short term system. Because this should be short-term. It has to be short-term for the good of the vulnerable in our society, and for our society as a whole. So what is the point of these new, complex provisions that are causing confusion and panic.
Would it not have been easier and simpler, as has been suggested by other commentators, to have just created a reasonable endeavours defence to legal challenges on social care provision during this time? I know I would have need to do a lot fewer FAQs if that was the case.
I imagine all local authorities are now frantically trying to draw up policies and guidance. I certainly haven’t done much else for the last week and a half.
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