The answer, in short is, in my opinion, no. However, there are a number of issues to consider before a weekend with the family, or some formal respite, is supported. In this post, I’ll talk about 3 big issues, 2 legal, 1 practical.
But before we get started, I just want to detail the kind of scenario I am talking about, as it has come up a few times in my discussions with practitioners. As I like to do, I’m going to give a broad case study example.
So, let’s talk about K. K has mental health difficulties and requires routine to manage her mental health, particularly her anxieties. When anxious she can become very distressed and lash out at others or self-harm. She lives in a shared supported living house with 2 other individuals. They each have their own tenancy and a bedroom of their own. The rest of the house is shared. Support is available throughout the day, but the precise hours contracted are tailored to each resident’s needs. For a number of years, it has been K’s routine to spend every other weekend with her family, at the family home. This is an important part of her care package and prevents her becoming overwhelmed and maintains family contact.
During lockdown 1, K spent a few weeks at home. It was hoped she’d be able to spend the whole time there with her family. However, this broke down quite quickly and she had to return to the supported living house in a state of significant distress.
After lockdown ended, she returned to her previous routine, and settled back into manageable patterns. Then lockdown 2 was announced, and I got some panicked phone calls from social workers.
Issue 1: lockdown restrictions
The question I was asked by K’s social worker, was whether K could class her parents as her ‘support bubble’ to enable visits to continue. I confess that I largely ignored the guidance, and went straight to the regulations. In case you haven’t realised by now, I’m generally frustrated by the volumes of guidance available and how little of it is helpful.
But the current regulations are significantly better written than their predecessors. We are now on the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020. These regulations prohibit leaving your home without reasonable excuse, and provide some suggestions of what might be considered reasonable. They also prohibit gatherings, and there is a strict set of exceptions to that prohibition.
There has been much talk in the news about ‘support bubbles’ but this term isn’t used in the regulations. Instead, they refer to ‘linked households’ in regulation 12. But the effect is the same: single adult households, whether with or without children, can link with one other household of any size. Meetings between those two linked households are not considered gatherings which are prohibited by the regulations.
But K lives with other adults, so is unlikely to be considered a ‘single adult household’ and that is confirmed by the guidance which states:
If you live with other adults, including if your carer or carers live with you
You can form a support bubble with one single-adult household who are not part of a support bubble with anyone else.
Since K’s parents also live together, linking households isn’t the answer. Although if K’s mum lived alone, it might have been possible, but this would prevent the other 2 residents from linking with their families, so I don’t think that would be very practical.
That doesn’t mean K can’t visit her parents though. You see, there are other exceptions that might help. Regulation 6(7) allows individuals to leave their homes for the purpose of respite care to a vulnerable person, or a person with a disability.
The same exception applies in relation to gatherings, by virtue of regulation 11(9) and gatherings are also permitted where reasonably necessary to provide care and assistance to a vulnerable person under regulation 11(3).
Neither ‘care and assistance’ nor ‘respite care’ are further defined in the regulations. These exceptions also don’t feature in the general guidance about the lockdown restrictions. As far as I’m aware, the adult social care guidance hasn’t been updated yet. Now I have no doubt this was intended to cover formal respite such as in a care home, rather than respite away from a caring environment. But on my reading, this isn’t ruled out, so it is arguable, in the very least.
I am less convinced the care and assistance exception will help K, given care is available to her on weekends, but that’s untested, as far as I can tell.
But, on the face of it, it looks like neither K nor her parents would be in breach of the regulations if she did go home at weekends as usual.
Issue 2 powers available to adult social services
It’s easy to think that the regulations hold all the answers, and that if an exception didn’t apply, K should be stopped from going home. But the issue with that approach is that it is not social care’s role to police restrictions related to coronavirus. We don’t have enforcement powers of any kind and have very little say in how public health professionals use their powers. And you or I can, if we are willing to accept the risk of repercussions, ignore the regulations and go about our lives as we wish. Please don’t though, because I’d really like all of this to be over as quickly as possible so I can hug my family again without worrying I’ll accidentally kill someone!
My point is, people with care needs shouldn’t be held to a higher standard than those without. And if someone with capacity understands the risks of their behaviour in terms of infection and police involvement, well, their care team have absolutely no power to detain them. They can alert authorities, if that is their policy, but that individual can walk out the door if they so wish.
K has been assessed as lacking capacity to make decisions about her care and support plan. But that still doesn’t mean the care team can stop her going to visit her parents. Firstly, they’d have to be satisfied that stopping her was in her best interests, and I explored some of the difficulties around that when the risk to others is the main concern previously.
Even if that was the case, stopping K leaving is almost certainly going to amount to a deprivation of liberty. The government guidance is a bit vague and unhelpful on deprivation of liberty issues, so let me be very clear. Deprivation of liberty still needs to be authorised by a lawful process. Since K is in supported living, the proper route for seeking authority is through the court of protection. If you’ve seen one of those orders, you’ll know that those orders clearly state that any measures that make the care package more restrictive will need further authorisation. If there is urgency, the change can be made immediately and the authorisation sought as quickly as possible afterwards. But in all other cases, authorisation is needed in advance of changes being made.
The same principles are likely to apply under the Deprivation of Liberty Safeguards, and a review of an existing authorisation may well be needed if a care package is made more restrictive.
In K’s case, there isn’t an order in place at all at the moment because her previous social worker, rightly or wrongly, didn’t consider that the care arrangements met the acid test. Which means the care team have no lawful authority to stop K visiting her family, if she wished.
In some cases, the team might decide that detaining her anyway is the lesser of two evils, and seek court authority as quickly as possible to rectify the situation. But for K, no one is really arguing that visits aren’t in her best interests so detaining her purely in the interests of protecting others is a high risk option. So as a lawyer, I advised we should support the visits if we can. Of course, that’s rarely where I get to ‘step off’.
Issue 3 the implications for those around her
The letter of the law is rarely where my job ends. Whether I like it or not, pragmatism is likely to come into it at some point. And that pragmatism requires us to ask questions like ‘will the care provider take her back?’. Now in K’s case, she has a tenancy, so the care provider couldn’t stop her coming into the house without a possession order which it would take 6 months+ to obtain. But they could say they are not going to provide any personal care or hands on support to K for 14 days, in the interests of protecting their staff (assuming contractual arrangements allow this). That would create a very knotty problem for the local authority who are under a duty to make sure her needs are met as per the Care Act 2014.
There’s also the issue of whether her parents are in agreement, because no one has the authority to make them look after her for the weekend. And of course, as carers, they are also owed duties under the Care Act 2014.
As are the other residents of the house. If there was a significant risk to one of the other residents, say if they were clinically extremely vulnerable, or very anxious about the virus entering the house, then the authority is stuck between a rock and a hard place. It can’t stop K leaving, but it also needs to keep the other residents safe.
Some of these issues are easier to resolve than others. For example, if K’s parents won’t take her, then the only option will be for the local authority to amend her care plan to meet her needs without that element of support, and then seek deprivation of liberty authorisation if required.
If the provider isn’t in agreement, then the answer may well lie in the contract, and in discussions around risk mitigation measures. If this could enable her to be supported, just differently, then it may still be in her best interests to visit home. And if not, it might not be.
A conflict between the needs of 2 residents is trickier to resolve, though. This is an issue that neither the Coronavirus Act 2020, the accompanying regulations or the guidance help us resolve. There isn’t really a quick clear resolution as far as I can tell. Because there is no authority to stop K leaving or prevent coming back, but if she does, then it is going to make it difficult to meet her housemate’s needs. So really, one or other of them needs to move placement on the basis their needs can’t be met, unless an agreement csn be reached. But that won’t be a swift resolution, especially if neither wants to leave the placement and move to live somewhere else.
Thankfully, K’s housemates are content with her visiting her family. One of them is going to their job regularly and the other is still going to day services, so the practicalities, for once, weren’t an issue.
And as far as I’m aware, K spent last weekend with her parents.
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