The Coronavirus Act 2020 and Social Work Practice - A Briefing

An updated briefing was issued on 02 October 2020.

Introduction

The Coronavirus Bill was introduced to Parliament on Thursday 19th March and became law on Wednesday 25th March 2020.

The Act has profound implications for social work practice, and service users, across England, Scotland, Northern Ireland and Wales.

In the jargon of government, social work is a ‘devolved’ matter: that is Scotland, Northern Ireland and Wales largely make their own laws and policies about social work. In a change from this, the Act legislates for direct changes to social work law, and thus social work practice, not just in England, but in Scotland, Northern Ireland and Wales - although the devolved authority’s ‘consent’ for some provisions of the Act.

The Act will have a significant impact on everyday life (for example, a power for police to break up gatherings of more than two people and fine those who fail to comply), however, this briefing focuses solely on those aspects of the legislation that will have an impact on social work practice.

Key issues of importance to social workers currently include availability of PPE (Personal Protective Equipment), priority testing and guidance on home visits. BASW is advocating on all these fronts. However, since the Act does not cover these specific issues this briefing will not address these issues here.

The thinking behind the Act

As the name of the Act suggests, the purpose of the Act is to give the government powers that might be needed in a pandemic. Part of these powers is responding to the issue in the health sector of dealing with the ‘surging demand and reduced capacity’ that the virus will cause: that is, there will be more people falling ill, there will be fewer people to look after them and there will be fewer staff to fill critical roles. This thinking has a direct impact on the legal changes that will affect social work practice.

Social work practice: What is the Act changing?

The Act is changing mental health legislation (England, Wales and Northern Ireland) legislation around adult care (England and Wales), and who can be registered as a social worker (all four countries). There are also changes that relate to mental capacity practice in Northern Ireland. More detailed information on these changes is set out below.

Schools across the UK are now closed except for the children of key workers and vulnerable children. This will have a profound impact on how social workers undertake their statutory work with children and families. Although the Act is silent on this aspect of social work, it does legislate to formalise the temporary closure of schools and using school for alterative arrangements (e.g. as provision for key worker’s children and vulnerable children)

The issues

It is understood by all that we are in the middle of a pandemic and that extraordinary times require extraordinary measures.

In a time of normality, it is not uncommon for Bills that relate to social work to take two to three years to become law: going through cycles of drafting, scrutiny, voting and then repeat. This Bill went through Parliament in four working days. The danger is when legislation is put through at speed the full implications of the legislation are not fully understood. Even more evident in hindsight is what might have been included in the Bill - but in the rush was left out.

The original Bill proposed that the government’s new powers would be in force for two years and then reviewed. Many groups (including BASW) argued that this two year period was too long. Bowing to pressure, the Government has agreed that Parliament should review the use of these new powers and changes after six months (i.e. September 2020). Given that Parliament is currently not sitting it is not clear how this review will be implemented.

The law gives the government a range of powers, which need to be ‘switched on’, as the need arises. In the earliest stages of the Bill’s progress it was emphasised that these powers would only be used if absolutely necessary. One week into the legislation being law, it appears that many of the powers have already been ‘switched on’ or are in the process of being switched on.

However, it is the  (temporary)  loss of hard-won rights in the field of adult care that is the major concern. Service user groups, lawyers and advocacy groups are questioning whether the powers taken are in fact disproportionate to the extent of compromising human rights, and are wondering after this period of emergency whether these rights will ever be returned. There are also major concerns about the erosion of rights for mental health service users if changes to the legislation in all UK jurisdictions is switched on in the face of crisis pressures on services (as yet not defined).

A rapidly changing situation

The briefing is a general introduction to the Coronavirus Act 2020 as it relates to social work practice. It is not a comprehensive legal guide to range of significant new areas of legislation. Guidance is being developed and issued by the four governments in the UK, and other agencies, as this briefing is being written. This briefing is not therefore the definitive statement on the situation which continues to evolve.

Changes to mental health legislation:

The Mental Health Act 1983 and associated legislation (England and Wales), the Mental Health and Treatment Act 2003 (Scotland) and Mental Health (Northern Ireland Order) 1986.

No changes to mental health legislation are yet in force. What follows would be the case if these parts of the law are commenced by a Minister.

Amongst other changes, in England, Scotland and Wales only one doctor’s recommendation (rather than two) would be required for a compulsory admission. The various holding power periods for a patient are also increased from 72 hours to 120 hours (England, Scotland and Wales) and from 6 hours to 12 Hours (England and Wales) and from 12 hours to 120 hours (Northern Ireland).

Again, the logic driving this legislation is that medical staff may be unavailable. That does not detract from the fact that for service users a major check on compulsory admission (the need for two doctors to agree) has been removed while holding periods have increased.

Changes to adult care legislation:

The Care Act 2014 (England), the Social Services and Wellbeing Act 2014 (Wales) and NHS Continuing Healthcare Assessments (England) and the Duty of Local Authority to Assess Needs (Scotland).

The changes to adult care legislation in England were commenced on 1st April 2020.

Among other changes, the Act removes the Care Act 2014 requirement for a local authority in England to undertake an assessment for an adult with a disability, vulnerable elderly, carers, children who act as carers and children with a disability. Instead local authorities have a ‘power’ to undertake this work. However, a ‘power’ can remain unused. Effectively then, the hard-won right of disabled or older people to an assessment - and consequently support - have been removed. The exception is where there has been a breach of human rights – but this is very hard to prove, even if the person concerned has the resources to take such a case to court.

BASW argued at the Bill stage of the legislation, as did many others, that were equally effective practical ways of responding to adult care legislation in a pandemic situation, without stripping people of their rights. 

Recent guidance on ‘easements’ to the Care Act in England is important https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014  and was published on 1 April. It confirms continuity of meeting needs and fulfilling Care Act duties and should be every local authorities’ starting point but they can diverge individually at DASS discretion if resources and priorities in the emergency make this necessary.

BASW will be reviewing the implications of commencement of changes to care legislation across the UK and associated guidance in further updates.

NHS Continuing Healthcare Assessments (England) and the Duty of Local Authority to Assess Needs (Scotland). These pieces of legislation were put in place to ensure patients who were about to be discharged would receive adequate practical support in the community – thus preventing a revolving door discharge. Again, the requirements under this legislation have been significantly loosened, again the implicit argument being that in a pandemic people might need to be discharged quicker into the community.

There are also changes to the Mental Capacity Act (Northern Ireland) 2016.

Changes to arrangements for the registration of social workers.

These legal changes are being made to increase the supply of social workers into the profession. Again, the assumption is that there will be a shortfall of social workers in practice due to individuals falling ill, or having to self-isolate, and critical vacant roles will have to be filled. Across the four countries the four social work regulators, who hold and manage social work registrations, have powers to consider how to encourage and facilitate both social workers who remain registered, but are not currently in practice, and social workers who are trained and qualified but are currently not registered to re-enter direct practice. In Scotland and Northern Ireland, the social work regulators are changing registration requirements to allow final year students to register as social workers with a view to entering social work practice.

What happens next?

Social workers will need to keep abreast of the full legislation that is relevant to their area of work, government guidance and information that is specific to their country and area of service as it becomes available. BASW plans to issue practice guidance and resources in a variety of forms for specific areas of legislation that relate to the specific circumstances of each country. In the meantime, BASW continues to provide a wide range of guidance and information that relate to the coronavirus:  https://www.basw.co.uk/coronavirus-covid-19-basw-updates