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ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTEROctober 2020DEPARTMENT FOR HEALTHAND SOCIAL CARE WINTERGUIDANCE, ISSUES FORLOCAL AUTHORITIESSiân DaviesAdult Social Care: Covid-19Winter Plan 2020 – 20211Contents1. DEPARTMENT FOR HEALTH ANDSOCIAL CARE WINTER GUIDANCE,ISSUES FOR LOCAL AUTHORITIESSiân DaviesThis note provides an overview of the Departmentof Health and Social Care (non-statutory) guidanceissued on 18 September 2020. It applies toEngland only.23. WINTER PLAN – IMPLICATIONS FORTHE RIGHT TO RESPECT FOR FAMILYAND PRIVATE LIFESteve BroachThe Guidance is aimed at Local Authorities (“LAs”),NHS organisations, care providers and the CQC.For LAs it should be read alongside the AdultSocial Care Action Plan (April 2020),3 updatedVisiting Guidance (21 September 2020) 4 andADASS guidance.55. WINTER PLAN: IMPACT ON THEDEPRIVATION OF LIBERTYSAFEGUARDSNeil Allen7. CONTRIBUTORS1 020-to-20212 Health and Social Care are devolved: Wales has published its own Winter Protection Plan for Health and Social Care 2020 to2021 d-social-care-2020-20213 t/uploads/system/uploads/attachment -plan.pdf4 -for-visiting-arrangements-in-care-homes5 me-provision-sept-2020

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTEROctober 2020Page 2The Government’s three overarching priorities foradult social care are described as: coordinating medication delivery or pick up withpharmacists. ensuring everyone who needs care or supportcan get high-quality, timely and safe carethroughout the autumn and winter period. facilitating community support (such as foodand shopping). protecting people who need care, support orsafeguards, the social care workforce, andcarers from infections including Covid-19. making sure that people who need care,support or safeguards remain connected toessential services and their loved ones whilstprotecting individuals from infections includingCovid-19.Interplay with the well-being principles of theCare Act 2014The key issue for local authorities is the needto manage a potential conflict in terms of thewellbeing of both care home residents and thosein the community with care and support needs asregards prevention of C-19, and the detrimentalimpact that prolonged periods without communityaccess and visits from family and friends mayhave on their mental health.The Winter Guidance addresses actions to LAs,care providers and the NHS as regards the former(pre-discharge testing, infection control measuresin care homes, limiting staff movement betweensettings and PPE). On the latter, the DHSC statesthat it will distribute tablet devices to care homesthat are in greatest need, so that care home staffcan access remote health consultations for thepeople in their care. This will also support carehome residents to stay connected with theirfamilies and loved ones. Technical and usersupport will be provided to set up the devicesfor use by care providers.Social Prescribing (a bridge between healthand social care) is addressed as a means ofsupporting those who are shielding, or who are inreceipt of social care services, to maintain theirindependence by: conducting welfare telephone and/or video calls connecting people to support social andemotional needs, including through use ofdigital platforms. supporting voluntary organisations andcommunity groups to develop their virtualsupport.The reliance on digital support is understandablein current circumstances but fails to engage withthe needs of those for whom remote contact,either with professionals or family members, isinaccessible or insufficient to meet identifiedneeds.On the issue of visits to those in care homes,the Winter Guidance refers to the (now updated)Visiting Guidance which requires a riskassessment based approach to family membersattending care homes to visit residents. Overall,the Winter Guidance is clear that the “first priorityremains to prevent infections in care homes andprotect staff and residents”.The Guidance does not engage with the effect ofthis on the duty of a LA, in exercising functionsunder the Care Act 2014, to promote the well-beingof an individual.Well-being includes physical and mental healthand emotional well-being, control by the individualover day-to-day life, participation in work,education, training or recreation, domestic, familyand personal relationships and the individual’scontribution to society [s.1(2)]. Under s.1(3), Inexercising a function under this Part in the case ofan individual, a local authority must have regard tothe matters which include:a) the importance of beginning with theassumption that the individual is best-placed tojudge the individual’s well-being,b) the individual’s views, wishes, feelings andbeliefs,

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTERc) the importance of preventing or delaying thedevelopment of needs for care and supportor needs for support and the importance ofreducing needs of either kind that already exist,d) the need to ensure that decisions about theindividual are made having regard to all theindividual’s circumstances,e) the importance of achieving a balance betweenthe individual’s well-being and that of anyfriends or relatives who are involved in caringfor the individual, andf) the need to ensure that any restriction on theindividual’s rights or freedom of action thatis involved in the exercise of the function iskept to the minimum necessary for achievingthe purpose for which the function is beingexercised.Many of these well-being factors are “in play”where an individual is in a care home orcommunity setting and is restricted from accessto friends, family, community resources andleisure/ recreation activities. It is not difficult to seehow those restrictions are capable of exacerbatingexisting mental and physical ill health.The Winter Guidance makes clear that theCare Act easements under the Coronavirus Act2020 are to be exercised only when absolutelynecessary.What is not addressed is the apparentinconsistency of prioritising infection control overpotentially conflicting well-being factors under s.1Care Act 2014.October 2020Page 3WINTER PLAN –IMPLICATIONS FOR THERIGHT TO RESPECT FORFAMILY AND PRIVATE LIFESteve BroachThroughout the Covid-19pandemic, as set out above,there has been a significant tension betweenthe imperative to protect the health of socialcare users (and the social care workforce) andthe need to respect the family life and privatelife rights of those who might be subject toprotective restrictions. At certain points in thepandemic, some local areas and institutions haveimplemented ‘blanket bans’ on visiting in a waywhich is likely to be disproportionate and thereforecontrary to Article 8 of the European Conventionon Human Rights. Where these measures areadopted or supported by public authorities, thiswill in turn breach section 6 of the Human RightsAct 1998, which requires public bodies to act inaccordance with ECHR rights.The Winter Plan continues the Englishgovernment’s approach of treating decisionsrelating to restrictions on family and private liferights as a matter of local discretion. For instance,the ‘key actions’ section of the Plan includes thefollowing: ‘local authority directors of public healthshould give a regular assessment of whethervisiting care homes is likely to be appropriatewithin their local authority, or within local wards,taking into account the wider risk environmentand immediately move to stop visiting if an areabecomes an ‘area of intervention’, except inexceptional circumstances such as end of life.’Importantly, the Plan states that ‘local authoritiesand NHS organizations should continue toput co-production at the heart of decisionmaking, involving people who receive health andcare services, their families, and carers.’ Thisinvolvement should extend to the production ofthe winter plan which is required for each localarea; the Plan states ‘local authorities must put inplace their own winter plans, building on existingplanning, including local outbreak plans, in the

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTERcontext of planning for the end of the transitionperiod, and write to DHSC to confirm they havedone this by 31 October 2020.’As such, it appears that it is a matter for localareas whether care home visits can continuegenerally through the winter of 2020-21, unlessan area becomes an ‘area of intervention’ whenvisits should only be permitted at end of life or inother exceptional circumstances (the Plan laterclarifies that end of life visits should be permitted‘In all cases’). The Plan is silent as to what theapproach should be to visits in other settings,most obviously supported living settings. However,it can reasonably be assumed that the governmentexpects a similar approach to be adopted to that incare homes.The Plan goes on to state that ‘care homeproviders should develop a policy for limitedvisits (if appropriate), in line with up-to-dateguidance from their relevant Director of PublicHealth and based on dynamic risk assessmentswhich consider the vulnerability of residents. Thisshould include both whether their residents’ needsmake them particularly clinically vulnerable toCOVID-19 and whether their residents’ needs makevisits particularly important.’ Again, significantdiscretion is given to individual providers, who willneed to ensure that any restrictions on visitingplaced on their residents and family membersare proportionate. Providers are informed that‘Social workers can assist with individual riskassessments, for visits, and can advise on decisionmaking where the person in question lacks capacityto make the decision themselves.’ However thismay prove to be a rather optimistic statement,given the limited capacity of many local authorityadult social care teams.There is a discrete section of the Plan, headed‘Visiting guidance’. This section reiterates ‘foravoidance of doubt’ that ‘any area listed by PublicHealth England’s surveillance report as an ‘areaof intervention’ should immediately move to stopvisiting, except in exceptional circumstances’which would presumably include end of life visitsOctober 2020Page 4as referred to above. However outside areas ofintervention, the Plan is more permissive, stating‘we continue to encourage providers to findinnovative ways of allowing safe contact betweenresidents and their family members’.The Plan cross refers to separate visitingguidance for care homes: for-visitingarrangements-in-care-homesand supported living: d-19guidance-for-supported-livingCare home providers are also given the followingspecific guidance on visiting in the Plan:‘ensure the appropriate PPE is always worn andused correctly – which in this situation is anappropriate form of protective face covering (thismay include a surgical face mask where specificcare needs align to close contact care) and goodhand hygiene for all visitorslimit visitors to a single constant visitor whereverpossible, with an absolute maximum of twoconstant visitors per resident to limit risk ofdisease transmissionsupervise visitors at all times to ensure that socialdistancing and infection prevention and controlmeasures are adhered towherever possible visits should take placeoutside, or in a well-ventilated room, for examplewith windows and doors open where safe todo soimmediately cease visiting if advised by theirrespective director of public health that it isunsafe’It would perhaps have been helpful if the Planacknowledged the human rights implicationsof restrictions on visiting for service users andtheir family members, and the need for suchmeasures to be proportionate to the risks theyare addressing in order to avoid a human rightsbreach. However it is undoubtedly welcome that

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTERthe Plan does not provide any support for blanketbans on visiting in care homes, outside ‘areasof intervention’. Still less is there any support inthe Plan for local areas or providers imposingrestrictions on service users leaving their caresetting, otherwise than in accordance with theregulations on guidance on self-isolation asapplies to the general population. It remainsunclear though why a national Plan like this isfocused solely on care homes, ignoring the realitythat many social care service users (particularlyyounger people) will be living in supported livingarrangements.Finally, the private life rights of many disabledpeople (including their ‘psychological integrity’ orwell-being) have also been negatively affectedby the closure of many services. As such it iswelcome that the Plan states (twice!) that ‘localauthorities should work with social care services tore-open safely, in particular, day services or respiteservices. Where people who use those services canno longer access them in a way that meets theirneeds, local authorities should work with them toidentify alternative arrangements.’October 2020Page 5WINTER PLAN: IMPACTON THE DEPRIVATION OFLIBERTY SAFEGUARDSNeil AllenThe Plan requires Directorsof Adult Social Services andPrincipal Social Workers toensure their social work teams and partnerorganisations are applying, inter alia, the MentalCapacity Act framework, to review any systemicsafeguarding concerns to date and ensure actionsare in place to respond, and to support adult socialcare to apply statutory safeguarding guidancewith a focus on person-led and outcome-focusedpractice.Of particular relevance to DoLS is that all thosedischarged from hospital or interim care facilitiesto care homes, and all new residents admittedfrom the community, should generally be isolatedin their own rooms for 14 days. This is requiredregardless of whether they have symptoms, andwhether they have tested positive. The purpose isto minimise the risk to care home residents duringperiods of sustained community transmissionof Covid-19 and accords with other updatedguidance. Everyone should be tested before beingdischarged from hospital to a care home andsuch discharge should not take place without theinvolvement of the local authority.A similar 14-day isolation expectation is inplace for hospital discharge to supported livingsettings or their own home. Care home visits areconsidered elsewhere but we note that constantvisitors should be supervised at all times to ensuresocial distancing and should, wherever possible,take place outside or in a well-ventilated room.The guidance recognises that “people withdementia or a learning disability, autistic people,and people experiencing serious mental ill healthare likely to experience particular difficultiesduring the pandemic. This could include difficultyin understanding and following advice on socialdistancing, and increased anxiety. They may needadditional support to recognise and respond to

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTERsymptoms quickly, and in some cases may beat greater risk of developing serious illness fromCovid-19.” We anticipate that such “additionalsupport” may require measures to ensure theyremain in their bedrooms.In addition to this guidance, the Health Protection(Coronavirus, Restrictions) (Self-Isolation)(England) Regulations 2020 requires those testingpositive, or a notified close contact of the same,must self-isolate for 10-14 days depending on thecircumstances. Failing to do so without reasonableexcuse is an offence, with the Regulations makingno provision for those with impaired decisionmaking capacity.In these circumstances, does 14-days isolationconstitute a deprivation of liberty for Article 5ECHR purposes? Those with capacity will not bedeprived of their liberty if they consent to their selfisolation. Those with capacity who refuse to selfisolate could, with reasonable force, be returnedto their homes or another suitable place. As such,they are not ‘free to leave’ but – like guardianship –there is an absence of continuous supervision andcontrol. The matter could, of course, be different ifthere was such supervision and control.For those who lack the relevant capacity, andwhose needs require continuous supervision andcontrol, 14-day bedroom isolation seems to bemore than a negligible period and accordinglywould constitute a deprivation of liberty. It seems,therefore, that those lacking such capacity who areadmitted to care homes – whether from hospitalor the community – and are required to self-isolatefor that period, with additional support required asa result of mental disorder to enable them to doso, ought to be subject to DoLS. Unless dischargedfrom residential care, such safeguards are likelyto be required in most cases beyond the 14-dayperiod in any event. There has been a significantdrop in liberty safeguards during the pandemicwhich must be addressed as we go through thisWinter of increasing confinement.October 2020Page 6

ADULT SOCIAL CARE: COVID-19WINTER PLAN 2020 – 2021 NEWSLETTEROctober 2020Page 7Key ContactsSHERATON DOYLESenior Practice Managersheraton.doyle@39essex.comTel: 44 (0)20 7832 1144Mobile: 44 (0)7921 880 670PETER CAMPBELLSenior Practice Managerpeter.campbell@39essex.comTel: 44 (0)20 7832 1124Mobile: 44 (0)7725 758 264Chief Executive and Director of Clerking: Lindsay ScottSenior Clerks: Alastair Davidson and Michael KaplanDeputy Senior Clerk: Andrew PoyserLONDON81 Chancery Lane,London WC2A 1DDTel: 44 (0)20 7832 1111Fax: 44 (0)20 7353 3978clerks@39essex.comMANCHESTER82 King Street,Manchester M2 4WQTel: 44 (0)16 1870 0333Fax: 44 (0)20 7353 3978 DX: London/Chancery Lane 298 39essex.comSINGAPORE28 Maxwell Road #04-03 & #04-04Maxwell Chambers SuitesSingapore 069120Tel: 65 6320 9272KUALA LUMPUR#02-9, Bangunan Sulaiman,Jalan Sultan Hishamuddin50000 Kuala Lumpur, MalaysiaTel: (60)32 271 108539 Essex Chambers is an equal opportunities employer.39 Essex Chambers LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number OC360005) with its registered office at81 Chancery Lane, London WC2A 1DD.39 Essex Chambers’ members provide legal and advocacy services as independent, self-employed barristers and no entity connected with 39 Essex Chambers provides any legalservices. 39 Essex Chambers (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales(company number 7385894) with its registered office at 81 Chancery Lane, London WC2A 1DD.

adult social care are described as: ensuring everyone who needs care or support can get high-quality, timely and safe care throughout the autumn and winter period. protecting people who need care, support or safeguards, the social care workforce, and carers from infections including Covid-19. making sure that people who need care,

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