Posted by Mei-Ling Huang, Partner
The Coronavirus Act 2020 is now law: what do care providers need to know?
This emergency legislation was pushed through in record time to allow the country to deal with this crisis quickly. Much of the Act paves the way for local authorities, CCGs, the NHS and HMRC to put emergency measures in place.
The Government describes the Act as having four main effects:
enhancing capacity and the flexible deployment of staff
easing of legislative and regulatory requirements
containing and slowing the virus
managing the deceased.
For a good overview of the thinking behind the Coronavirus Bill (which preceded the Act), click here to see the Government’s guidance entitled “Coronavirus bill: summary of impacts” here.
What parts of this Act are critical for care providers?
• Continuing Healthcare (CHC) funding
The Act contains a provision relating to CHC funding, which is designed to prevent delayed transfers of care. CHC assessments are seen as a bottleneck, which prevent rapid hospital discharges. CHC assessments require local authority and NHS employees’ time so to free up beds, the Government may temporarily delay the requirement to carry out CHC assessments until after the coronavirus peaks.
The guidance says:
“This measure would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak.”
Nursing homes and other care providers will need to be paid for providing care to those who may be eligible for CHC funding. The guidance does not say much about this but it does say:
“Pending CHC assessment, individuals would continue to receive NHS funded care.”
Presumably, the Government is indicating that it will promise to pay and then worry about the detail later.
The guidance also says:
“In order to mitigate the impact of this uncertainty, and the impact on individuals’ finances, individuals who the CCG considers may be eligible for CHC funding will be directed towards NHS funded discharge routes and assessed for CHC following the conclusion of the emergency.”
We would note the use of the word “may” and the discretion that this gives to CCGs. Where a CCG does not consider someone to possibly be eligible for CHC funding, care providers and families may have new, even more difficult problems relating to funding.
Care providers will have many questions about this. We currently have no further detail, but we will be watching this issue closely. Unfortunately, there may be some fallout from this after the crisis has passed. If providers have specific issues, they should get in touch.
• Local Authority care and support
The Act effectively amends some provisions of the Care Act 2014 so that, as an emergency measure, they do not need to be complied with.
The Government guidance explains the rationale for and the application of this. These provisions will only be triggered when the Government gives local authorities the go ahead. They have said:
“These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak, would allow LAs to do this by temporarily releasing them from some of their duties under the Care Act 2014. Specifically, an LA would be permitted to lawfully prioritise whose and what type of needs it will meet, rather than being required to meet all eligible assessed needs as specified under the Care Act 2014, and will not be required to carry out assessments of individuals’ needs or review care plans.”
The idea is for local authorities to be able to prioritise need without fear of legal challenge. The Government will also have the power to direct local authorities to follow its guidance on how to prioritise their services during this emergency. These provisions are to be triggered if the Government believes that local authorities are at risk of failing to comply with their statutory duties. Some may already be very close to this point. Over the last few years, many overstretched local authorities have been depleting their reserves. In 2019, the BBC named 11 councils as being at risk of exhausting their reserves by 2024. It is possible that the goalposts have now been moved in terms of what would be considered to constitute a failure to meet such duties.
What does this mean for providers? If these provisions are triggered, local authorities may not have to comply with duties to provide the following:
- assessment of an adult’s needs for care and support
- assessment of a carer’s needs for support
- duties to give written records of assessments
- determination of whether needs meet the eligibility criteria
- assessment of financial resources.
This means that local authorities may stop doing financial and needs assessments. They also may not need to comply with an adult’s request for particular accommodation (i.e., choice of accommodation). There may be no requirement to prepare or review care plans or support plans.
What must local authorities still do? They must still meet their duties under the Care Act if they are able to. They must meet an adult’s needs for care and support where it is necessary to avoid a breach of their Convention rights under the Human Rights Act 1998. There also appears to be a requirement that where a hospital gives an assessment notice to a local authority that they plan to discharge a patient, the local authority must inform the NHS:
“(a) whether the patient has needs for care and support
(b) (where applicable) whether a carer has needs for support
(c) which (if any) of those needs the authority plans to meet, and
(d) how the authority plans to meet those needs.”
This provision is presumably designed to prevent delayed transfers of care at a critical time by ensuring that people who need to be discharged from hospital receive assessments and are able to be moved home or into care homes.
• Changes to DBS requirements
Section 31 of the Act states that Welsh Ministers may dis-apply or modify a health or social care DBS provision. This means that the Welsh Assembly is being given the power to relax bureaucratic requirements to allow more people to work in health and social care and to get them approved more quickly.
In Scotland, similar provisions apply under section 32 which permit the relaxation of the application of the Protection of Vulnerable Groups (Scotland) Act 2007.
The Bill preceding the Act did not appear to contain any similar provision that applies in England. However, new guidance regarding DBS checks has subsequently been issued and took effect from 30 March 2020.
• Mental Health Act 1983
The Mental Health Act 1983 has been amended to allow a person to be detained when a single doctor recommends their detention and believes that it would be impractical or would involve undesirable delay to obtain a second opinion (as is usually required).
The considerable amount of pressure being placed on our health service means there is greater concern that the most vulnerable will not receive the urgent care and attention they need. It is hoped that vulnerable persons will not be left exposed but there are serious concerns about the removal of such checks and balances.
• Indemnities for the health service
Many healthcare professionals will be called to the frontline to deal with this crisis. The Government expects the NHS to be stretched beyond limits and for various healthcare professionals to have to act outside of their usual remits. (The guidance gives the example of dental and GP practice nurses being asked to deliver injections in hospitals.) The Government therefore wants to ensure that any gaps in indemnity cover for personal injury are filled and is undertaking to indemnify these professionals for any claims arising out of treatment for someone who has, or is suspected of having, coronavirus.
This section applies to professionals providing care for people with coronavirus as part of the “health service”. Neither the Bill nor the guidance specifically mention social care providers. Our reading of it is therefore that the Government is not extending this indemnity to social care. However, we query whether nursing homes might be providing functions of the “health service” and whether it therefore might be argued that the indemnity applies to nursing homes or others fulfilling emergency needs that would normally be met by the NHS, such as step up or step down units.
Unfortunately, this is not at all clear. Our advice is that providers will need to ensure that their own insurance covers them in these circumstances and that they seek advice in regard to any indemnities. At this stage, there appears to be no guarantee of any back up from the Government and one should not assume that they will give this support to social care.
We anticipate that disputes with insurers will arise in regard to cover. Should care providers find that their insurers are declining to cover them, we may be able to help.
• Registration of deaths
The Act contains provisions to relax the requirement to register deaths in person. It also contains a provision to relax existing regulations relating to the notification of death by doctors to allow a registered medical practitioner who may not have seen the deceased to certify the cause of death, without a requirement to refer the death to a coroner. More detail is expected in the coming weeks.
• Statutory Sick Pay (SSP)
Under section 37 of the Act, HMRC has been given the power to make regulations for the payment of Coronavirus-related SSP to be funded by HRMC. When HMRC draft their regulations, they may make provision for employers to recover some or all of such payments from HMRC, for employers to recover additional amounts from HMRC, for the funding of such payments in advance as well as in arrears, and for what appear to be a mechanism for such payments to be funded out of tax payments that employers owe to HMRC (i.e., a refund).
We should point out that this Act constitutes enabling legislation that permits HMRC to make such regulations. It does not currently impose any rules. For the detail, we will have to wait and see what HMRC come up with. Such regulations will probably cover the procedures that employers will need to follow to make a claim, the procedures for the determination of such claims by HMRC, and requirements for employers to keep records about the SSP payments they have made in relation to Coronavirus-related incapacity to work. These regulations may also have retrospective effect and apply to missed work dating back to 13 March 2020.
• Registration of nurses and midwives
To allow the NHS and care providers to increase their workforce, people who the Registrar considers fit, proper and suitably experienced may be registered as nurses, midwives or nursing associates. The Registrar may register everyone comprising a specified group of persons without first identifying each person in the group. This presumably means that retired nurses or nurses who have completed certain stages of their training may qualify to become registered.
These registrations may be subject to certain conditions, which may be varied or revoked at any time. Nurses registered as a result of this Act will cease to be registered when the Secretary of State advises that the emergency situation no longer exists. Their registration may also be revoked at any time for other reasons, such as when their fitness to practice is found to be impaired.
This will free up a considerable number of nurses and midwives who are currently being trained and have not yet been formally registered.
• Registration of social workers
The Act also allows for the emergency registration of social workers where a person is a fit, proper and suitably experienced. Again, this may mean accelerating the registration of those who have retired or who have completed certain stages of their training.
• Emergency volunteers in health or social care
The Government wants to be able to maximise the pool of volunteers to fill capacity gaps by addressing risk to people’s employment and employment rights and their loss of income. They are therefore creating a form of leave called “Emergency Volunteering Leave”.
The guidance on the Bill says that the policy will require local authorities to identify volunteer social care opportunities and match the opportunities with volunteers. The Government is to provide guidance for local authorities to follow and design a system for them to use. They expect to provide additional funding for this.
Workers will be entitled to be absent from work for a period of 2, 3 or 4 consecutive weeks in order to offer their services and support to an appropriate authority. The worker must be authorised to work as an “emergency volunteer” by that authority who will provide them with a certificate stating how long their services are required. They must notify their employer no later than three working days before this period is due to start.
The “volunteering period” is defined as the period of 16 weeks (four months) beginning on the day on which Schedule 6 of the Act comes into force. The Secretary of State has the power to extend or shorten this period. Emergency volunteers will be compensated when they have experienced loss of earnings as a result of volunteering.
It is hoped that these provisions will enable workers and employees to offer support to communities when they are at their most stretched.
Many key questions relating to this Act, and particularly the detail of how it will operate, have yet to be answered. This legislation was extremely rushed and the Government has not had sufficient time to consider and prepare for every eventuality.
We will continue to maintain a watching brief and update our clients with any information they may find useful.
If you have an enquiry, please contact Mei-Ling Huang on:
01225 459 950 Email us
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