Department for Health and Social Care Winter Guidance: issues for local authorities

Siân Davies provides an overview of the Department of Health and Social Care (non-statutory) guidance issued on 18 September 2020.

The Guidance [1], which applies to England only [2], is aimed at Local Authorities (“LAs”), NHS organisations, care providers and the CQC. For LAs it should be read alongside the Adult Social Care Action Plan (April 2020) [3] ,updated Visiting Guidance (21 September 2020) [4] and ADASS guidance [5].

The Government’s three overarching priorities for 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, support or safeguards remain connected to essential services and their loved ones whilst protecting individuals from infections including Covid-19.

Interplay with the well-being principles of the Care Act 2014

The key issue for local authorities is the need to manage a potential conflict in terms of the wellbeing of both care home residents and those in the community with care and support needs as regards prevention of C-19, and the detrimental impact that prolonged periods without community access and visits from family and friends may have 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 measures in care homes, limiting staff movement between settings and PPE). On the latter, the DHSC states that it will distribute tablet devices to care homes that are in greatest need, so that care home staff can access remote health consultations for the people in their care. This will also support care home residents to stay connected with their families and loved ones. Technical and user support will be provided to set up the devices for use by care providers.

Social Prescribing (a bridge between health and social care) is addressed as a means of supporting those who are shielding, or who are in receipt of social care services, to maintain their independence by:

• conducting welfare telephone and/or video calls
• coordinating medication delivery or pick up with pharmacists.
• facilitating community support (such as food and shopping).
• connecting people to support social and emotional needs, including through use of digital platforms.
• supporting voluntary organisations and community groups to develop their virtual support.

The reliance on digital support is understandable in current circumstances but fails to engage with the needs of those for whom remote contact, either with professionals or family members, is inaccessible or insufficient to meet identified needs.

On the issue of visits to those in care homes, the Winter Guidance refers to the (now updated) Visiting Guidance which requires a risk-assessment based approach to family members attending care homes to visit residents. Overall, the Winter Guidance is clear that the “first priority remains to prevent infections in care homes and protect staff and residents”.

The Guidance does not engage with the effect of this on the duty of a LA, in exercising functions under the Care Act 2014, to promote the well-being of an individual.

Well-being includes physical and mental health and emotional well-being, control by the individual over day-to-day life, participation in work, education, training or recreation, domestic, family and personal relationships and the individual’s contribution to society [s.1(2)]. Under s.1(3), In exercising a function under this Part in the case of an individual, a local authority must have regard to the matters which include:

1. the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being,
2. the individual’s views, wishes, feelings and beliefs,
3. the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist,
4. the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances,
5. the importance of achieving a balance between the individual’s well-being and that of any friends or relatives who are involved in caring for the individual, and
6. the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.

Many of these well-being factors are “in play” where an individual is in a care home or community setting and is restricted from access to friends, family, community resources and leisure/ recreation activities. It is not difficult to see how those restrictions are capable of exacerbating existing mental and physical ill health.

The Winter Guidance makes clear that the Care Act easements under the Coronavirus Act 2020 are to be exercised only when absolutely necessary.

What is not addressed is the apparent inconsistency of prioritising infection control over potentially conflicting well-being factors under s.1 Care Act 2014.

Siân Davies is a barrister at 39 Essex Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.

[1] https://www.gov.uk/government/publications/adult-social-care-coronavirus-covid-19-winter-plan-2020-to-2021/adult-socialcare-our-covid-19-winter-plan-2020-to-2021
[2] Health and Social Care are devolved: Wales has published its own Winter Protection Plan for Health and Social Care 2020 to 2021 https://gov.wales/winter-protection-plan-health-and-social-care-2020-2021
[3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879639/covid-19-adult-social-care-action-plan.pdf
[4] https://www.gov.uk/government/publications/visiting-care-homes-during-coronavirus/update-on-policies-for-visiting-arrangements-in-care-homes
[5] https://www.adass.org.uk/cohorting-zoning-and-isolation-practice-commissioning-for-resilient-care-home-provision-sept-2020