In the third in a series of articles by barristers at 39 Essex Chambers on the Winter Plan, Neil Allen considers whether the government's guidance on self-isolation constitutes a deprivation of liberty for those with reduced capacity.
The Plan requires Directors of Adult Social Services and Principal Social Workers to ensure their social work teams and partner organisations are applying, inter alia, the Mental Capacity Act framework, to review any systemic safeguarding concerns to date and ensure actions are in place to respond, and to support adult social care to apply statutory safeguarding guidance with a focus on person-led and outcome-focused practice.
Of particular relevance to DoLS is that all those discharged from hospital or interim care facilities to care homes, and all new residents admitted from the community, should generally be isolated in their own rooms for 14 days. This is required regardless of whether they have symptoms, and whether they have tested positive. The purpose is to minimise the risk to care home residents during periods of sustained community transmission of Covid-19 and accords with other updated guidance. Everyone should be tested before being discharged from hospital to a care home and such discharge should not take place without the involvement of the local authority.
A similar 14-day isolation expectation is in place for hospital discharge to supported living settings or their own home. Care home visits are considered elsewhere but we note that constant visitors should be supervised at all times to ensure social distancing and should, wherever possible, take place outside or in a well-ventilated room.
The guidance recognises that “people with dementia or a learning disability, autistic people, and people experiencing serious mental ill health are likely to experience particular difficulties during the pandemic. This could include difficulty in understanding and following advice on social distancing, and increased anxiety. They may need additional support to recognise and respond to symptoms quickly, and in some cases may be at greater risk of developing serious illness from Covid-19". We anticipate that such “additional support” may require measures to ensure they remain in their bedrooms.
In addition to this guidance, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 requires those testing positive, or a notified close contact of the same, must self-isolate for 10-14 days depending on the circumstances. Failing to do so without reasonable excuse is an offence, with the Regulations making no provision for those with impaired decision-making capacity.
In these circumstances, does 14-days isolation constitute a deprivation of liberty for Article 5 ECHR purposes? Those with capacity will not be deprived of their liberty if they consent to their self-isolation. Those with capacity who refuse to self-isolate could, with reasonable force, be returned to their homes or another suitable place. As such, they are not ‘free to leave’ but – like guardianship – there is an absence of continuous supervision and control. The matter could, of course, be different if there was such supervision and control.
For those who lack the relevant capacity, and whose needs require continuous supervision and control, 14-day bedroom isolation seems to be more than a negligible period and accordingly would constitute a deprivation of liberty. It seems, therefore, that those lacking such capacity who are admitted to care homes – whether from hospital or the community – and are required to self-isolate for that period, with additional support required as a result of mental disorder to enable them to do so, ought to be subject to DoLS. Unless discharged from residential care, such safeguards are likely to be required in most cases beyond the 14-day period in any event. There has been a significant drop in liberty safeguards during the pandemic which must be addressed as we go through this Winter of increasing confinement.