A Walk Through Scroll up for the materials most relevant to the MCA 2005 and human rights

Emergency legislation

In March 2020, Parliament passed the Coronavirus Act 2020. The Secretary of State has since published many Regulations. The Department of Health and Social Care has also produced a wealth of guidance on how to respond to the pandemic. Some of it is statutory guidance (eg in relation to the easements to the Care Act 2014). Much of it is not statutory (eg in relation to DoLS) and therefore more policy than law. Importantly, no legal changes have been made to the MCA 2005 or to DoLS but the virus and the public health measures mean these human rights safeguards are as important now as ever before.

  • The Department's overview for social care professionals in England is available here.
  • For those practising in Wales, see here.

The Chronological Covid Controversy

The following provides a chronology of how the pandemic laws have evolved during 2020-21. For the latest, scroll to the bottom. They focus mainly on England.

Before 4 July 2020

Following the national lockdown in March 2020, amendments were made on 1 June 2020 which substantially changed its nature. They reversed the legal presumption from "don't go out without a reasonable excuse" to "you're free to go out but don't stay elsewhere overnight". No longer was there any need for a reasonable excuse to go out.

Aside from not staying elsewhere overnight unless there was a reasonable excuse, the only relevant liberty restriction was on gatherings. Unless an exception applied, no person could gather with more than 6 people outdoors or with 2 or more people indoors.

From 4 July 2020

Everything changed with the latest Regulations which came into force on 4 July 2020. People could go out and were no longer prevented from staying elsewhere overnight. Under Regulation 5, people were free to go to and inside each others' home (up to 30 people max) and we could stay in hotels, caravan parks etc.

Under Regulation 6, the Secretary of State could restrict access to specified public places if there was a serious and imminent threat to public health and it's necessary and proportionate to do so. This enabled a more localised response to the virus.

From 14 September 2020

The public health measures became much more localised and differ across the United Kingdom. Insofar as England is concerned, we are generally not allowed to gather inside or outside in groups of more than 6. The main exceptions to this 'rule of 6' are:

The rule of 6 can be enforced by the authorities if that is a necessary and proportionate way to ensure compliance. For those of lack capacity to make decisions on contact with others, it is hoped that to criminalise such contact would be neither necessary nor proportionate, given the availability of best interests decisions.

From 28 September 2020

In addition to the Rule of 6, we now have self-isolation rules which require 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 (eg to avoid a risk of harm) is an offence and going out for exercise is not listed as a reasonable excuse. These rules are enforceable so, for example, the police and community support officers, as well as designated people, have the power to use reasonable force to return you to your home to self-isolate.

Yet again, the Regulations making no provision for those with impaired decision-making capacity. But the guidance that accompanies the Regulations state:

  • "For those with learning disabilities, autism or serious mental illnessNot all these measures will be possible if you, or those you are living with, have significant conditions such as learning disabilities, autism or serious mental illness. Please keep following this guidance to the best of your ability, whilst keeping yourself and those close to you safe and well, ideally in line with any existing care plans."

Lockdown ... the sequel: 5 November 2020 to 2 December 2020

From 5 November 2020 England went back into national measures, until 2 December 2020. , The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 meant no-one could leave their home without reasonable excuse. There were 13 reasonable excuses in regulation 6 but these were not exhaustive. They included taking exercise and visiting public outdoor places, visiting a linked household, visiting family/friends in hospitals or care homes, and having respite.

It was therefore entirely lawful for family/friends to visit those in hospital and care homes. The regulations did not limit the reason for visits (eg end of life), their length or frequency. Note, however, that to visit those in supported accommodation etc was less straightforward. Here family/friends may have had to rely on the outdoor exercise exception 4.

Inside and outside gatherings (2 or more people) were also prohibited, but with exceptions which included linked households/bubbles and support groups (of up to 15 people). Importantly, if for example family were meeting outdoors, the presence of up to two carers for those with a disability who need continuous care was not included in the numbers.

2 December 2020 to 5 January 2021

Public health restrictions in England are put in 4 Tiers. Those who are clinically extremely vulnerable (see below) are advised to shield. In Tier 4 areas, you cannot meet other people indoors unless you live with them or they are part of your support bubble.

6 January to 31 March 2021

And we are back into a third national lockdown by virtue of amendments made to the The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. All of England is in a more restrictive version of Tier 4 to contain the spread of the new variant of the virus. The prohibition on going out of our homes and the reasonable excuses for doing so are here. The situation is similar to March last year, other than we can form support bubbles and the most vulnerable are being vaccinated.

It remains lawful to visit those in hospital or care homes but careful consideration will need to be given to the lockdown guidance by which visits to care homes "can take place with arrangements such as substantial screens, visiting pods, or behind windows. Close-contact indoor visits are not allowed. No visits will be permitted in the event of an outbreak“. The December care home visiting guidance is yet to be updated.

Vulnerable and Clinically Extremely Vulnerable

As ever, it is important to distinguish between the law and guidance. The law is less restrictive than guidance, and guidance is clearly vital in addressing the virus but does not have the same weight as the law. The guidance distinguishes between "vulnerable" and "clinically extremely vulnerable" people. And there are two lots of government guidance. One is for staying alert and safe. The other is for shielding (where people were encouraged to stay at home, shielded from the virus, for a much longer period than for others).

A "vulnerable person" includes (but is not limited to) those with underlying medical conditions such as respiratory diseases (eg asthma), learning disability, diabetes, those with a body mass index of 40+, and all those aged 70 and over, and those who are pregnant. So there are other conditions that could make someone vulnerable.

Clinically extremely vulnerable people (eg those with cancer, low immune systems etc) are those who will have been notified by their GP and advised to shield as they are at higher risk of serious illness from the infection. Shielding means: (1) do not leave your house, (2) do not attend gatherings (including with friends or family in private spaces), and (3) avoid all contact with people who have symptoms of the virus. The latest guidance dated 21 March 2021 advises to stay at home as much as possible.

The latest guidance on the third lockdown is here. Guidance on DoLS is here. The latest care home visiting guidance is here.


Created with an image by Deniz Fuchidzhiev - "Westminster by night"