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In response to Covid-19, there has been a range temporary of changes to health and social care law across the UK. These changes have primarily been as a result of the Coronavirus Act 2020, which came into force on 25 March 2020 – for more information, please see BIHR’s Coronavirus Hub on changes to law and policy.

In Wales, some provisions of the Coronavirus Act have been brought into force by secondary legislation, effectively changing the law in Wales during Covid-19. In particular, there have been changes to the Social Services and Well-being (Wales) Act 2014 and to the Mental Health Act 1983 concerning the operation of the Mental Health Review Tribunal.

For more information on the laws that have changed in Wales, please see our BIHR Explainers on:

However, in this Explainer, we will look at the laws in Wales that have not changed. We shall look at:

  • The Human Rights Act 1998
  • The Equality Act 2010
  • The Mental Capacity Act 2005
  • The Mental Health (Wales) Measure 2010
  • Other relevant laws

 

Human Rights Act

The Human Rights Act (HRA) is the law in the UK that aims to ensure that everyone’s rights are respected and protected. It contains 16 fundamental human rights of the European Convention on Human Rights and puts them into our law here at home. These rights ensure that we are all treated with dignity, respect and without discrimination.

The HRA places a legal duty on public bodies to respect and protect human rights across their actions, decisions, policies and services, whenever they interact with people. The duty on officials has three parts:

  1. Respect: duty to not breach human rights.
  2. Protect: duty to take action to safeguard people’s rights.
  3. Fulfil: duty to have the right processes and procedures in place, and to investigate when things have gone wrong.

This duty has not been changed by the Covid-19 pandemic, and any decisions made by a public body that interacts with people, including in health and social care settings, must respect and protect human rights.

Importantly, the HRA is a foundational law. This means that all other UK laws should be compatible with the HRA. As a result, other laws such as the Mental Capacity Act and the Care Act should be applied in a way that respects your human rights. Again, this continues throughout Covid-19, and the Coronavirus Act states that it should be applied in a way this is compatible with human rights.

For more information on the HRA, please see BIHR’s Explainer: The Human Rights Act 

 

Equality Act

The Equality Act was introduced in 2010 to advance equality of opportunity for all and protects people from discrimination in the workplace and in wider society. It is against the law to discriminate against, harass or victimise anyone because of what we call ‘protected characteristics’. The 9 protected characteristics are:

  • Age
  • Gender reassignment
  • Being married or in a civil partnership
  • Being pregnant or on maternity leave
  • Disability
  • Race including colour, nationality, ethnic or national origin
  • Religion or belief
  • Sex
  • Sexual orientation

The Equality Act also places a statutory duty on public bodies, called the Public Sector Equality Duty. The public bodies that the duty applies to are listed in Schedule 19 of the Equality Act, and include local authorities, education bodies (including schools), health bodies, police, fire and transport authorities, and government departments. The duty means public bodies must have due regard to:

  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
  • Advance equality of opportunity between people who share a protected characteristic and those who do not.
  • Foster good relations between people who share a protected characteristic and those who do not.

Meeting this duty therefore involves:

  • Removing or minimising disadvantages suffered by people due to their protected characteristics.
  • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
  • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

The Equality Act remains in force across the UK throughout Covid-19, and so public bodies still have a statutory duty to address discrimination based on the 9 protected characteristics. This means when accessing public services, it is unlawful for you to be discriminated because of any of the protected characteristics listed above. For example, it would be unlawful for you to have a Do Not Attempt Resuscitation order placed on your medical records during Covid-19 because you are over a certain age or because you have a certain disability. This would be discrimination. Where this arises when accessing a public service, public bodies have a duty to address this.

The Human Rights Act (Article 14) also protects people from discrimination on the above 9 grounds or “any other status” when linked to their human rights.

For more information on the Equality Act, please see:

 

Mental Capacity Act

The Mental Capacity Act 2005 (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over. For more information please see this NHS page.

However, there have been no changes to the MCA and it remains in force in its entirety. This means that throughout Covid-19, people should still:

  • wherever possible, be supported to make their own decisions
  • not be treated as lacking the capacity to make a decision just because they make an unwise decision
  • if making a decision for someone who doesn't have capacity, make decisions which are in that person’s best interests
  • if they lack capacity, be provided with the treatment and care that is the least restrictive of their basic rights and freedoms
  • if they lack capacity, have opportunity to express preferences for care and treatment
  • if they lack capacity, be provided with an independent advocate
  • be able to appoint a trusted person to make a decision on their behalf should they lack capacity in the future. 

Further, the important Deprivation of Liberty Safeguards (DoLS) contained within the MCA remain in force too. For more information on DoLS during Covid-19, please see the BIHR Explainer: Coronavirus Law & Policy: Mental Capacity & DoLS (England).

  

Mental Health (Wales) Measure

The Mental Health (Wales) Measure 2010 (“the Measure”) was introduced in 2019 to secure earlier and easier access to services for people with mental health problems; to plan and deliver person-centred and recovery-orientated care and treatment with others; to make sure that those discharged from services know how to access support in the future and that independent advocacy is available where required.

The Welsh government have produced Guidance for local health boards and partners on mental health services during Covid-19. Importantly, the Guidance stresses that the Measure and the protections it affords have not been “switched off” in light of Covid-19. There are some changes to the operation of the Guidance in practice – for example, the system is adjusting to carrying out assessments and interventions, by necessity, mainly via telephone or an online medium. As explained in the Guidance, “the priority in the face of these unprecedented challenges is that people have access to mental health support in the best way possible whilst ensuring that public health advice is adhered to in order to protect the health of citizens and the workforce.”

 

Other relevant laws

The Coronavirus Act 2020, which came into force on 25 March 2020, made many temporary changes to health and social care legislation across the UK – for more information, please see BIHR’s Coronavirus Hub on changes to law and policy.

Important laws to highlight are:

  • The Social Services and Well-being (Wales) Act 2014

    The Coronavirus Act has made some changes to this law. The changes mean local authorities will not have to carry out detailed assessments of people’s care and support needs, financial assessments or prepare or review care and/or support plans. For more information on the changes to the Social Services and Well-being (Wales) Act, please see the BIHR Explainer Changes to Adult Social Care Legislation (Wales).

    It is important to note that the Coronavirus Act 2020 does not affect any of the safeguarding protections contained within the Social Services and Well-being (Wales) Act, particularly Part 7 (safeguarding), or the Wales Safeguarding Procedures. Safeguarding adults remains a statutory duty of local authorities to keep the most vulnerable safe from abuse or neglect.


  • The Mental Health Act 1983 (MHA)

    The Coronavirus Act allows some temporary changes to the MHA which have yet to be “switched on” in England. In Wales, only part of the MHA changes have been brought into Welsh law - those concerning the operation and composition of the Mental Health Review Tribunal. None of the other changes to the MHA have been brought into law in Wales.

    For more information on the changes to mental health law in Wales, see BIHR Explainer: Changes to Mental Health Law (Wales).

    For more information on the changes to mental health law in England, see BIHR Explainer: Coronavirus Law & Policy: Changes to Mental Health Law (England).

 

What does this mean for people?

The key thing to take away from this is that, importantly, your human rights and equality protections remain in place throughout Covid-19, no matter what changes have been made to any other laws.

Changes have been made to the law in health and social care settings, but it is important to remember that local authorities continue to have duties under the Social Services and Well-being (Wales) Act to safeguard and promote the wellbeing of vulnerable adults.

No changes have been made to the Mental Capacity Act, and the need to include people without capacity in decisions about their care continues. Similarly, the Mental Health (Wales) Measure remains in force, with some slight changes to how its duties and processes are carried out in practice.

The potential changes to the Mental Health Act have not been “switched on” by the UK government and only the provisions on the Mental Health Review Tribunal have been brought into force in Wales. The safeguards the MHA contains to protect people who are detained under the MHA continue to be in force.

What happens now?

Going forward, it is really important to remember that the laws discussed here are still in place, and that our rights must continue to be protected. The rights and duties contained within the HRA continue to be a foundation law, and all other laws must continue to be applied in ways which are compatible with our rights.

There is always the possibility that the UK government will introduce further legislation to change the safeguards in the Mental Capacity Act and that the Welsh government could bring into Welsh law and “switch on” the changes to the Mental Health Act.

However, for now, the safeguards under the Mental Capacity Act continue to apply, and that the duties on local authorities to safeguard vulnerable adults under the Social Services and Well-being (Wales) Act continue too.

 

Where can I find more information?

 

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.