John Williams, Emeritus Professor of the Department of Law and Criminology, Aberystwyth University
Less than a month ago the UK Parliament passed the Coronavirus Act 2020, which has implications for Welsh public services. For older people, the potential effects on social care are disturbing.
Of the 3.1m people in Wales, 650,000 are 65 or older. Of these, 210,000 are 65-74 years and 82,000 eighty-five or older. More older people rely on local authority support than younger adults. The figure for those 65 and over is 95,000; for 18–64 years it is 31,000. However, the cost of providing services for each group is similar.
Large numbers of older people do not need social care. For those who do, the support they and their carers receive helps maintain independence and reduces hospitalisation. The Social Services and Well-being (Wales) Act 2014 abandoned the post-war social care framework. Social care duties were placed on local authorities. It also placed adult safeguarding on a legal footing.
The Coronavirus Act 2020 gave Welsh Government power to disapply many duties in the 2014 Act. Welsh Government assumed those powers on the 1st April.
Despite a bad press, human rights are key to ensuring government does not discriminate in its use of power. The UK was an original signatory to the European Convention on Human Rights in 1950, however not until 1998 was it made a part of UK law. Older people are often invisible in the human rights debate. Ageism leads to them being valued less and referred to as a burden, although the Older People’s Commissioner for Wales estimates that older people contribute £2.3bn to the Welsh economy.
What human rights are relevant? The European Convention guarantees rights to have life protected and not to be subject to inhuman or degrading treatment. These rights are absolute and apply whatever the crisis. In addition, the right to dignity and respect are important. Under the Convention, the state cannot discriminate against people’s enjoyment of rights based on, for example, age.
In addition, the 2014 Act requires local authorities to have ‘due regard’ to the United Nations Principles for Older People. These Principles include ensuring older people ‘have access to social and legal services to enhance their autonomy, protection and care’ and are treated fairly.
One other aspect of human rights is important, namely ‘proportionality’. It requires the state to be satisfied that what they are seeking to do cannot be achieved in a less intrusive way, and any intrusion must be reasonable taking into consideration competing interests.
Locking down social care for older people
The removal of duties under the 2014 Act and making them powers threaten to place some older people and their carers at risk. Key duties converted into powers include the duty to assess people who may have care and support needs, and to assess carers who may need support. Informal carers provide over a billion pounds worth of unpaid care; for many older people informal carers make it possible for them to live at home.
Removing the rights to assessments could lead to essential needs being missed and well-being harmed. The duty to provide services for older people and their carers who satisfy the eligibility criteria is also converted to a power. The one exception is where abuse or neglect is suspected. However, if visits by social care practitioners are reduced or removed, abuse and neglect will be missed.
Ageist in effect if not in intention
The need for drastic action is accepted, but not at the expense of older people who may be vulnerable. Reduced access to essential social care may increase vulnerability. The World Health Organisation tells us that older people are at greater risk of severe disease if they get Covid-19. Without social care support to maintain general health and well-being, they may become frail and a therefore a lower priority for treatment. The threat to health and well-being by reducing support will inevitably lead to greater demand on an already stretched NHS.
Is this a proportionate response to the crisis? We are told that although the powers are available, their use may be restricted. Critical needs will be met. But what are critical needs? Critical is a vague concept. It also threatens preventative work and anticipates low or moderate needs developing into critical ones with a resulting human cost.
These measures will disproportionately affect older people who are the largest users of services. It risks leading to a decline in their health and well-being and to informal carers being placed under even more stress. Sadly, it may lead to some older people being unable to fight the effect of Covid-19 or deemed not to be a priority for treatment.
One feature of a compassionate society is how it cares for its vulnerable members. However, the true test of such a society is how it does, or does not, do this at times of national crises.