Book review: Adult Social Care Law and Policy: Lessons from the Pandemic

Introduction and context

Adult social care is often given little prominence in literature and in historical treatment. Yet, this is a strange anomaly, because adult social care is something that applies to so many families, so many contexts, so many people who are marginalised or disenfranchised. Adult social care is something that lies at the heart of much of what happens in society, but it is a hidden reality in many cases. We don’t want to know about adults with difficulties, we don’t want houses for disenfranchised people to exist beside us, but they do exist, and help is needed. Jean V. McHale and Laura Noszlopy, in their book Adult Social Care Law and Policy: Lessons from the Pandemic, bring this hidden sector into focus, through the viewpoint of COVID-19. Itis an important book because it deals with this crucially relevant subject matter, and it brings to the fore aspects that not been considered before. At the very core of the book is the consideration of the COVID-19 pandemic, and it brings new thoughts about the pandemic to people who, in many ways, are the recipients of the decisions that are made on their behalf by other people or by other agencies, people who are unable or not supported to make their own decisions.

This is a very timely book, and its themes resonate with all of us. Who can forget the whole COVID-19 experience – grandparents and vulnerable people shielding, Personal Protective Equipment shortages, COVID-19 vaccines, vaccine passports, social restrictions? Even writing down these words, I am transported back to this world. On a person level, I think of my grandmother (Mamó) who died from COVID-19 in a care home while I watched her last moments through a glass window. This was in the setting of a care home. I acknowledge that care workers did their very best to treat residents with care and respect. But there were very many mistakes made and this book highlights those mistakes, while at the same time looking to the future in terms of how we, as a society, and the adult social care sector can prepare for another pandemic. This book serves as a record of the way in which emergency powers were used. It also provides a thorough examination of the impact of these measures on carers, care professionals and service users.

Chapter insights

There are seven chapters in the book. Each chapter looks at a different element of law and policy, as affected by COVID-19. The first chapter (‘Adult Social Care in England in a Time of Turbulence’) sets out the demands placed on adult social care over many years. The system already had a lack of funding, and its resources were strained pre-COVID-19. The pandemic made matters much worse. Older people, people with disabilities, carers and care workers bore the brunt of this underfunded and underresourced system in a time of emergency. The Coronavirus Act 2020 introduced Care Act ‘easements’. Section 15 and 16 of the Act allowed for local authorities to ‘depart from the operation of aspects of their statutory powers and duties under the Care Act 2014’. ¹ According to the (then) Secretary of State Matt Hancock, the aim of these measures was to ensure that

those who need social care to live their everyday life get it and can be prioritised ahead of those who have a current right to social care under the Care Act 2014 but for whom it is not a matter of life and death. ²

This caused significant quandaries in relation to how care was rationed. These controversial utilitarian measures were only adopted for a short period and were only used by some local authorities, but McHale and Noszlopy explain in subsequent chapters that adult social care delivery was fundamentally changed during the pandemic, not only by local authorities that applied these ‘easements’. ³

In the second chapter (‘Foundational Paradigms in Adult Social Care Law and Policy’), McHale and Noszlopy highlight the importance of understanding the “nested realities’ of relationality in care’. ⁴ They also consider wider theoretical frameworks and particular focus is placed on concepts such as human rights, autonomy, capabilities and vulnerability as vistas through which to view adult social care. Consideration is given to the tensions between the foundational and theoretical approaches The chapter contemplates, in some detail, the merits and, indeed, criticisms of the social model of disability and the role of human rights law, particularly the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The discussion relating to vulnerability in the chapter is insightful and engaging owing to the depth of information analysed and exploration of important concepts and realities. They state that

[r]espect for fundamental human rights and maximisation of capabilities while at the same time recognising the complexity of the care process, relationships and inherent vulnerability is critical for developing effective social care and pandemic law and policy development and operation. ⁵

In chapter 3 (‘Legal Regulation of Adult Social Care Provision in England’), the legal landscape is analysed in a comprehensive manner. Specific attention is given to the role of local authorities in relation to adult social care. The chapter assesses the organisational structures under the Care Act 2014 and the Local Authorities Act 1970. Attention is also given to the NHS Continuing Healthcare framework and the role of Mental Health Act 1983. Emphasis is placed on oversight mechanisms and the work undertaken by the Care Quality Commission and the Local Government and Social Care Ombudsman. This chapter is somewhat dense, but successfully unpacks the tensions that exist between duties, discretion and resources. McHale and Noszlopy argue that ‘[t]he approach taken by legislation is underpinned by an understanding of individual rights – those of a person with care and support needs of those of carers’ and, consequently, the theoretical concept of relational autonomy is relevant. ⁶

Chapter 4 (‘Pandemic Preparedness Planning and the Development of Emergency Legislation’) specifically addresses the Coronavirus Act and the relevant guidance. It starts off by examining the nature of public health powers and the issue of pandemic preparedness. The chapter analyses pandemic planning exercises before 2020. It scrutinises in some detail the relevant parts of the Coronavirus Act 2020 as well as the interpretation of the Act’s operational framework. The chapter considers why national policy caused different local authorities to act differently. This is linked to the concept of ‘vulnerability’ and ‘the necessity of safeguarding fundamental rights when drafting emergency legislation for adult social care’. ⁷ McHale and Noszlopy argue that emergency planning was not properly undertaken in the specific context of adult social care. They discuss the contentiousness of the Care Act ‘easements’. They claim that the very use of the technical legal term ‘easement’ can be ‘viewed as incongruous and inappropriate given that the intention was ultimately the introduction of legal change’. ⁸ The chapter shows how failures in terms of preparedness as well as a disconnect between central government-local government, consistent and equitable provision across England was undercut. This analysis of legislative preparedness is one of the book’s strongest contributions, offering a nuanced critique of how emergency powers intersect with social vulnerability.

The fifth chapter (‘‘Easing’ the Care Act: Responding to COVID-19 in the West Midlands’) uses empirical research methods to address the issue of adult social care in the West Midlands. This is a particularly interesting region because there were more Care Act easements operating there than any other region in England. The authors make use of documentary evidence (such as local authority documents, coverage from the media and freedom of information requests). ⁹ They refer to anonymised voices of important stakeholders who described how the easements were operationalised (or otherwise) in 2020–2021. McHale and Noszlopy explore the convergence and divergence between the different approaches as well as the ‘extent to which the rhetoric of position statements made in public- facing local authority documentation was reflected both in the available council minutes and in the post- hoc, and more candid, views’ of the people who were interviewed in the West Midlands region. ¹⁰ This discussion is discerning and it allows for clear understanding of what occurred ‘on the ground’.

In chapter 6 (‘Pandemic Legacies: ‘Living with COVID-19’ in Adult Social Care’), the authors examine the pandemic legacies for adult social care as the country began ‘living with COVID-19 in the expectation that the virus would soon become endemic and more manageable following the vaccination programme’. ¹¹ The chapter considers what can be learnt from the application of the Coronavirus Act 2020 at national level. McHale and Noszlopy compare the national-level findings with the case study discussed in the previous chapter. They refer to the ever-growing pressure on the sector and the legacy of COVID-19, particularly in relation to digitisation in data management and the direct provision of adult care services. The chapter also considers the psychological toll placed on unpaid carers. The authors state that

In general, our interviews and the review of literature demonstrated growing concern about the pandemic’s impact in the context of adult social car reads ‘legacy of the pandemic’, both in terms of the measurable impacts on people’s lives and well- being and whether there may have been a wider ‘cultural shift’ wherein people have become accustomed to less, and lack of support and provision. ¹²

Chapter 7 (‘Adult Social Care Law and Policy: Learning Lessons from the Pandemic’) provides a synthesis of the findings of the book and also situates this synthesis in the context of wider lessons. It is obvious from McHale and Noszlopy’s analysis that there is a need for robust preparedness planning, a clearer central-local link is required, and it is also important that greater transparency exists. Most importantly, the authors argue that any reform pertaining to adult social care must give significant weight to the issue of vulnerability. They argue that a significant strain has been placed on adult social care post-COVID-19 and this has had an impact on workers and service users in a system that was already underfunded and underresourced in comparison to the National Health Service. Even though there have been some efforts to improve the system through, these efforts have not gone nearly far enough. McHale and Noszlopy contend that reform is required that engages with legal principles, the Care Act 2014, wider understating of the concept of wellbeing, public involvement and transparency when making decisions. The authors cite empirical data that highlights some positive changes, but systemic issues continue year-on-year (e.g. not sufficiently integrating with health services and a lack of funding). Overall, McHale and Noszlopy say that lessons must be learnt from the COVID-19 experience and this must inform future law, policy and pandemic preparedness. ¹³

Critical evaluation: contributions and insights

Having outlined the structure and scope of the book, it is worth considering its overall contribution to scholarship and policy. Not only is this book timely, it is also original. The empirical research allows for a sense of authenticity. It is a primary account of what happened on the ground and the impact of COVID-19 on the whole sector. The book brings together different paradigms (such as vulnerability and autonomy) to evaluate the interaction between lived experiences and application of law. Therefore, the book is relevant to a wide range of readers: anyone who has an interest in legal scholarship as well as legal practitioners, policymakers, care sector practitioners and anyone who is analytically or practically engaged with the impact of COVID-19 on adult social care. The way in which the book incorporates both socio-legal and empirical research means that there is a transition from practice to theory and theory to practice.

The book places a specific focus on the West Midlands (whose population is particularly diverse, with significant examples of socio-economic rural and rural deprivation). ¹⁴ The authors explain that the area was chosen to assess the influence of the Coronavirus Act 2020 and the related Care Act easements (because this was one of the areas where they were in place). The selection of the West Midlands as a case study for empirical research is particularly interesting as it allowed the authors to highlight the clash between national policy and statute and discretion in application at local level. The interviews conducted really brought to life the challenging decisions made by Directors of Adult Social Services, care providers and principal social workers. Therefore, the book does not just show what happened during these years. It bridges the gap between the law/rules and practical realities. The case law is presented very clearly, and this allows readers to think about the effects of statutory ‘flexibilities’, ¹⁵ issues relating to resource allocation and ethical impasses.

McHale and Noszlopy make a critique that is intended to be constructive; they clearly state that there were faults in the approaches of the government, but their discussion is also balanced and future-looking in relation to outlining how the government can make use of the lessons learnt during the COVID-19 pandemic. Their calls for reform are based on evidence and practical realities of lived experiences. For any policymaker looking to reform the system of adult social care, this book is a crucial guidebook in relation to shortcomings and how policy and practice can be improved.

Overall, therefore, this is a methodologically innovative, conceptually rich and relevant book, but it would be remiss of me, when undertaking this review, not to say whether there are any limitations. I think that there is one important limitation, and this is accepted by the authors: there is a need for the direct voices of the services users themselves to play more of a role. McHale and Noszlopy explore the experiences of policymakers, social care professionals and carers in some detail, but the actual experiences of the people most impacted are not given as much attention as I think would be fitting. I accept that this would have been challenging, due to methodological and ethical issues, but the fact that their voices are not given more attention leads to a bit of a gap. Consequently, the book fails provide an emotional connection to those people and, importantly, to encapsulate how changes to adult social care policy and practice have had a direct impact upon them, on their lives. As mentioned, the authors accept this, and they hope that the book leads to future research where the key focus will be on the experiences of the service users themselves, including those beyond the West Midlands.

Conclusion: a blueprint for reform

To conclude, this book is an extremely important piece of research. It has done an exceptional job at linking theory, law, policy and empirical evidence. It provides a critical exploration of adult social care during the COVID-19 pandemic, and it begins the process of setting out a blueprint for reform, bridging law, theory and lived experience. This is a vital tool for policymakers stepping into the breach, attempting to change the way in which adult social care operates. For practitioners, the insights gained from the book are clearly important as a guide to improve day-to-day experiences. For legal scholars, this book offers a rigorous and thought-provoking account of one of the most over-looked realities of our time. It offers unique empirical insight into local-level care implementation and provides a novel integration of vulnerability theory with law and policy.

To return to the sad and poignant vista of relatives unable to visit care homes, unable to be present at the time of death, adults with social care needs not able to engage in formative and developmental activities due to COVID-19 restrictions, funerals confined to the barest of bare numbers, with no heralding of the life and light of a dead relative. This was the past – a sad and lonely past. It can be argued that most people did the best they could. Decisions were often made with the best of intentions. Some of these decisions were not the right ones and some people fell through the cracks of ill-conceived decision-making. But, that was the pandemic of the past. McHale and Noszlopy have succeeded in providing a blueprint for policy and practice in the area of adult social care in the event that pandemics strike again. Ultimately, McHale and Noszlopy’s work offers not only a critique of past failures but a rigorous, evidence-based framework for future reform. We can be grateful for that.