The DHSC’s MCA/DoLS guidance has been updated on 7 September, in particular to make clear that remote assessment is not now expected to be the sole way of proceeding. In material part, the guidance provides that:
To carry out DoLS assessments and reviews, remote techniques can be considered, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration. Views should also be sought from those who are concerned for the person’s welfare.
Face-to-face visits by professionals are an important part of the DoLS legal framework.
These visits should currently occur if needed, for example to meet the person’s specific communication needs, urgency or if there are concerns about the person’s human rights.
When deciding whether or not to visit in person, DoLS best interests assessors and mental health assessors should work closely with hospitals and care homes to decide if visiting in person is appropriate, and how to do this safely. Visiting professionals should understand and respect their local visiting policies. Visitors must follow important local infection control policies in the setting that they visit, which are based on national government guidance.
DoLS best interests assessors and mental health assessors should work collaboratively with hospital and care home staff. They should be mindful of their distinct, legal duties under DoLS.
The additional guidance has also been updated to address the fact that in some cases testing and other necessary measures will be needed for the purposes of procedures like elective surgery.
For example, a person may lack the relevant mental capacity to consent to testing and self-isolation, before or after an appointment or surgery as an NHS inpatient. In this case, the decision-makers with responsibility for the person before and/or after the procedure, including family, care home staff and other professionals will need to work collaboratively with NHS professionals and consider what is in the person’s best interests. They may conclude that it is in the person’s best interests to follow infection control procedures mandated by the hospital, in order to ensure that the procedure goes ahead. Joint working and communication will be important in these cases, as the hospital will be dependent on these decision-makers, in care homes and other settings, to ensure that these decisions are taken and implemented at the right time.
The additional guidance also reflects the expectation that, in line with assessors, RPRs should undertake face-to-face visits if needed, for example to meet the person’s specific communication needs, urgency or if there are concerns about their human rights.
The updated guidance can be found alongside other relevant guidance on my MCA/COVID-19 resources page here.