The DHSC’s eagerly anticipated emergency guidance on The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic was published on 9 April 2020. I reproduce the key points below:
- This guidance is only valid during the COVID-19 pandemic and applies to those caring for adults who lack the relevant mental capacity to consent to their care and treatment. The guidance applies until withdrawn by the Department. During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
- Decision makers in hospitals and care homes, and those acting for supervisory bodies will need to take a proportionate approach to all applications, including those made before and during the pandemic. Any decisions must be taken specifically for each person and not for groups of people.
- Where life-saving treatment is being provided, including for the treatment of COVID-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder. The DoLS will therefore not apply. It may be necessary, for a number of reasons, to change the usual care and treatment arrangements of somebody who lacks the relevant mental capacity to consent to such changes.
- In most cases, changes to a person’s care or treatment in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person’s best interests.
- In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:
(a) If new arrangements constitute a ‘deprivation of liberty’ (most will not).
(b) If the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation may be required (in many cases it will not be).
- This guidance, particularly the flow chart at Annex A, will help decision makers to make these decisions quickly and safely, whilst keeping the person at the centre of the process.
- If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations. There is a shortened Urgent Authorisation form at Annex B which can be used during this emergency period.
- Supervisory bodies who consider DoLS applications and arrange assessments should continue to prioritise DoLS cases using standard prioritisation processes first.
- DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential. Previous assessments can also be considered as relevant evidence to help inform the new assessments.
The guidance also includes the DHSC’s approach to the interaction between the MCA and public health legislation:
If it is suspected or confirmed that a person who lacks the relevant mental capacity has become infected with COVID-19, it may be necessary to restrict their movements. In the first instance, those caring for the person should explore the use of the MCA as far as possible if they suspect a person has contracted COVID-19. The following principles provide a guide for which legislation is likely to be most appropriate:
(a) The person’s past and present wishes and feelings, and the views of family and those involved in the person’s care should always be considered.
(b) If the measures are in the person’s best interests then a best interest decision should be made under the MCA.
(c) If the person has a DoLS authorisation in place, then the authorisation may provide the legal basis for any restrictive arrangements in place around the measures taken. Testing and treatment should then be delivered following a best interest decision.
(d) If the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, then PHO powers should be used.
(e) If the person’s relevant capacity fluctuates, the PHO powers may be more appropriate.
If the public health powers are more appropriate, then decision makers should contact their local health protection teams (https://www.gov.uk/guidance/contacts-phe-health-protection-teams).