In a welcome development, the DHSC’s MCA/DoLS guidance has now been further added to to include a specific section about appeals against orders made under Schedule 21 to the Coronavirus Act 2020. It has been a running concern that it was not obvious, on the face of the Act, how a person subject to a direction from a Public Health Officer (as to which, see further here) could appeal if they lacked the requisite mental capacity to do so. The additional MCA/DoLS guidance now provides that:
The right to appeal if someone is subject to emergency health powers and lacks the relevant mental capacity
The use of restrictions under the Coronavirus Act 2020 on potentially infectious individuals will rarely need to be applied in the case of individuals who lack the relevant mental capacity, as the MCA and, in some cases, the MHA provides the legal basis for making decisions in order to ensure that individuals can be tested for COVID-19 or to restrict the movement of individuals who have or are suspected to have the virus.
If restrictions or requirements under the Coronavirus Act 2020 are applied, an appeal may be brought to a magistrates’ court by any person on whom a requirement or restriction is imposed. If someone lacks the capacity to make an appeal, it can be made by someone or some authority on their behalf. This may, in some cases, be necessary even if the person is not objecting or does not appear to understand that they can make a challenge.