COVID-19 and the MCA 2005

This page includes resources relating to COVID-19 and the MCA 2005.   It will be regularly updated (most recently on 7 July 2020), but if there is something on here you think should be, and isn’t, please email me at alex.ruckkeene@39essex.com.

Introduction 

The key message is that the MCA 2005 is not, itself, changed by the current circumstances.  Nothing in the Coronavirus Act 2020 (for instance) changes the obligations imposed under it.  However, the Act is having to be applied in a different context, which will require all those involved to think creatively about how to secure its core principles, as well as to be clear (for instance) as to when a particular option is simply not available so that it does not fall for consideration as part of any best interests decision-making process.

A detailed overview can be found in this article that was published in April 2020 in the International Journal of Law and Psychiatry on ‘Capacity in the Time of Coronavirus.’  I have discussed the regulations restricting movements and their relationship with the MCA 2005 here

The 39 Essex Chambers Court of Protection team did a Rapid Response Guidance Note on COVID-19, Social Distancing and Mental Capacity (31 March), available here.  They have also done a Guidance Note on testing (4 May), available here

The National Mental Capacity Forum COVID-19 has held a series of rapid response webinars, recordings of which can be found here. A webinar that Neil Allen, Rachel Sullivan and I did in relation to the MCA and Covid-19 in mid-April can be found here, along with a subsequent ‘FAQ’ webinar we recorded with other members of the Court of Protection team in Chambers.

Note that this page does not include resources specifically relating to the Court of Protection and COVID-19, as there is a very useful resource page on Mental Health Law Online which is gathering these together.

DHSC guidance

The DHSC published emergency guidance on the MCA and DOLS during the COVID-19 pandemic on 9 April 2020.   The guidance focuses on new scenarios and new potential deprivations of liberty that may arise in consequence of COVID-19, as well as the practical steps that can be taken (within the framework of the un-amended MCA 2005) in relation to the authorisation of deprivation of liberty. My shedinar summarising and commenting upon the guidance (including its context and additional matters not covered within it) can be found here.

The DHSC updated (slightly) the guidance, and produced additional guidance, on 29 May 2020, in particular considering questions of testing and the interaction between the MCA and public health powers.  The DHSC also produced an easy read version of the guidance.  My shedinar summarising and commenting upon the guidance (including its context and additional matters not covered within it) can be found here.

In the COVID-19: Action Plan for Adult Social Care published on 15 April 2020, the DHSC emphasised that:

COVID-19 presents particular challenges in supporting people to make their own decisions, and where necessary making decisions in their best interests, in the context of protecting the person’s own health and reducing the risk of infection to others. During the pandemic, the principles of the Mental Capacity Act and the safeguards provided by the Deprivation of Liberty Safeguards still apply. Decisions made under the Mental Capacity Act must be made in relation to that individual and cannot be made in relation to groups of people. When making decisions during the pandemic about the care and treatment of people who lack the relevant mental capacity, staff should seek consent on all aspects of care and treatment to which the person can consent. Professionals need to understand the application of mental capacity legislation in the context of COVID-19 (see our guidance).

More broadly, a document published on 19 March, Responding to COVID-19: The Ethical Framework for Social Care, in essence, transplants the ethical framework developed for the healthcare response to pandemic flu to the social care context, by setting out a series of eight ethical values and principles which recognise that with:

increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making.

The guidance document includes (under the principle of respect) express reference to the MCA, requiring that:

where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf. 

The DHSC, together with Public Health England, the CQC and NHS England issued guidance (2 April, most recently updated 19 May and said to be due to be updated following the publication of the Adult Social Care Action Plan) on Admission and Care of Residents during COVID-19 Incident in a Care Home.  The guidance touches upon the MCA in the context of discharge from hospital (in the same terms as the NHS Guidance on Hospital Discharge set out below, but emphasising the need for proportionate assessments to enable timely discharge), and discusses such issues as isolation within the care home.  The guidance does not, however, address how isolation is to be implemented in the case of a person who lacks the capacity to make the relevant decisions (for more on this, see the 39 Essex Chambers Rapid Response Guidance Note here).

NHS Guidance

The NHS’s COVID-19 Hospital Discharge Service Requirements, (19 March, said to be due to be updated following publication of the Adult Social Care Action Plan) contains (at page 31) the following:

Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge.

NHS England published on 24 March a Clinical Guide for front line staff to support the management of patients with a learning disability, autism or both during the coronavirus pandemic – relevant to all clinical specialities.  It recognises that:

As a clinician working in other fields you may have had limited clinical contact with people with a learning disability or people with autism, however in 2018/19 at least 41% of people with a learning disability who died, died as a result of a respiratory condition.  There is therefore, strong reason to suspect that people with a learning disability may be significantly impacted by the coronavirus pandemic.

NHS England published on 25 March guidance (updated 8 April) on managing capacity and demand within inpatient and community mental health services for all ages.   It does not specifically address mental capacity, but reinforces the key message that:

People with mental health needs, a learning disability or autism should receive the same degree of protection and support with managing receive the same degree of protection and support with managing COVID-19 as other members of the population. This may mean providing additional support, including making reasonable adjustments.

NHS England published on 27 March, and then updated on 19 May, legal guidance concerning the impact of COVID-19 on the use of the Mental Health Act and supporting systems to safeguard the legal rights of people receiving mental health, learning disabilities and specialised commissioned mental health services.  The guidance cross-refers to the DHSC guidance, and also notes that:

Decisions about the application of the Mental Capacity Act 2005 (MCA) and MHA have always involved significant nuance and complexity. During the COVID-19 outbreak, providers and Local Authorities should follow their organisational policies to ensure the safety of staff and patients and decide on the appropriate use of the relevant legal framework on a case-by-case basis, with reference to organisational ethics committees or ethics forums and support from medicolegal and expert social work colleagues as required.

NHS England published on 11 May a Clinical guide for supporting compassionate visiting arrangements for those receiving care at the end of life, covering (in particular) the following settings: healthcare inpatient settings (including mental health and learning disability); care homes; hospices; and the person’s own home.  Whilst not specifically addressing those with impaired decision-making capacity, the guidance makes clear the measures it covers “assert the rights of the dying to see their loved ones and/or to receive religious support. They also aim to reduce the adverse impact on close family or friends of not visiting their loved one before death.”    NHS England published further guidance about visiting healthcare inpatient settings during the COVID-19 pandemic on 5 June 2020.

CQC guidance

The CQC suspended (on 16 March 2020) routine inspections, except in a very small number of cases where there is concern about harm, stating that it:

encourage[s] everyone to act in the best interests of the health of the poeple they serve, with the top priority the protection of life.  We encourage you to use your discretion and act in the best way you see fit (emphasis in original)

Details of how the CQC will be operating at present can be found here.  It also has set out how it will be monitoring DoLS at present (21 May) and a specific page about ‘working within the Mental Capacity Act during the Coronavirus pandemic,’ which notes under ‘Issues that should be considered when thinking about care and treatment which might involve restrictions because of coronavirus’:

Imposing social distancing, restrictions on movement, or isolation in response to coronavirus (for example confining a person to a room) may not in itself amount to a deprivation of liberty.

Before deciding whether to apply for an authorisation of deprivation via the DoLS process (if the person is in a care home/hospital) or Court of Protection (if the person is in a community setting, for example, supported living), providers should consider the acid test in the usual way: ‘is the person subject to continuous supervision and control?’ and ‘Is the person free to leave?’

Care and treatment may often be given to a person who lacks capacity to consent to it in their best interests without causing a deprivation of liberty – we do not advocate the use of sedative medicines or physical restraint to deprive people of their liberty. Providers should avoid depriving someone of their liberty unless it is absolutely necessary and proportionate, both because of the likelihood of harm and to the seriousness of that harm to the person. Decisions about mental capacity and DoLS must be taken specifically for that person and not for groups of people. Providers should continue to refer also to the codes of practice.

Office of the Public Guardian

The OPG has a page relating to its approach to Coronavirus, and published on 7 April guidance as to how NHS staff and local authorities can rapidly obtain details of its register of LPAs, EPAs and deputies.  It also published on 17 April guidance for attorneys and deputies as to their roles and responsibilities at present, and also guidance (updated on 7 July) as to making and registering LPAs during the outbreak, including detailed guidance about witnessing.

SCIE

The Social Care Institute for Excellence produced guidance (3 April, updated 29 April) on the MCA and COVID-19.  It has a comprehensive suite of resources on COVID-19 and social care, here.

Other guidance 

Supporting the person 

A practical resource to support explanation of the situation for those for whom pictorial communication aids are useful is this free e-book produced by the charity Books Beyond Words, which has also produced a range of other books of relevance available here.

The NDTI has produced a resource for people with autism and those supporting them.

Myownfrontdoor has a page collating resources and guidance relating to COVID-19 and learning disability.

Voiceability have made accessible their resources for advocacy, including as to how best to conduct advocacy from a distance, visits to care settings, and planning ahead.

Southern Advocacy Services have also made accessible two useful resources: (1) Guidance on advocacy under COVID-19 (taking into account the DHSC’s emergency guidance; and (2) a risk assessment for visiting.

Learning Disability England has a page on Keeping Informed and Staying in Touch during Coronavirus, including a video, together with further resources.

The Challenging Behaviour Foundation has resources, including a useful resource for families.   They have also published two extremely useful sets of answers from their legal panel to frequently asked questions that have been posed since the outbreak of the pandemic, which can be found here.

Include Me Too has an updated Hospital Communication Passport (and supporting resources) for individuals with disabilities who may be going into hospital (whether or not with COVID-19).

Creative plans to support contact between a resident in a care home and their family were endorsed by the Court of Protection in this case (the judge also emphasising the need for such steps to be taken to offset the impact of the necessary restrictions imposed upon visitors).  A practical step in some situations may be to take effective measures to disinfect an iPad or equivalent so that the family can send one into their relative: for disinfection control measures see here).

Lorraine Currie has a written a very powerful blog about supporting her adult daughter (who has an acquired brain injury) to walk through the COVID-19 landscape.

The Deaf Health Charity, SignHealth and online interpreting company InterpreterNow, have launched ‘BSLHealthAccess’ which enables the provision of immediate, on demand access to British Sign Language (BSL) interpreters for communication with deaf people in health settings free of charge during the current pandemic.

Remote capacity assessment

In circumstances where face-to-face assessment is not possible, it may still be possible to carry out an assessment remotely by a method such as Skype or Zoom.  The Court of Protection has confirmed that remote capacity assessment is acceptable for purposes of DoLS, as has the DHSC in its emergency guidance referred to above.

Lorraine Currie, the MCA/DoLS lead at Shopshire, has produced this extremely useful guide to conducting remote assessments from a local authority perspective (but equally useful for other professionals).   Lorraine and I, along with Chelle Farnan, did a webinar for the National Mental Capacity Forum on remote capacity assessment which can be found here.

This guidance from TSF Consultants gives some practical tips about ‘virtual’ capacity assessment.  [Please note that particular care will need to be exercised when deciding whether the person has capacity to consent to being recorded].

Mental health units 

The National Association of Psychiatric Intensive Care and Low Secure Units (NAPICU) has issued guidance (being updated on a regular basis) on managing acute disturbance in the context of COVID-19, including reference to the MCA at paragraphs 4.17-4.20, suggesting the prioritisation of public health measures over the MCA where measures are taken for the protection of others.

Public health and capacity 

Norfolk Safeguarding Adults Board has produced a very practical document:’Guidance for professionals when  a person is not following the guidelines on social distancing or  self-isolating  (Covid-19),’ including consideration of the position where the person has or lacks capacity, and complete with a useful flowchart to assist decision-making.

Advance care planning 

Advance care planning is of importance at all times (see the NICE Guidance here), but will be of particular importance in relation to those who are at particular risk of catching COVID-19, so that it is clear what they would, and would not, wish in terms of medical intervention, including admission to ICU and the treatments available on ICU.  This may not guarantee access to such intervention, but is going to be of very considerable importance in terms of assisting medical decision-making, as well as securing, insofar as possible, the right outcome for the individual at a point when they may have lost decision-making capacity.  However, advance care planning must be done correctly.  My video (8 April) seeks to outline how this can be done.

A joint statement by the BMA, Care Provider Alliance, CQC and the Royal College of GPs on advance care planning (31 March) can be found here.  It emphasises the importance of involving the person where they have the capacity to participate, and of involving family members or other appropriate individuals where they do not.  This is a critical point, and has been reinforced by letters from the National Director for Mental Health, NHSE-I, the National Clinical Director – Learning Disability and Autism NHSE-I and the Medical Director for Primary Care, NHSE-I (3 April 2020) and the Chief Nursing Officer for England NHSE-I and Chief Medical Officer NHSE-I (7 April 2020), the latter also emphasising that:

‘do not attempt cardiopulmonary resuscitation’ (DNACPR) orders […] should only ever be made on an individual basis and in consultation with the individual or their family.”  (see also in this the case of Winspear)

This was also reinforced in the Adult Social Care action plan (15 April 2020) set out above,

It is unacceptable for advance care plans, including Do Not Attempt Resuscitation orders, to be applied in a blanket fashion to any group of people, and the CQC have been urgently contacting providers where this practice has been brought to their attention. Everyone at risk of losing mental capacity or nearing the end of their life should be offered the opportunity and supported, if they wish, to develop advance care planning that make their wishes clear, and to make arrangements, such as lasting power of attorney for health and social care decisions, to put their affairs in order. This must always be a personalised process.  

In a Joint statement on personalised approaches to care and treatment (20 May 2020), Baroness Jane Campbell and James Sanderson, Director of Personalised Care for the NHS stressed that:

The outbreak of coronavirus does not change long-established best practice that decisions around care and access to treatment, including end of life care, are made on an individual basis and with clinicians, following the principles of personalised care.

Every individual should be provided with ongoing opportunities to participate in decisions that affect them. In relation to treatment decisions, patients should be supported to make informed decisions by the provision of clear advice on options from their clinicians, with family support or advocacy support if required and possible, and in compliance with the provisions of the Mental Capacity Act 2005 and related guidance where relevant.

This means people making active and informed judgements about their own care and treatment, at all stages of their life, and recognises people’s autonomy, as well as their preferences, aspirations, needs and abilities. This also means ensuring reasonable adjustments are supported where necessary and reinforces that the blanket application of do not attempt resuscitation orders is totally unacceptable and must not happen.

Where implemented, the ReSPECT process will be of importance (and is also of importance because it can be used even where a person does not currently have capacity).

Charities such as Compassion in Dying have resources to create advance decisions to refuse medical treatment.   For other resources on advance care planning, see the SCIE page here.

Baroness Finlay has written a guide for family members who are looking after a person who is dying at home with COVID-19, which may be of relevance, especially in circumstances where community palliative care teams are likely to be very stretched.  As she makes clear, it is to be used only “where it is absolutely clear and recorded in the person’s clinical record that he or she does not wish to be transferred to a hospital.”

More broadly, the National Centre for Post-Qualifying Social Work and Professional Practice has produced useful guidance on advance care planning which can be found here.

International human rights bodies

The wider international human rights community is producing a considerable body of guidance about the protection of the rights of people with disabilities in the pandemic.  This is very helpfully summarised by Dr Oliver Lewis here.  Oliver has also written an article setting out some very practical steps that might be applicable in some cases to think through whether it would be possible for a person in a care home to be assisted to live elsewhere to secure them against the risk of COVID-19.  

Other resources

I am doing a rolling series of short ‘webinars’ about key aspects of the MCA, the first of which, on mental capacity, can be found here, the second, on best interests, here, and the third, on deprivation of liberty, here.

Lucy Series’ website, The Small Places, is always a mine of information and resources relating to the MCA 2005. and she has – and will no doubt continue – to write about the MCA and COVID-19.

The wonderful Social Work, Cats and Rocket Science team have also written about Social Work, COVID-19 and Remaining Human.

Other resources about the MCA more broadly can be found on my website here, and on the SCIE website here.

An online training tool for capacity and best interests assessment developed by a passionate, and very knowledgeable MCA champion, Melba Gomes, can be found here (full disclosure, I am one of the talking heads on it).

Inclusion London has created a very helpful set of tools for deaf and disabled person’s organisations providing advice to individuals on rights, entitlements and sources of support.

For those who want an accessible guide to human rights, which are – ultimately – what frames both the obligations upon professionals and the limitations up their actions, I strongly recommend the British Institute of Human Rights’ Know Your Human Rights website.

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