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 3 April 2020), but if there is something on here you think should be, and isn’t, please email me at alex.ruckkeene@39essex.com.

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.

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.

An initial overview of some of the key issues can be found in the article I did with Rosie Scott (24 March) here.  I have also discussed the interaction between the regulations that were introduced to restrict people to their own home (without reasonable excuse) and the MCA 2005 here (29 March).   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 hereThe recording of the first National Mental Capacity Forum COVID-19 rapid response webinar held on 1 April 2020 is now available here, along with the slides.

DHSC guidance

There is no specific DHSC guidance yet relating to the MCA 2005 and COVID-19, but this is forthcoming.  At Second Reading of the Coronavirus Bill on 24 March, Lord Bethell:

thank[ed] those noble Lords, including the noble Lord, Lord Oates, who raised the issue of the deprivation of liberty safeguards. We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus. Therefore, we have decided not to alter deprivation of liberty safeguards in primary legislation. However, we think that we can achieve significant improvement to the process through emergency guidance. That will include making clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment. We are especially grateful to the noble Baroness, Lady Finlay, and other experts, who have worked with us on this.

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) 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) 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 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.

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.

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. 

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

Myownfront 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.

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.

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).

Practical steps to manage DoLS

Pending further official guidance, and with thanks to Lorraine Currie, MCA and DoLS Manager for Shropshire County Council, guidance that Shropshire has issued in relation to managing DoLS where (for instance) face-to-face assessment is not possible can be found here.  It also includes (with thanks to Martin Sexton and the Salford DoLS Team), language that can be used in relevant reports to explain why the normal processes have not been followed.

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.

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.

Advance care planning 

Advance care planning is of importance at all times, 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.

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.

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.”

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

Other resources

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.

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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