Further Thoughts on the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 Pandemic

May 5, 2020

 Unlike the Care Act 2014, the Mental Capacity Act 2005 (“MCA 2005”) and the Deprivation of Liberty Safeguards (“DoLS”) have not been altered by the Coronavirus Act 2020 (“CVA 2020”).[1] Therefore the challenges for practitioners concern the practicalities of how the existing regime applies during the COVID-19 crisis, rather than new legislative changes.

Emergency guidance was chosen as the principal way to address these challenges,[2] and this was published on 9 April 2020. See The Mental Capacity Act (2005)(MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic (“the guidance”). The Department of Health & Social Care’s (“DHSC”) policy paper COVID-19: our action plan for adult social care contains further details how care providers will be supported during this period.

Summary of Emergency Guidance

The guidance applies to those “caring for adults who lack the relevant mental capacity to consent to their care and treatment”. It is only valid “during the Covid-19 pandemic” and will end as soon as it is withdrawn by the DHSC.

The guidance sets out the following general principles:

  1. The principles of the MCA 2005 and DoLS safeguards continue to apply during the Covid-19 pandemic.
  2. All decision-makers caring for, or treating, a person who lacks the relevant mental capacity are responsible for implementing the government public health advice on social distancing and staying at the place where they are living. See the government guidance here. Care and treatment arrangements may need to be adjusted to implement that advice.
  3. New arrangements may be more restrictive than they were. It is important that any decision made under the MCA 2005 is made in relation to that individual. Decisions cannot be made about groups of people.

The guidance also addresses the following specific issues:

  • The nature of changes to care and treatment arrangements
  • The need for new DoLS authorisations resulting from these changes
  • How DoLS authorisations are to be obtained
  • How DoLS assessments are to function remotely
  • The application of Ferreira to life-saving treatment during the COVID-19 pandemic

These and other issues are considered below, plus best practice for care providers and some further issues to consider.

Changes to Care and Treatment Arrangements

The guidance acknowledges that during the pandemic it may be necessary to change a person’s usual care and treatment arrangements in order to, for example:

  • Provide treatment to prevent deterioration when they have or are suspected of having COVID-19
  • Move them to a new hospital or care home to better utilise resources, including beds, for those infected or affected by COVID-19
  • Protect them from becoming infected with COVID-19
  • Implement the government’s social distancing and shielding advice

Life-Saving Treatment

Where the changes to a person’s arrangements involve life-saving treatment, whether to treat COVID-19 or otherwise, the DoLS regime does not apply if the treatment is materially the same as would be given to someone without a mental disorder: see R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31. A person who is semi-conscious or unconscious and needs life-saving treatment is therefore highly unlike to be deprived of liberty. They must be treated based on a best interests decision. That is unless they have made a valid advance decision to refuse the specific treatment in question.

Deprivation of Liberty

Where the new arrangements do not involve life-saving treatment, decision-makers will have to determine whether they amount to a deprivation of liberty. This will be decided by reference to the acid test in Cheshire West. That is, a person lacking capacity will be deprived of their liberty where, as a result of additional restrictions placed on them because of their mental disorder, they are:

  • not free to leave the accommodation, and
  • under continuous supervision and control.

Annex A to the guidance provides a helpful flowchart for decision-makers in care homes and hospitals. It sets out that new arrangements may be authorised by an existing authorisation and a best interests decision where they:

  • constitute a deprivation of liberty; but
  • are no more restrictive than previous arrangements for which there is a valid DoLS authorisation

A new DoLS authorisation will be needed, however, if:

  • there is no existing DoLS authorisation or
  • the new arrangements are not authorised by a past DoLS authorisation

DoLS Authorisations

The guidance provides a shortened form for urgent authorisations from supervisory bodies (and extensions to urgent authorisations) at Annex B. It makes no changes to the process for a standard authorisation, which, it says, “should be followed as usual”.

Supervisory bodies are “well practised in prioritising DoLS applications”. During the pandemic, while staff may be deployed elsewhere to deal with other urgent front-line matters, supervisory bodies will need to take a “proportionate approach to all DoLS applications” including existing applications, and those generated because of the pandemic.

If there is an equivalent assessment that was carried out less than 12 months ago and there is no reason to think it may no longer be accurate, it can be relied upon and there is no need for a further assessment. If a new assessment is required, it may take into account evidence from previous assessments, where appropriate and relevant. The assessor must judge whether the evidence from the prior assessment is still relevant and valid to inform their current assessment. The assessor should note and reference their use of the previous evidence.

Public Health Powers

The guidance indicates that where restrictive measures (including screening and isolation) are used only to prevent infection and/or harm to others, the public health powers under Schedule 21 to the Coronavirus Act 2020 should be used.

Best Practice

These are uncertain times and the changes the pandemic may have on the day-to-day decisions of frontline staff may be cause for concern. However, paragraph 21 of the guidance provides a helpful steer on best practice during this period. It states:

“Fundamentally, it is the Department’s view that as long as providers can demonstrate that they are providing good quality care and treatment for individuals and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights.”

Therefore providers should seek to apply the existing principles to the new scenarios, and focus on providing good quality care and treatment for individuals.

DoLS Assessments

The guidance states that “DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential.” This clearly reflects the desire to comply with the government social distancing guidance and the concern expressed early on by Michelle Bachelet, the UN High Commissioner for Human Rights, that coronavirus “risks rampaging through [residential care facilities’] extremely vulnerable populations”. This presage is unfortunately proving accurate[3] and efforts to undertake virtual assessments are being increased.

The guidance suggests using remote techniques for DoLS assessments such as telephone or videocalls, where possible. The person’s communication needs must be taken into account. Further information on the modes of communication that health and social care can use is available on the NHS’ website here and in the DHSC’s publication COVID-19: our action plan for adult social care [§42].

Changes to the Best Interest Calculation?

The concerns raised above about the disproportionate impact of coronavirus on care homes means that a supervisory body may have to consider whether removal from the care home into a community placement or elsewhere is the best option for the individual. Under paragraph 50(2) of Schedule A1 to the MCA, a standard authorisation can only be given if continued detention is in the person’s best interests. Clearly, the person’s continued detention will have to be carefully weighed against removal, when considered against the factual backdrop.

 

[1] Section 10 CVA 2020 contains modifications to the Mental Health Act 1983, and corresponding legislation in Scotland and Northern Ireland. These are contained in Schedules 8, 9, 10, 11.

[2] HL Deb 24 March 2020, vol 802, col 1734,  <https://hansard.parliament.uk/lords/2020-03-24/debates/8570A6D4-3516-4114-B70C-A57638B56C08/CoronavirusBill>

[3] Robert Booth, ‘Half of coronavirus deaths happen in care homes, data from EU suggests’ (The Guardian, 13 April 2020) < https://www.theguardian.com/world/2020/apr/13/half-of-coronavirus-deaths-happen-in-care-homes-data-from-eu-suggests> accessed 24 April 2020.