The Mental Capacity Act and DoLS during the COVID-19 pandemic

April 9, 2020

Care providers and supervisory bodies responsible for DoLS requests need to be aware that the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards have not been changed by the Coronavirus Act 2020. They continue to apply in full.

Department of Health & Social Care guidance on how these provisions should be used during the COVID-19 emergency was published on 9 April 2020.

Some key points are summarised below, but the guidance should be read in full.

Scope of the guidance

  • The guidance is only valid during the COVID-19 pandemic and its content “should not become the new norm beyond the pandemic”. It applies until it is withdrawn.
  • It applies to all decision makers in England and Wales caring for or treating a person who lacks relevant mental capacity to consent. It also covers supervisory bodies.

 Approach to changes to care and treatment during the pandemic

The guidance recognises that, in the pandemic, changes may be needed to the usual care or treatment arrangements for someone who lacks mental capacity to consent. It says that:

  • A proportionate approach should be taken to all applications. Decisions must be made for specific individuals, not groups.
  • Consent to changes should be sought so far as the person is able to consent.
  • In most cases, the changes will not be a deprivation of liberty and no DoLS authorisation will be needed. Here, care or treatment should be provided in the person’s best interests.
  • In many cases, however, decision-makers will need to decide whether there is a deprivation of liberty, and, if so, whether a new DoLS authorisation/ court order is needed

Deciding whether there is a deprivation of liberty & whether authorisation is needed

  • A flow chart at Annex A provides a quick guide to making these decisions. Pages 5 to 7 provide more detailed advice.
  • Regarding life-saving treatment, the Department of Health & Social Care’s view, based on Ferreira, is that
    • where life-saving treatment is being provided (including for COVID-19) and that treatment is the same as would normally be given to a person without a mental disorder, there will be no deprivation of liberty [9].
    • However, if additional restrictive measures are in place during treatment consideration should be given to whether there is a deprivation of liberty [11].

Process for obtaining DoLS Authorisations/ court orders

  • Annex B provides a new, shortened, form for granting, and requesting extensions to, urgent DoLS authorisations. Otherwise providers should follow normal DoLS processes.
  • The procedure for standard DoLS authorisations remains the same – although changes should be made to the way that assessments are conducted (see below).
  • Where a DoLS authorisation cannot be made (e.g. in settings other than hospitals or care homes), an application should normally be made to the Court of Protection. The guidance refers to Court of Protection guidance on applications in the emergency.

Conducting assessments

  • The guidance says that DoLS assessors should not visit care homes or hospitals unless a face-to-face assessment is essential.
  • Remote techniques should, it says, be used as far as possible and if “appropriate and relevant”, evidence from past assessments can be considered. See page 9 for details.

Coping with additional pressure during the COVID-19 emergency

  • Supervisory Bodies should, the guidance says, take a proportionate approach to all DoLS applications (new or existing) and continue to prioritise DoLS cases, using standard prioritisation processes first.
  • The DHSC’s (untested) view is that as long as providers can demonstrate that they are providing good quality care and treatment for individuals, and follow the principles of the Mental Capacity Act and Code of Practice, then, “…they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights(p.8 [21]).

Emergency public health powers

  • The guidance gives the Department of Health & Social Care’s view on which powers (Mental Capacity Act or public health) are appropriate for restricting a person’s movements where they lack relevant capacity and it is suspected or confirmed that they have coronavirus. Details are at pp.9-10.
  • In summary, the guidance is that:
    • Carers should begin by considering whether the Mental Capacity Act can be used
    • If the restrictions are in the person’s best interests, it may be possible to make a best interests decision and/or rely on a DoLS authorisation
    • If the reasons for the isolation are purely to prevent harm to others or maintain public health, then public health officer powers should be used. These powers may also be more appropriate if a person’s relevant capacity fluctuates.