Key COVID-19 legal developments in the health sector: Mental Capacity and Deprivation of Liberty

Published 6 January 2021

No amendments were contained in the Coronavirus Act in relation to the Mental Capacity Act 2005 (MCA) and the Deprivation Of Liberty Safeguards (DoLS). However, guidance has been given (published 9.4.2020, and updated several times since) by the Department of Health & Social Care (DHSC) (the Guidance) to apply only during the pandemic.

Key Points

• The Guidance reminds us that the MCA principles and DoLS continue to apply and decisions should continue to be person-specific not ‘blanket decisions’.

• The Guidance confirms that ‘in many cases it will be sufficient to make a best interests decision in order to provide the necessary care and treatment and put into place the necessary arrangements.’

• The Guidance has a specific section on decision-making about COVID-19 vaccination, including the importance of health professionals taking all practicable steps to support the person to make the decision for themselves and, where that is not possible, the factors to take into consideration when making a best interests decision about COVID-19 vaccination on the person’s behalf.

• It is highlighted that ‘where life-saving treatment is being provided, including for the treatment of COVID-19, then the person will not normally be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.’ This is, of course, based on the Ferreira judgment, which is particularly relevant in the ITU context. The Guidance goes on to state that ‘during the pandemic, it is likely such life-saving treatment will be delivered in care homes as well as hospitals, and it is therefore reasonable to apply this principle in both care homes and hospitals. The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent deterioration of a person with COVID-19.’

• The Guidance takes the view that where ‘usual’ care and treatment arrangements change ‘in most cases, changes…will not constitute a new deprivation of liberty and a DoLS authorisation will not be required.’

• So, decision makers will need to decide:

o if P’s arrangements constitute a deprivation of liberty (‘most will not’) and if so
o whether a new DoLS authorisation will be required ('in many cases it will not be’).

• If a new authorisation is required, the process legally remains the same, though a new Urgent Authorisation Form is introduced (Annex B). Face-to-face visits by professionals, for example for DoLS assessments, are described as ‘an important part of the DoLS legal framework’. During and after the national restrictions in England, visits by professionals can occur if needed, for example to meet the person’s specific communication needs, in urgent cases or if there are concerns about the person’s human rights. The guidance goes on to state that: “Decisions around visiting are operational decisions and ultimately for the providers and managers of individual care homes and hospitals to make. DoLS professionals should work closely with hospitals and care homes to decide if visiting in person is appropriate, and how to do this safely”. If an assessment has been carried out within the last 12 months (from when the new authorisation is being considered), this may be relied upon without a further assessment taking place as long as the Supervisory Body is satisfied that there is no reason why the previous assessment may no longer be valid, although this ‘should not be done routinely or without proper consideration of all the options’. If an assessment was done more than 12 months ago, then this can be considered as evidence to be taken into account for the purposes of the new assessment.

• Supervisory Bodies are advised to take a ‘proportionate approach’ to applications and can consider remote techniques, such as telephone or video calls for carrying out DoLS assessments and reviews where appropriate (see above for guidance on face-to-face assessments).

• One of the issues that often throws up dilemmas is whether the DoLS process should be used in end-of-life care. On this point the Guidance simply states: ‘Where the person is receiving end-of-life care, decision-makers should use their professional judgment as to whether DoLS assessments are appropriate and can add anything of value to the person’s care or treatment.’

• The Guidance also notes the emergency powers given to Public Health Officers (PHOs) under the Coronavirus Act to impose restrictions/requirements on a person suspected or confirmed to be infected with COVID-19 who is not complying with public health advice and suggests that, in the context of a person lacking capacity, PHOs should first confirm with the referrer that all avenues of the MCA and, where appropriate, the MHA, have been explored. In most cases, the public health powers in the Coronavirus Act will not be the most appropriate legal framework.

• Finally, the Guidance addresses the impact of the self-isolation regulations which came into effect on 28 September 2020, which make it a criminal offence not to self-isolate if notified to do so following a positive test for COVID-19 or if instructed to self-isolate because of contact with someone who has had a positive test result. On this issue, the Guidance notes that it is highly likely to be in the incapacitated person’s best interests to follow the self-isolation rules, although there may be some limited circumstances where it is not (e.g. if doing so would cause extreme distress). In such cases, every effort should be made to ensure the person follows any aspects of the self-isolation that can still be followed in their best interests. The Guidance goes on to say that, where a person does not have capacity to make a decision to self-isolate, it is likely they will have a reasonable excuse not to follow some aspects of an instruction, and will therefore not be committing an offence.

Summary

The Guidance states: ‘The Department recognises the additional pressure the pandemic will put on the DoLS system. 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’.

Whilst the Guidance provides a general ‘steer’ on the potential impact of COVID 19 in terms of the MCA/DoLS, it cannot, of course change the legal obligations imposed by the MCA/DoLS. Consequently, all care providers, Managing Authorities and Supervisory Bodies will need to take care that, even though ‘relaxations’ of elements of the process may be applied in practice, at the end of the day, they are still complying with their legal obligations.