Updated guidance issued on MCA and DoLS during the COVID-19 pandemic

Updated guidance was issued on 15 June 2020 by the Department of Health and Social Care covering important areas of the MCA and DoLS which have been directly impacted by the current pandemic:

Coronavirus testing an individual who lacks capacity

The guidance confirms that this will require a best interests decision and there should be no ‘automatic assumptions’ made. The benefits of identifying whether an individual is COVID-19 positive and the ability to access targeted treatment is a factor that should be considered. All best interests decisions should be recorded.

It also highlights that subsequent decisions in respect of self-isolation and/or social distancing would need to be taken as best interests decisions where the individual lacks capacity to make decisions in respect of these issues.

Treatment decisions

In the context of COVID-19 treatment which will prevent a deterioration in the individual’s condition, the guidance indicates that this will be considered as life-saving treatment. The rationale being that there is currently no cure and the infection can be life threatening.

It remains important to identify whether there is a lasting power of attorney in place for health and welfare as this may have given authority to an attorney to make decisions on the individuals behalf in respect of life-saving treatment. In those cases the attorney under the LPA will be the decision maker in respect of whether treatment can be given. Practitioners should always view a copy of the LPA document to confirm what decisions are to be made by an attorney.

The guidance also provides a reminder that where a person has made any advance written statements setting out their preferences, beliefs or values in relation to life-saving treatment then these must be considered when a decision is being taken on behalf of the person in their best interests. If there is a written advance decision to refuse some forms of life-sustaining treatment then practitioners need to make sure that they are clear about whether this applies to the treatments they are proposing.

Deprivation of liberty

The guidance confirms the position taken in R (Ferreira) -v- HM Senior Coroner for Inner South London and others [2017] EWCA Civ 31 (Arden and McFarlane LJJ, Cranston J). Where life sustaining treatment is being provided (which includes treatment for COVID-19), as long as the treatment is ‘materially the same’ as that which would be offered to an individual without a mental disorder, this will not amount to a deprivation of liberty.

The guidance goes further than restricting this to treatment with ICU and identifies that life-saving treatment can also be delivered in a care home setting and therefore the DoLS process would not apply to individuals requiring treatment to prevent deterioration with COVID-19 in both hospital and care home settings. 

In a situation where the care and treatment is materially different to that which would be given to an individual without a mental disorder then it will continue to be necessary to make an application for authorisation under the statutory scheme.

Where a DoLS authorisation is in place, the guidance sets out that whilst the arrangements in place may need to be varied in response to the pandemic this will not automatically result in the requirement for review unless those changes where considered to be much more restrictive. A helpful example is given in respect of contact:

‘limiting the person’s visits from family members or friends to prevent the spread of the virus but enabling them to contact them virtually instead would not be much more restrictive and would therefore not need to be reviewed during this period’

Reviews will continue to be required where substantial conditions of the existing authorisation cannot be met.

It is likely that during this time supervisory bodies will receive requests for further DoLS authorisations to be put in place, where assessors are unable to complete a new assessment. In those cases the guidance provides that an assessment dated less than 12 months prior can be relied upon as long as the supervisory is satisfied that there is no reason why this would not remain valid. The guidance advises supervisory bodies to keep a record of all cases where a previous assessment is being relied upon rather than a new assessment.

Supervisory bodies can utilise previous assessments which are dated more than 12 months prior to inform any new assessments being undertaken. 

For individuals currently living in supported living placements, the additional restrictions that may need to be implemented to effect self-isolation and/or social distancing make result in the arrangements being considered to amount to a deprivation of liberty. In those circumstances, an application would need to be made to the court to authorise those arrangements where the individual is assessed as lacking capacity to consent to the additional restrictions. 

IMCAs and RPRs

Maintaining contact with an individual who you have been appointed to represent as an RPR or support as an IMCA remains vitally important. The guidance encourages where possible for contact to be maintained using virtual techniques but recognises that face-to face meetings may be required in certain cases. Examples are given including the individuals communication needs, urgency or concerns regarding the individual’s human rights.

Hospital discharge

The existing guidance in respect of hospital discharges provides that an individual is to be discharged to the first most appropriate care home which becomes available. This guidance confirms that where an individual lacks capacity to consent to these discharge arrangements, a best interests decision must be taken between all available options, even though these are reduced.  Where the first available care home is confirmed to be safe and appropriate then it is likely to be considered in the person’s best interests to be discharged there.

Emergency public health powers

The guidance re-enforces that all efforts should be made to ensure that where an individual lacks capacity to consent to self-isolation and/or social distancing, they are supported to be able to understand what is being asked of them. This can include support from both carers and the individual’s family and friends.

Where needed, further advice can be sought your local health protection team (HPT) on the use of restrictions. The appropriate public health officer (PHO) will however first confirm with the referrer that all avenues of the MCA and, where appropriate, the MHA have been explored so it is important to have reviewed whether the individuals needs can be met using these legal frameworks.

It is anticipated that the use of restrictions under the Coronavirus Act 2020 will rarely need to be applied for individuals assessed as lacking the relevant mental capacity. In the event that the restrictions or requirements are applied, then the right to appeal can be exercised by someone or some authority on their behalf.

Comment

This guidance provides helpful clarity for practitioners in an area which is constantly evolving. There will continue to be issues which arise which are not covered explicitly by guidance and if you would like advice on a specific issue, please contact us. 

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.