RELEVANT CHAPTERS

Deprivation of Liberty Safeguards

Mental Capacity

RELEVANT INFORMATION

The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic (Department of Health and Social Care)

The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) during the Coronavirus (COVID-19) Pandemic: Additional Guidance (Department of Health and Social Care)

July 2020: This chapter was amended to add additional information from the Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) during the Coronavirus (COVID-19) Pandemic: Additional Guidance published by the Department of Health and Social Care in June 2020. The new information has been marked ‘Additional guidance – June 2020’.

1. Introduction

This chapter is a summary of The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic and The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) during the Coronavirus (COVID-19) Pandemic: Additional Guidance (Department of Health and Social Care) (click on the link to view the full guidance). It also states relevant case law.

The guidance is designed to support workers, councils, providers and NHS staff who are dealing with DoLs cases during the COVID 19 pandemic.

Please note:

  • the guidance is only valid for the coronavirus pandemic period;
  • it applies to those caring for adults who lack capacity to consent to care and treatment;
  • the principles of the MCA and the safeguards provided by DoLs still apply;
  • it does not make any changes to best interests decision-making (see Best Interests chapter).

2. Key Points of the Guidance

2.1 Consent

When making decisions during the pandemic about the care and treatment of people who lack the relevant mental capacity, staff should seek consent on all aspects of care and treatment to which the person can consent.

2.1.1 Best interest decisions (additional guidance June 2020)

Testing someone for COVID-19 who lacks the relevant mental capacity without their consent

In the first instance, all practicable steps should be taken to support the person to make the decision to be tested for COVID-19 for themselves. However, if this is not possible or is unsuccessful, then it may be appropriate to make a best interests decision under the MCA. When doing so, the decision-maker must consider all the relevant circumstances, including the person’s wishes, beliefs and values, the views of their family, and what the person would have wanted if they had the capacity to make the decision themselves. The decision-maker should make a record of their decision.

Best interest decisions should be made on an individual basis. No one should automatically assume that because it was in the best interests of one patient it will, therefore, be in the best interests of another, even if both cases share similar characteristics.

For many people, a best interests decision to test for COVID-19 will be the same as the decision that the person would have been expected to have taken themselves, if they had the capacity to do so. It is reasonable to think that most people leaving a hospital for a care home, with the relevant mental capacity to take the decision, would have agreed to testing, for the protection of their own health, and others around them.

There is currently no cure for COVID-19, but treatment, based on a positive test result, can improve lives (by reducing the seriousness of the illness and the length of time someone is suffering), and in some cases, save lives. Testing a patient who has no symptoms but who is at risk of infection, for example before they move to another setting, can also identify infection earlier and improve outcomes for that person. Decision-makers should consider this when making best interests decisions about testing.

The DoLS process will not apply to most patients who need life-saving treatment, including those with COVID-19. However, if more measures need to be put in place beyond that which a person who does not have a mental disorder would have, then the acid test may need to be considered (see Deprivation of Liberty Safeguards chapter).

2.1.2 If the person has made advance plans about life-saving treatment (additional guidance June 2020)

See also Section 2.2 Life-saving treatment, below.

Life-saving treatment cannot be given if it is against a valid advance decision to refuse treatment made by the person (see Making Advance Decisions chapter). A person (an attorney) who has a Lasting Power of Attorney (LPA) may have been given the power in the LPA document by the person who lacks capacity (the donor) to refuse life-saving treatment. Medical staff cannot, therefore, give treatment given if the attorney has this power and refuses the treatment on the donor’s behalf.

The person may have made advance written statements setting out their preferences, wishes, beliefs, or values in relation to life-saving treatment when they had capacity. Best interests decision-makers must consider these.

2.1.3 Who can refuse life-saving treatment on behalf of someone (additional guidance June 2020)

An attorney appointed under a LPA for health and welfare can only give consent or refuse life-saving treatment on the person’s behalf if they specifically stated in the LPA document that they want the attorney to have this authority. A court-appointed deputy can never refuse life-saving treatment.

2.1.4 Depriving a person of their liberty (additional guidance June 2020)

Interpreting the acid test

The acid test for a deprivation of liberty was set out in the Cheshire West ruling in 2014 (see Deprivation of Liberty Safeguards chapter). It stated that a person who lacks the relevant mental capacity to make decisions about their care or treatment arrangements is deprived of their liberty if they are:

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

The Court of Appeal has since commented that ‘not free to leave the accommodation’ means ‘not free to leave the accommodation permanently’:  (D) (A Child) 2017 EWCA Civ1694.

2.1.5 Independent Mental Capacity Advocate or Relevant Person’s Representative (additional guidance June 2020)

Those who are Independent Mental Capacity Advocates (IMCA) or Relevant Person’s Representative (RPR) should continue to represent and support the person who is or may be subject to the DoLS authorisation during the pandemic.

Wherever possible, the RPR or IMCA should use remote techniques to remain in contact with the person, for example, video calls. Face-to-face visits should only occur if absolutely necessary, for example, to meet the person’s specific communication needs, urgency, or if there are concerns about their human rights.

2.2 Life-saving treatment

Where life-saving treatment is being provided (including for the treatment of COVID-19) as long as this is the same treatment that would be given to a patient with capacity the person is not being deprived of their liberty.

Therefore, if a patient is unconscious, semi-conscious, or delirious and needs life-saving treatment (for COVID-19 infection or anything else), it is not likely that this would constitute a deprivation of their liberty.

2.2.1 Providing life-saving treatment (additional guidance June 2020)

Life-saving treatment refers to any treatment that is needed in order to stop the person from dying. In some cases, when a person becomes infected with COVID-19 this can be life-threatening. There is no cure at present for COVID-19, and so in these cases treatment to prevent the deterioration of their condition will be life-saving. This only applies where a person would die without the relevant treatment.

Case law

R (Ferreira) v HM Senior Coroner for Inner South London [2017]

In R (Ferreira) v HM Senior Coroner for Inner South London [2017], the Court of Appeal stated that there was no deprivation of liberty requiring legal authorisation (under Article 5 of the European Convention on Human Rights) where treatment or care:

  • results from the administration of life-saving treatment;
  • is unavoidable as a result of circumstances beyond the control of public bodies;
  • is necessary to avoid a real risk of serious injury or damage; and
  • is kept to the minimum required for the purpose of the treatment. This means the treatment must not be any different from that which would be given to a person with capacity.

Director of Legal Aid Casework et al –v-Briggs (2007) EWCA Civ 119

There will be no DOLs where P “so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore by virtue of their physical condition, they are unable to leave hospital”.

2.2.2 Department of Health and Social Care (DHSC) Guidance

The guidance states:

“ where lifesaving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would be normally given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19. During the pandemic, it is likely that such life-saving treatment will be delivered in care homes and 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 lifesaving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19”.

2.3 Changes to care

Changes to care and treatment, for example, life-saving treatment, or being moved from one care setting to another will not normally require a new DOLs application as either:

  • this would not be a deprivation of their liberty (see above). In this case, a new decision in the person’s best interest would be required; or
  • because there is already a DoLS authorisation in place. In this case, it may be necessary to review the authorisation if the changes to care and treatment are more restrictive.

2.3.1 Hospitals and care homes (additional guidance June 2020)

Reviewing a DoLS authorisation that covers someone’s existing arrangements, if there is a change to those arrangements because of the pandemic

During the pandemic, different arrangements may need to be put in place for a person under their existing DoLS authorisation. In many cases, changes to the person’s circumstances will not need to be reviewed during this period, as the authorisation that is already in place may provide the legal basis for any arrangements providing, they are not much more restrictive. For example, 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.

If the arrangements are much more restrictive, the delegated member of the care home staff should inform the Supervisory Body as soon as possible. In all other cases, it would be proportionate to delay reviews until it is reasonably practical to carry out the review, but if a review cannot be delayed for whatever reason, the member of staff should inform the Supervisory Body that a review needs to take place. If substantial conditions of the existing DoLS authorisations cannot be met during the pandemic, a review should be considered.

2.3.2 Applying the principles of the MCA when a person is being discharged from a hospital, to the first most appropriate care home available (additional guidance June 2020)

The Government has published Guidance on Hospital Discharge during the unprecedented context created by the pandemic.

See also the Government’s Action Plan for Adult Social Care in England. This provides further detail in relation to safe and appropriate care which should accompany hospital discharge, including advice on testing.

The guidance explains that, during the pandemic, people could face a reduced choice in their discharge setting and may be moved to an alternative setting ahead of their first choice of placement. In light of this, for a person who lacks the relevant capacity, a best interests decision under the MCA should still be made. Even though the options for discharge are reduced, the decision-maker must make the best interests decision in respect of all the available options. In doing so, they must consider all the relevant circumstances. No one should be discharged to somewhere assessed to be unsafe. For some people, the first appropriate care home could be the safest and most appropriate available option for them. For them, that placement is therefore likely to be in their best interests.

2.3.3 Other settings (additional guidance June 2020)

Changes to the arrangements for someone without the relevant mental capacity in settings other than care homes or hospitals

The same legal framework, provided by the MCA, also applies in other settings such as supported living. This can be used for determining best interests decisions and deciding if a change means that the person is being deprived of their liberty.

For example, someone who is not thought to be infected with COVID-19 may not have the relevant mental capacity to make decisions about self-isolation and social distancing. A best interests decision may be needed to consider if it is in the person’s best interests to ensure that they self-isolate. Again, this must be based on their individual circumstances. The acid test will need to be considered if there is reason to believe that the arrangements amount to a deprivation of liberty.

If the arrangements do mean the person is being deprived of their liberty, a referral should, in most cases, be made to the Court of ProtectionThe court has issued its own guidance for this emergency period. His Honour Mr Justice Hayden has produced 4 pieces of guidance on how the courts are dealing with COVID-19 pandemic COP Guidance No 1,13th March; No 2,18th March, No 3, 24th March; and Remote Hearings 31st March 2020.

2.4 Considering previous assessments when an assessor is unable to undertake a new assessment

(Additional guidance June 2020)

If an assessment has been carried out within the last 12 months (from when the new authorisation is being considered), then 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. However, great care should be taken in deciding to use a previous assessment and it should not be done routinely or without proper consideration of all the options. The older the assessment is (even within the previous 12 months), the less likely it is to be valid. It may not be appropriate to use previous best interests or capacity assessments again, without updating them, because normally they are more time- and context-specific than the others. Supervisory bodies should keep a record of cases where an older assessment (within the previous 12 months) is being relied upon, instead of a new assessment.

If an assessment was carried out prior to the last 12 months, then this can be considered as evidence to be taken into account for the purposes of the new assessment. The new assessment must be carried out by someone who meets the requirements set out in regulations for that assessment.

2.5 How supervisory bodies should manage the demand for DoLS authorisations, assessments and reviews during the pandemic

(Additional guidance June 2020)

During the pandemic, supervisory bodies should continue to consider DoLS authorisation referrals. The guidance recommends a number of changes to MCA and DoLS practice specific to the pandemic. These will reduce the number of DoLS authorisations that might otherwise have been requested, easing the pressure on supervisory bodies. These include:

  • assessments to inform new authorisations, where appropriate;
  • reviews: carrying out reviews remotely where possible; thinking about whether the review can be delayed at all; and prioritising reviews using standard prioritising processes;
  • supervisory bodies who consider DoLS applications and arrange assessments should continue to prioritise DoLS cases using standard prioritisation processes first.

2.5.1 Reviewing the authorisation (original guidance)

DHSC guidance states:

“(a) Does the person already have a DoLS authorisation, or for cases outside of a care home or hospital does the person have a Court Order? If so, then will the current authorisation cover the new arrangements? If so, in many cases changes to the person’s arrangements for their care or treatment during this period will not constitute a new deprivation of liberty and the current authorisation will cover the new arrangements, but it may be appropriate to carry out a review.

b) Are the proposed arrangements more restrictive than the current authorisation? If so a review should be carried out.

c) If the current authorisation does not cover the new arrangements, then a referral for a new authorisation should be made to the supervisory body to replace the existing authorisation. Alternatively, a referral to the Court of Protection may be required.”

Care and treatment should continue to be provided in the person’s best interests (see Best Interests chapter). The best interests principle aims to prevent harm to P.

Case law

Secretary of State for the Home Department –v- Skripal [2018] EWCOP6

The Home Office applied for a personal welfare order to authorise collection and testing of blood samples and the disclosure of medical records where the two patients were unconscious following a suspected nerve agent attack.

There was no evidence to assist the court in identifying the values and beliefs of the Skripals that might hold for the purposes of determining best interests. It was assumed that they would want to secure the best information in the investigation of a serious crime with the general aim of justice being done.  A reasonable citizen, if asked on these issues, would adopt or be influenced by ”the duties of a responsible citizen” that justice should be done.

2.5.2 DHSC DoLs guidance

The guidance states:

“Decisions-makers should avoid putting more restrictive measures in place for a person unless absolutely necessary to prevent harm to that person. DOLs cannot be used if the arrangements are purely to prevent harm to others.”

If the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, then public health powers should be used. If a person’s relevant capacity fluctuates, the public health powers may be more appropriate.

The Health Protections (Coronavirus, Restrictions) England Regulations 2020 state a person who:

  1. without reasonable excuse contravenes a requirement (restrictions on gatherings); or
  2. contravenes a requirement (no person may leave the place they are living without reasonable excuse), commits an offence.

See also Section 2.8, Emergency public health powers

2.6 Streamlined urgent authorisations

If a new or urgent authorisation is required, the usual DoLS process applies (see Deprivation of Liberty Safeguards chapter). However, there is a shorter form DoLS Urgent Authorisation Form – Covid19 for urgent authorisations for use during this period .

2.6.1 DHSC DoLs guidance

The guidance sates:

“In some cases, a new authorisation may be needed. In such cases, an urgent authorisation can come into effect instantly when the application is completed and lasts for a maximum of seven days, which can be extended for a further seven days if required.”

There are limits on the use of urgent authorisations; a seven-day extension is granted in exceptional circumstances such as the pandemic. It is acceptable to use the shorter form (see 2.4 above) for such authorisations.

2.7 Remote assessments by supervisory bodies

To reduce the risk of spreading the coronavirus infection, DoLS assessments and reviews should be carried out remotely where possible and appropriate. Remote assessment is acceptable. This could include telephone or video discussions. DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential. In all cases of remote assessment, it is important to consider how best to support the person.

Case law

BP –v—Surrey County Council & Anor [2020] EWCOP17

P’s daughter applied to the court for him to be discharged from a care home where he was living and a declaration that it was in his best interest to return home with a package of care.

The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 (right to liberty) and Article 8 (right to family).

The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Face time.

2.7.1 DHSC Guidance

The guidance states:

“To carry out a DoLs assessments and reviews, remote techniques should be used as far as possible, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration. Views should also be sought from those who are concerned for the person’s welfare.”

Assessments may also use evidence from previous assessments, if these are still valid. If information from previous assessments is used, this must be made clear. If the assessment was carried out within the last 12 months, this can be relied upon without the need for a further assessment.

It also states:

“Any authorisation in force (urgent or standard) is still applicable if the person moves within the same setting e.g. a change of ward. If the person moves to a totally different setting a new authorisation may be needed.”

Where the person is receiving end of life care, supervisory bodies should use their professional judgement as to whether an authorisation is necessary and can add any value to the person’s care.

“Where the person is receiving end-of-life care, decision-makers should use their professional judgment as to whether DoLs assessment are appropriate and can add any value to the person’s care and treatment.”

ReSPECT (Recommended Summary Plan for Emergency Care and Treatment) is a process that keeps under review personalised recommendations for a person’s clinical care in a future emergency, in which they are unable to make or express choices.

2.8 Emergency Public Health Powers

(Additional guidance June 2020)

The Coronavirus Act 2020 gives Public Health Officers (PHO) power take action (including screening, isolation, and restricting movements), of a person suspected or confirmed to be infected with COVID-19 who is not complying with public health advice.

If it is suspected or confirmed that a person who lacks the relevant mental capacity has become infected with COVID-19, it may be necessary to restrict their movements. In the first instance, those caring for them should explore the use of the MCA as far as possible.

If the person is in a hospital setting for assessment / treatment of a mental disorder, the person caring for them should consider if the Mental Health Act 1983 (MHA) is the appropriate legal framework to restrict their movements.

When considering the MCA and public health powers in the Coronavirus Act, the following principles provide a guide for which legislation is likely to be most appropriate:

(a) the person’s past and present wishes and feelings, and the views of family and those involved in the person’s care, should always be considered;

(b) if the measures are in the person’s best interests, a best interest decision should be made under the MCA;

(c) if the person has a DoLS authorisation in place, the authorisation may provide the legal basis for any restrictive arrangements in place around the measures taken. Testing and treatment should then be delivered following a best interest decision;

(d) if the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, advice needs to be sought from Public Health England on whether any restriction of the person’s movement (such as a requirement to self-isolate) is appropriate.

For Public Health England advice on the use of restrictions, staff should contact their local Health Protection Team.

2.8.1 If someone who lacks relevant capacity needs to be isolated because they have symptoms and are not following public health advice (additional guidance June 2020)

When a person who lacks relevant mental capacity is suspected or confirmed to have COVID-19, and they are presenting with symptoms, it is essential that the individual follows public health advice to prevent the spread of the disease and receives the necessary care available through the NHS and other care services. Outside of cases where the MHA is relevant, those caring for the person should explore the use of the MCA as far as possible for care and treatment moving forward.

When a person who lacks relevant mental capacity is suspected to have COVID-19 but does not have the recognised symptoms of the disease or is vulnerable to contracting COVID-19 and should follow public health advice (for example, to self-isolate), every effort should be made to ensure that they are supported in order to be able to understand what is being asked of them and therefore make the decision for themselves. This includes requesting the support of relevant carers, family, and friends.

For those who lack the relevant capacity, the first options to explore are the MCA and / or the MHA.  In some circumstances, it may be appropriate to seek further advice from Public Health England.

2.8.2 How emergency health powers will be used if the person lacks the relevant mental capacity (additional guidance June 2020)

When an HPT is contacted to enact the emergency public health powers in relation to a person who lacks the relevant mental capacity, the appropriate public health officer (PHO) will first confirm with the referrer that all avenues of the MCA and, where appropriate, the MHA have been explored, as in most cases the public health powers will not be the most appropriate legal framework.

Where it is confirmed that public health powers are the most appropriate option for the person, the PHO will:

(a) receive information about and consider the person’s past and present wishes and feelings;

(b) find someone appropriate who is close to the person, such as a family member, or someone involved in the person’s care, such as an IMCA or their key worker, to assist in supporting the person to be involved in the process as far as possible;

(c) always try to provide appropriate support to enable the person to make the decision for themselves;

(d) as far as possible, help the person to understand what is happening and involve them in each process;

(e) consider the person’s communication needs and adapt communication accordingly (the individual supporting the person may assist with this);

(f) when providing information to the person, provide this same information to the individual supporting the person, in line with data protection requirements;

(g) when assessing the person, the individual supporting them should attend the assessment, and where appropriate assist the person in answering the questions about their health and recent movements;

2.8.3 The right to appeal if someone is subject to emergency health powers and lacks the relevant mental capacity (additional guidance June 2020)

The use of restrictions under the Coronavirus Act 2020 on people who may be infectious will rarely need to be applied in the case of individuals who lack the relevant mental capacity, as the MCA and, in some cases, the MHA provides the legal basis for making decisions so as to be able to ensure that people can be tested for COVID-19 or to restrict the movement of those who have or are suspected to have the virus.

If restrictions or requirements under the Act are applied, an appeal may be heard in a magistrates’ court by anyone on whom a requirement or restriction is imposed. If someone lacks the capacity to make an appeal, it can be made by someone on their behalf. This may, in some cases, be necessary even if the person is not objecting or does not appear to understand that they can make a challenge.

Appendix 1: Decision Making Flowchart for Decision Makers in Hospitals and Care Homes

Click on the image to enlarge it.