Working within the Mental Capacity Act during the coronavirus pandemicJuly 16, 2020
No changes to Mental Capacity Act (MCA) & Deprivation of Liberty Safeguards (DoLS) legislation in England have been made.
It is recognised that during the Coronavirus (COVID-19) pandemic many providers are under increased pressure and working in very difficult circumstances. Good use of the Mental Capacity Act can help providers support people using services around areas of consent and decision-making, and in upholding human rights.
Providers should still assume capacity for a wide range of decisions unless there is evidence to suggest otherwise. Providers should refer to the latest government guidance on MCA and DoLS in relation to coronavirus issues. Providers should still seek consent on all aspects of care to which the person can still consent.
Issues that should be considered when thinking about care and treatment that might involve restrictions because of coronavirus
Imposing social distancing, restrictions on movement, or isolation in response to coronavirus (for example confining a person to a room) may not in itself amount to a deprivation of liberty.
Before deciding whether to apply for an authorisation of deprivation via the DoLS process (if the person is in a care home/hospital) or Court of Protection (if the person is in a community setting, for example, supported living), providers should consider the acid test in the usual way: ‘is the person subject to continuous supervision and control?’ and ‘Is the person free to leave?’
Care and treatment may often be given to a person who lacks capacity to consent to it in their best interests without causing a deprivation of liberty – we do not advocate the use of sedative medicines or physical restraint to deprive people of their liberty. Providers should avoid depriving someone of their liberty unless it is absolutely necessary and proportionate, both because of the likelihood of harm and to the seriousness of that harm to the person. Decisions about mental capacity and DoLS must be taken specifically for that person and not for groups of people. Providers should continue to refer also to the codes of practice.
Providers should also note that where life-saving treatment is being provided in a care home or hospital, including for the treatment of coronavirus, then the person will not 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 because of the application of the Ferreira court judgement. The DoLS would therefore not apply in the vast majority of such cases.
Cases where DoLS authorisations have already been granted
Most changes to a person’s care or treatment during the pandemic period would not constitute a new or changed deprivation of liberty – the current authorisation will likely cover changed arrangements; however, a review may be necessary in order to decide if a new authorisation is needed to replace the existing one.
Impacts of the Coronavirus Act 2020
The Coronavirus Act gives powers to Public Health officers to impose restrictions and requirements on a person who may be suspected or confirmed to have coronavirus.
If a person is reasonably suspected as being “potentially infectious” (as defined in the Coronavirus Act) it is crucial for service providers to contact the NHS in the first instance to ensure the individual receives the right care at the right time. Every effort should be made to ensure the individual fully understands what is being asked of them and in a format they understand. Carers, family and friends can assist in explaining if the individual needs support.
When deciding whether to use the MCA or the Public Health Powers to lawfully restrict a person’s movements, consideration should be given to the person, family and carers wishes and feelings; whether a best interests decision applies; and whether there is an existing DoLS authorisation in place – these factors point towards using the MCA.
If all options have been exhausted and if the individual concerned continues not to follow public health advice, advice can be sought on what restrictions may be imposed from Public Health England (PHE).
Providers should continue to notify CQC of the outcome of a standard DoLS application once it is known. There is no need to tell us at the application stage or about urgent self-granted authorisations.
Providers should continue to check the latest government guidance on MCA and DoLS during the pandemic. Care home providers should also refer to this update on coronavirus testing in care homes.Last updated:26 May 2020