Many were surprised that the Coronavirus Act 2020 had no mention of the Mental Capacity Act (MCA) or the Deprivation of Liberty Safeguards (DoLS) (in England, there were some changes in Northern Ireland), given that it would be likely that there would be increased pressure on the already over worked DoLs system.

When the Act was being debate in parliament, the health minister, Lord Bethell, said:

 “We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus.

Therefore, we have decided not to alter deprivation of liberty safeguards in primary legislation. However, we think that we can achieve significant improvement to the process through emergency guidance. That will include making clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment.”

Since March BIHR have been responding to the need for support on what the legal changes and guidance issued during COVID-19 mean for people with care and support needs, and the staff in health, care and social work who now have to make difficult decisions. Read more on our Coronavirus Hub here. Having already trained over 200 social workers and Occupational Therapists, we know that staff have been waiting guidance on how to care for or treat people with mental capacity issues during COVID-19. Today (9 April, 2020) the Department of Health and Social Care has published this “Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity.” You can read the guidance here

What is in the Guidance?

The first key thing to point out is that there have been no changes to the Mental Capacity Act (MCA) itself, the Act as a whole remains in force. This is important as other legislation such as the Care Act has been significantly changed under the Coronavirus Act. This means that the key safeguards included in the MCA such as involving the person in the decision making process and the requirement to have regard to if this is the less restrictive option for the person's rights and freedom of action remain in force.

Key Points from the Guidance

  • This guidance is only valid during the COVID-19 pandemic, it expressly states that the guidance  “should not become the new norm beyond the pandemic.”
  • Any decisions must be taken specifically for each person and not for groups of people - there should not be blanket policies.
  • Decision makers must take a proportionate approach to all DoLs applications, including those made before and during the pandemic.
  • For lifesaving treatment for COVID-19 (as long as the treatment is the same as would be given to any person) DoLS will not apply.
  • It may be necessary to change a person’s usual care and treatment arrangements; in most cases, where the person lacks capacity to consent to these changes a new DoLS authorisation will not be required. This could include moving someone to a new hospital or care home.
  • The guidance offers a flowchart to help decision makers decide whether new arrangements, caused by COVID-19 constitute a deprivation of liberty, and whether a new DoLS authorisation may be required. 
  • If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations. There is a shortened Urgent Authorisation form at the end of the guidance to be used during emergency period.
  • DoLS assessments or reviews could be carried out by “telephone or videocalls where appropriate to do so, 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.”
  • Care and treatment should continue to be provided in the person’s best interests. 
  • During the pandemic staff should still “seek consent on all aspects of care and treatment to which the person can consent.” 

Some welcome points:

What this guidance does, essentially, is reiterate that the MCA and all of the principles within it still apply. It does well throughout to reinforce the human rights principles of necessity and proportionality (and it's sister phrase: least restrictive option). It is clearly stated that decisions must be taken on an individual by individual basis and never for groups of people; given reports of blanket approaches during COVID-19, this is welcome. The guidance also offers clarity on when a new DoLS authorisation would be needed for someone during COVID-19, and when it would not. On paper, this upholds human rights principles in that a review and potential new authorisation would be needed if the restriction became more restrictive and that the acid test on what a deprivation of liberty is still applies. This is test is when a person is subject to continuous control and supervision by public authorities/services and they are not free to leave. 

Some initial human rights concerns from us:

  • How do people or practitioners know how to determine the acid test of not being free to leave the accommodation, and under continuous supervision during COVID-19? When does supporting someone to self-isolate become a deprivation of Liberty? The Guidance does not offer much support in this.

  • The urgent authorisation process offers practical help for staff. However, the wording of when this needs to submitted; “as soon as is practically possible after the deprivation of liberty has been identified and started,” offer little safeguards for the person being deprived of their liberty.

  • Finally, the statement in section 21 of the guidance, which is the only reference to human rights throughout, is worrying:

 “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.”

From our work with people with care and support needs, their families and carers, as well as staff in health, care and social work, we know that human rights are not always upheld under the current MCA and DoLs system. These systems will be under even more pressure due to Covid-19. It is too rarely remembered that the Human Rights Act (HRA) places a legal duty on public authorities and service providers to respect and protect human rights. And that is operates as a foundation law, which means that all other laws, including the Coronavirus Act and the Mental Capacity Act, have to be applied compatibly with human rights. It is important to remember that this is reflected explicitly in the Coronavirus Act which specifically notes that suspension of Care Act duties must not breach human rights.  

The human rights legal duty is far greater than simply providing “good quality care and treatment.” It cannot be assumed that if the  MCA is followed, there will be no breach of the right to liberty under Article 5 of the HRA. Indeed we have found that human rights issues arise when laws are applied without consideration of people's human rights. 

What next:

We will be analysing the Guidance in more detail, and incorporating this into our current online training and support for people with care and support needs, advocacy and community groups, and staff in health, care and social work. Find out more on our Coronavirus Hub, here.