Written 14 May 2020. Updated 4 January 2021.

Download a PDF of the Explainer here.

The Coronavirus Act, which came into force on 25 March 2020, made many temporary changes to health and social care legislation across the UK. However, it made no changes to the Mental Capacity Act (MCA), which remains in force as a whole, or the Deprivation of Liberty safeguards (DoLS).

On 9 April 2020, the Department of Health and Social Care published Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity during Covid-19. The Guidance was last updated on 24 December 2020. The Department of Health and Social Care also published an Easy Read version of the Guidance on 29 May 2020. This explainer will outline the key takeaways of this Guidance and its relevance for human rights. This Explainer is relevant in England and Wales.

What is the Mental Capacity Act?

The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over. For more information please see this NHS page on the Mental Capacity Act.

Examples of people who may lack capacity include those with:

  • dementia
  • a severe learning disability
  • a brain injury
  • a mental health illness
  • a stroke
  • unconsciousness caused by an anaesthetic or sudden accident

The MCA 2005 was amended by the Mental Capacity (Amendment) Act 2019. This amendment act changes the safeguards from DoLS to Liberty Protection Safeguards. The changes were expected to come into force after consultation processes in October 2020, but this has been delayed. The new Liberty Protection Safeguards are now expected to come into force in April 2022. The UK Government have published guidance, 'Liberty Protection Safeguards: what they are', where you can find out more.

What are DoLS?

Deprivation of Liberty safeguards (DoLS) exist to ensure that people assessed as lacking capacity do not have their liberty taken away without rights respecting safeguards in place. DoLS should ensure that all decisions about a person's care, treatment or residence are decided in a way which ensures their best interests, is accessible to the person and is open to challenge amongst other safeguards.

What is the guidance on mental capacity during Covid-19?

On 9 April, the Department of Health and Social Care published emergency guidance, 'The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic'. The Guidance has since been updated, most recently on 24 December 2020.

The guidance is written for health and social care staff in England and Wales who are caring for, or treating, a person who lacks the relevant mental capacity during the coronavirus outbreak. The guidance ensures that decision makers are clear about the steps they need to take during this period, with a focus on new scenarios and potential ‘deprivations of liberty’ created by the outbreak.

Importantly, the guidance makes clear that the MCA and all of the principles and safeguards within it still apply.

What does the guidance say?

The guidance makes the following important points:

  • The 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, a person will not be deprived of liberty as long as the treatment is the same as would be given to any person. DoLS will therefore not apply.
  • It may be necessary to change a person’s usual care and treatment arrangements, including people who lack capacity to consent to these changes. In most cases, such changes will not constitute a new deprivation of liberty, and a 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 (Annex A to the guidance).
  • 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” In such instances, “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.”

An additional guidance document, last updated on 29 May highlights the importance of DoLS independent mental capacity advocates (IMCAs) and relevant person’s representatives (RPRs) continuing their roles during the pandemic. Wherever possible, the RPR or IMCA should use remote techniques to remain in contact with the personbut sometimes face-to-face contact will be needed. For example, “to meet the person’s specific communication needs, urgency or if there are concerns about their human rights.”

 The additional guidance document also looks at other issues including:

  • When can someone be tested for COVID-19 who lacks capacity to consent?
  • What does lifesaving treatment mean?
  • When does the provision of lifesaving treatment mean that the person is being deprived of their liberty?
  • Advance care plans and the refusal of lifesaving treatment
  • How should the acid test be interpreted?
  • When does a DoLS authorisation need to be reviewed?
  • How can the MCA principles be applied when a person is being discharged from hospital to a care home, in the context of ‘reduced choice’?
  • Changes in arrangements for those living outside of hospitals and care homes
  • How to isolate someone if they lack capacity to consent
  • How will emergency health powers be used if the person lacks the relevant capacity?

What does this mean for people?

As the MCA remains in force, the key safeguards included in the MCA also remain in force. These safeguards include 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. People who have been assessed not to have capacity should receive the same standard of care, provided in their best interests, throughout the pandemic. Consent should still be sought whenever on all aspects of care and treatment to which the person can consent.

The guidance clearly states 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.

From our work with people with care and support needs and 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. The HRA 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.

Which human rights are involved?

Human rights should be at the centre of all DoLS processes and reporting. Important rights which are engaged here include:

The right to liberty (Article 5 of the HRA)

Liberty can only be restricted in certain circumstances, for example in relation to mental health/capacity issues. When liberty can be restricted this must be authorised by a law (such as the MCA), and a set of safeguards need to be in place to ensure this is a fair and proportionate restriction. The question should always be: is this the least restrictive option to keep this person/or others safe?

Under the right to liberty, safeguards should be met when undertaking a DoLS in order to make it legal, including speedy and independent review of decisions to restrict liberty.

The right to respect for private and family life and home and correspondence (Article 8 of the HRA)

This covers people’s right to be involved in decisions about themselves, maintaining relationships with others and protecting well-being. According to NHS 2018-19 statistics, a DoLS process takes 147 days on average to be completed. This could lead to a situation where the individual is isolated from family, friends for a prolonged period of time. Again, this right can be restricted in some circumstances but the process for doing that must be rights respecting, i.e. it must be lawful, for a legitimate reason set out in the right itself, and importantly it should be proportionate. The longer the process takes, the more concern there is about how well the system is respecting people’s human rights.

The right to non-discrimination (Article 14 of the HRA)

This right must be used with another right in the HRA. At BIHR we call it a 'piggy-back' right. The right means that people receiving care should not be discriminated against when accessing care and when decisions about their care are made. Relevant questions to think about are: why is the decision to deprive someone of their liberty (for example) being made? Is it objective and reasonable? Or it is based on discriminatory reasons, such as a person’s learning disability, their mental health, their dementia diagnosis, etc.?

What happens now?

Going forward, it is really important to remember that the MCA has not been changed by the Coronavirus Act, and its safeguards continue to apply. The rights and duties contained within the HRA continue to be a foundation law, and the MCA must continue to be applied in ways which are compatible with our rights.

Where can I find more information?

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.