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Home › FAQs › What is the guidance in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 pandemic?

What is the guidance in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 pandemic?

The Department of Health & Social Care has published guidance for hospitals, care homes and supervisory bodies on the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the coronavirus pandemic.

In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:

  • if new arrangements constitute a ‘deprivation of liberty’ (most will not), and
  • if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation will be required (in most cases it will not be).

If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.

A summary of the key points to be taken from the guidance is outlined below:

Use of the MCA and DoLS due to Covid-19

  • During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
  • It may be necessary to change the usual care and treatment arrangements, for example to provide treatment for people with Covid-19, to move them to a new hospital or care home to better utilise resources or to protect them from becoming infected.
  • All decision makers are responsible for implementing the emergency Government health advice  and any decision made under the MCA must be made in relation to a particular individual, it cannot be made in relation to groups of people.

Best interest decisions

  • In many cases, a best interests decision will be sufficient to provide the necessary care and treatment for a person who lacks the capacity to consent to the care and/or treatment arrangements during this emergency period.
  • If an individual has made a valid and applicable advance decision to refuse the treatment in question, then the relevant treatment, even for Covid-19, cannot be provided.

Delivering life-saving treatment

  • Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of Covid-19, 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.
  • The DoLS will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with Covid-19.

The full guidance can be found here.

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and with regards to business:
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Can apprentices be furloughed?

The government has stated that the scheme will apply to apprentices and that they can continue to train whilst they are furloughed. However you must pay at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage for all periods of training during furlough leave, taking into account the rate increases from 1 April 2020 and the increases which will take effect from 1 April 2021. This means that you will be responsible for any shortfall in the amount claimed under the scheme and the appropriate minimum wage.

We recommend that you get in touch to discuss any queries on furloughing apprentices.

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Crucially the phrase “force majeure” has no specific meaning in English law. As a result, there is scope for complex legal argument, including as to whether the effects of the coronavirus outbreak can amount to force majeure in the first place. If the coronavirus crisis deepens, force majeure provisions could become relevant in the following ways:

  • suppliers to your business might seek to invoke force majeure
  • you may need to invoke force majeure under your own contracts

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Can employers reduce their pension contributions?
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  • However, the processes required for reduction of DC employer contributions will necessitate obtaining legal advice:
    • Reducing employer contributions may require changes to the employment contracts of affected staff (as does the furlough process).
    • Reducing employer contributions may also require negotiation with trade unions or other staff representative forums.
    • Where group personal pensions are used, the contractual format may not permit changes of employer contributions, and hence it may also be necessary to enter into a new contractual arrangement. Choosing a new group personal pension plan is a not insignificant task in itself.
    • Employers with at least 50 employees are required to conduct a 60-day consultation process with affected employees if they propose to reduce employer contributions (but please see below).
    • Finally, it may require a change to the scheme rules and engagement with the scheme trustees if the scheme is operated under trust.
  • For DB schemes, specific considerations apply (see the last section, below).

Last updated on 14th April, 2020