The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 Pandemic
14th April, 2020
Last week, the Department of Health & Social Care 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.
If you have any queries in relation to this guidance, or would like any further information, please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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