The department of Health and Social care has today issued guidance to those caring for adults who lack capacity to consent to their care and treatment.  

You can read the guidance here.  

This post is based on an early reading and will be updated as more information about the impact of the guidance comes to light.

The guidance is expressed as temporary and will only apply during the pandemic, and should not become “the new norm”.   It recognises that “the principles of the MCA and the safeguards provided by DOLS still apply.It states that (emphasis added):

"2.During the pandemic, it may be necessary to change a person’s usual care and treatment arrangements to, for example: 

•provide treatment to prevent deterioration when they have or are suspected to have contracted COVID-19, •move them to a new hospital or care home to better utilise resources, including beds, for those infected or affected by COVID-19, and 

•protect them from becoming infected with COVID-19, including support for them to self-isolate or to be isolated for their own protection. 

3.New arrangements may be more restrictive than they were, for the person, before the pandemic. It is important than any decision made under the MCA is made in relation to that individual; MCA decisions cannot be made in relation to groups of people."

The guidance rightly confirms the need to make decisions in the best interests of those who lack capacity.  It then states that when making best interests decisions,  the decision-maker 

“should consider all relevant circumstances, and in particular: 

•whether it is likely that the person could regain capacity and if so whether the decision can wait, 

•ensuring participation if reasonably practicable, 

•the person’s past and present wishes and feelings, and beliefs and values that would be likely to influence their decision, 

•the views of the person’s family members and those interested in the person’s welfare, if it is practicable and appropriate to do so.”

This is not wholly consistent with section 4 MCA.  Section 4 does not state that participation should be ensured “if reasonably practicable”.  Instead it requires that the decision-maker should 

“so far as reasonably practicable, permit and encourage the person to participate, or to improve his participation, as fully as possible”.  

In relation to deprivation of liberty, the guidance notes that those lacking capacity to consent to treatment who are receiving treatment for Covid-19 in an intensive care unit will not be deprived of their liberty as they will be receiving the same treatment as would a person with capacity (following the Ferreira judgment), unless additional measures are being put in place.

In cases where the Ferreira judgment does not apply, the guidance confirms the need for lawful authority to deprive a person of their liberty.   

It then refers to the “acid test” for deprivation of liberty in Cheshire West:

12.The Cheshire West ruling stated that a person who lacks the relevant mental capacity to make decisions about their care or treatment is deprived of their liberty if, as a result of additional restrictions placed upon them because of their mental disorder, they are:

 •not free to leave the accommodation, and 

•under continuous supervision and control. 

6 This is known as the acid test. Subsequently, the Court of Appeal has commented that “not free to leave” means not free to leave that accommodation permanently (https://www.familylawweek.co.uk/site.aspx?i=ed182592)."

 This is a reference to the Court of Appeal’s decision in Re D, where Sir James Munby observed that 

“As I read her judgment (see paras 40-41), Baroness Hale was using "free to leave" in the sense I had described in JE v DE [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, para 115: "The fundamental issue in this case … is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses …"

Of course, that does not mean that the person will only be deprived of their liberty on the basis that they are not "free to leave" if they are accommodated in the care home on a permanent basis.    The comment in JE and DE simply means that a person may not be free to leave  if they are allowed to go out from the care home, but  have to come back.   It is suggested that a person who is under complete and effective control, who has been moved to a care home during the pandemic and is not free to leave till the crisis is over, will satisfy the acid test, because they are not being allowed to go leave permanently.

For use in hospitals and care homes, a shortened version of the form for an urgent authorisation has been prepared.  

The guidance goes on to state that:

"19.The Department recognised the additional pressure the pandemic will put in the DoLS system. 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." 

This appears to be a tacit recognition that many local authorities will not be able to deal with requests for standard authorisations (as is currently the case) and will therefore continue to “triage” as they do now.  This is reinforced at paragraph 25.   There is guidance  as to how assessments should be carried out:

26.To carry out a DoLS assessments and reviews, remote techniques should be used as far as possible, such as 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. 

27.Where appropriate and relevant, current assessments can be made by taking into account evidence taken from previous assessments of the person. The assessor undertaking the current assessment must make a judgement on whether the evidence from the prior assessment is still relevant and valid to inform their current assessment. If this information is used to support the current assessment or review this should be noted and referenced. Alternatively, if the assessment was carried out within the last 12 months, this can be relied upon without the need for a further assessment. 

28.Where the person is receiving end of life care, supervisory bodies should use their professional judgement as to whether an authorisation is necessary and can add any value to the person’s care.

 The interface between the MCA and the new public health restrictions (which are considered here) is considered at the end of the guidance:

29.If it is suspected or confirmed that a person who lacks the relevant mental capacity has become infected with COVID-19, it may be necessary to restrict their movements. In the first instance, those caring for the person should explore the use of the MCA as far as possible if they suspect a person has contracted COVID-19. The following principles provide a guide for which legislation is likely to be most appropriate: 

(a) The person’s past and present wishes and feelings, and the views of family and those involved in the person’s care should always be considered. 

(b) If the measures are in the person’s best interests then a best interest decision should be made under the MCA.

 (c) If the person has a DoLS authorisation in place, then the authorisation may provide the legal basis for any restrictive arrangements in place around the measures taken. Testing and treatment should then be delivered following a best interest decision. 

(d)  If the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, then PHO powers should be used. 

(e)  If the person’s relevant capacity fluctuates, the PHO powers may be more appropriate.

31. If the public health powers are more appropriate, then decision makers should contact their local health protection teams (https://www.gov.uk/guidance/contacts-phe-health-protection-teams)."

Comment

The Coronavirus Act did not change any aspect of the Mental Capacity Act 2005.  In stating that the “principles of the MCA and the safeguards of DOLS still apply” the Government is correct- however the whole of the MCA continues to be in force as well.  

With this in mind it is perhaps unhelpful that the guidance seeks to put a gloss on section 4 MCA.  The “checklist” at section 4 continues to apply in full, and the statutory defence in sections 5 and 6 will only apply if a decision-maker has shown “sufficient compliance” with the best interests “checklist". 

 In particular the requirements to involve P and consult others, as set out in the MCA, are not semantic but are key safeguards- see for example in the case of Winspear v Sunderland NHSFT

It remains important that fundamental rights are observed during the pandemic and it would have been helpful to have more guidance on when actions such as “support for them to self-isolate or to be isolated for their own protection” could amount to a deprivation of liberty, especially when this takes place in a person’s home.  

The document suggests that this can be undertaken on the basis of a best interests decision, but it is suggested that this will depend on the measures needed.    

Similarly, where a person is already deprived of their liberty under a court order, but is now under new restrictions related to the pandemic, the guidance could usefully have stated that most orders made under section 16 MCA will require an application to the court if care arrangements become more restrictive.  

It is helpful that an attempt has been made to steer decision-making about the use of the PHO restrictions in relation to those who lack capacity.  It is not clear why PHO powers should be used if the person lacks capacity but “the reasons for the isolation are purely to protect others”.  This seems to reflect the complex interface between the use of the Mental Health Act 1983 and the MCA.  However there is precedent for risk to others to be taken into account as part of a best interests decision, one example being in N (by his litigation friend, the Official Solicitor) v  A Local Authority [2016] EWCOP 47.  Moreover in the event of a very confused person who is putting others at risk simply because the need to avoid doing so,  it is hard to see why the MCA should not be used.