The Government has provided additional guidance on looking after those who may lack capacity in the pandemic.  You can read it here.

There are a number of important aspects that were not touched on in the earlier guidance, which was considered here.

The new guidance includes a section on making a best interests decision for someone who lacks capacity to consent to being tested for Covid-19.   

Whilst rightly reminding practitioners that no two best interests decisions will align exactly, the guidance identifies factors that may form part of the “relevant circumstances” for the purpose of section 4 Mental Capacity Act 2005 (“MCA”).  

 “There is currently no cure for COVID-19, but targeted treatment, based on a positive test result, can improve lives (by reducing the severity and duration of symptoms), and in some cases, save lives. Testing an asymptomatic patient at risk of infection, for example before they move to another setting, can also identify infection earlier and improve outcomes for that person. Decision-makers should consider this context when making best interests decisions about testing.”

It is suggested that this could also be useful when identifying the “relevant information” that a person with capacity to consent would need to be able to understand, retain, use or weigh and communicate.  

The guidance stresses the importance of the role of IMCAs and RPRs:

 “If you’re an IMCA or an RPR, you should continue to represent and support the person who is or maybe subject to the DOLS authorisation during the pandemic”.  

 Remote techniques should be used but it is of note that the guidance now recommends face to face visits if “absolutely essential or example to meet the person’s specific communication needs, urgency or if there are concerns about their human rights.”

This is welcome and may be a response to the intervention from Mr Justice Hayden, Vice-President of the Court of Protection in his letter to Directors of Social Services which you can read here, where he drew attention to the worrying drop in deprivation of liberty applications under section 21A and section 16.    All of this however is dependent on the willingness of the care home to facilitate such access.  

Further guidance is given about additional restrictions imposed on those who are subject to DOLS authorisations.  The Government suggests that if face to face visits are prohibited but virtual contact is supported, this would “not be much more restrictive” and would not require a DOLS review.   

This may be a reference to the judgment of Hayden J in BP v Surrey CC, which you can read here.

 In that case the judge the following arrangement in a care home which had banned face to face visits at the start of the pandemic:

“The plan that was ultimately put together provides for BP's education in to the world of Skype with creative use of a communication board and the exploration of concurrent instant messaging. Additionally, the family can, by arrangement, go to BP's bedroom window which is on the ground floor and wave to him and use the communication board. All this will require time, effort and some creativity. I am clear that there is mutual resolve by all concerned………….. I am entirely satisfied that this is a balanced and proportionate way forward which respects BP's dignity and keeps his particular raft of needs at the centre of the plan. ………It has been important to recognise that in addition to his Alzheimer's BP's deafness is a separate and protected characteristic, as defined in Section 148(7) of the Equality Act 2010. As such, it requires to be identified and considered as a unique facet of BP's overall needs."

 Care therefore needs to be taken to ensure that the “virtual” contact is genuinely tailored to the need to each individual.  

The guidance clarifies that even where a person leaving hospital faces a reduced choice of destinations because of the requirement for a swift discharge, a “best interests decision” will still need to be made between the available options.  This follows from the decision of the Supreme Court in N v ACCG.

Finally – and, it is suggested, somewhat belatedly- there is welcome guidance on how the emergency health powers should be used in relation to someone who lacks the relevant mental capacity.  Where these powers, rather than the MCA or Mental Health Act, are used, the public health officer will 

“seek someone appropriate who is close to the person, such as a family member, or someone involved in the person’s care, such as an IMCA or their key worker, to assist in supporting the person to be involved in the process as far as possible.”  

Moreover, there is information on access to an appeal to the Magistrates Court if an order under the emergency powers is made:

“If someone lacks the capacity to make an appeal, it can be made by someone or some authority on their behalf. This may, in some cases, be necessary even if the person is not objecting or does not appear to understand that they can make a challenge.”

Legal aid practitioners will be aware that only exceptional funding is available for such appeals: see guidance from the Legal Aid Agency here.