The Social Care Institute for Excellence (“SCIE”) published guidance in July 2020 titled, “Best interests decisions: A COVID-19 quick guide” (“SCIE guidance”). The SCIE guidance explains that application of the Mental Capacity Act 2005 (the “MCA”) in practice has been challenging due to the implications of COVID-19 and sets out how best interests decisions should be made during the pandemic. This article considers the main points from the SCIE guidance.
Best interests decisions and COVID-19
Section 1(5) of the MCA set outs the best interests principle that, “an act done, or decision made…for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” This means that best interests decisions must be based on what is in the best interests of an individual, not on what is right for other people.
The SCIE guidance states that practitioners must consider government rules and guidance relating to COVID-19 and that it is unlikely to be in the best interests of a person to do something that is prohibited under the government guidance relating to COVID-19, whatever the benefits are to that person.
Reviewing best interests decisions
The SCIE guidance reminds practitioners that previous best interests decisions may need to be reviewed, and new decisions made. Whether and how to review a best interests decision because of COVID-19 will need to be based on an individual’s circumstances. The SCIE guidance sets out a list of considerations which may help determine when a best interests decision needs to be reviewed. These are as follows:
- Individual risk factors – Coronavirus affects people differently, and some of the additional risks are now well-known. The priority given to reviewing best interests decisions should be shaped by people’s individual susceptibility to COVID-19.
- Proportionality – It may not be possible to review every decision, so a plan may need to be made within your organisation for what is realistically achievable. This is in no way to downplay people’s rights to a proper review of their care arrangements; it is about proper planning to focus on the most important tasks in a difficult situation.
- Changes to lockdown rules – What people are allowed to do changes frequently, and gradually. Bear in mind, therefore, a best interests decision may need to be reviewed as the governmental guidance changes, and other possible options become more viable.
- Prioritisation – The implications of the pandemic will be different for different decisions. Some, such as whether someone should move from a care setting where infections are more common (assuming there is another viable option), are major ones which will call for more pressing consideration.
- Alternatives – COVID-19 may have changed someone’s current situation, but some alternative options may no longer be present, in which case a review of the current decisions may not be worthwhile.
Best interests and common COVID-19 related decisions
The MCA provides a checklist set out in section 4 of the MCA and explained in chapter 5 of the MCA Code of Practice of what must be considered when a best interests decision needs to be made. This checklist remains valid and applicable during the COVID-19 pandemic and efforts to involve the person in the decision-making process should be maintained as much as possible.
The SCIE guidance considers how best interests considerations might apply in various COVID-19 related decision-making processes. I have set out the best interests considerations in a table format below for ease of reference:
|COVID-19 related issue
|Best interests considerations
|Testing for COVID-19||There can never be a blanket decision that it is in the best interests of everyone in, for example, a care home to be tested. It may be policy to roll-out access to testing for all care homes, but whether it is in the best interests of each person to be tested can only be a decision made on an individual basis.
The testing of someone who lacks the capacity to consent cannot be justified solely, under a best interests decision, by saying ‘it protects other people from a possible infection’, although the risk to others can be factored in.
The MCA checklist requires practitioners to take into account all relevant circumstances (in this case, including the presence of a pandemic) and the person’s past and present wishes and feelings, and their beliefs and values.
There may be a small number of cases where it may be in the person’s best interests not to be tested. For example, where the person is likely to be extremely distressed by the process. However, in most cases it is likely that the person (if they had the relevant capacity) would have consented because they would want to know if they had COVID-19 so it could be treated. In many cases this may be a decisive consideration.
Whether or not the person has symptoms of COVID-19 should be factored in. If someone is displaying symptoms which indicate that COVID-19 is likely, it is probable (although, again, not certain) that it would be in their best interests to know whether or not they have COVID-19.
If someone does not have a test, the options available to them in terms of accommodation, care, and support are probably going to be reduced. As a general rule, this would tend to add to the view that it is likely that a test would be in a person’s best interests.
In some cases, the best interests of the person may be disputed or unclear. For example, if a person becomes significantly distressed at the prospect of a test, despite best efforts to support and comfort them through it, then the distress will need to be balanced against the long- term benefits to the person. In some cases, for example if testing is opposed by the family and the person, consideration may need to be given to an application to the Court of Protection.
As a test is unlikely to be viewed as serious medical treatment, the person may not have a formal right to an IMCA if they are without family or friends to support them. However, if it would give the person additional support, bringing in an advocate may still be a good idea.
It is unlikely that the person has a valid advance decision to refuse treatment (ADRT) that explicitly rules out the test, as the test is not in itself treatment. However, if an ADRT, or an advance statement of wishes, suggests that the person objects to the test procedure, this gives a powerful indicator of the person’s past wishes and feelings and would need to be factored into the best interests decision-making process.
A public health intervention that overrides a best interests judgement, such as forced testing under the Coronavirus Act 2020 is very unlikely to apply.
|Social distancing||The precise details are changing but it is reasonable to assume that social distancing will be in place for some time.
Breaching government guidance on social distancing is highly unlikely to be in the person’s best interests but within that context, practitioners should be mindful of people’s rights to a private and family life under Article 8 of the European Convention on Human Rights, and continue supporting people to maintain their relationships with families and friends as much as possible.
Factors to consider when making best interests decisions that relate to social distancing include:
A different challenge presents itself when someone who lacks the relevant capacity does not adhere to social distancing rules. Someone with impaired cognition may simply not understand that they need to adhere to distancing measures when out and about, as an example. Ongoing efforts to help the person understand the rules should be maintained and there are resources to assist with this from a range of organisations.
In some circumstances, the person may be subject to a legal authorisation such as the Deprivation of Liberty Safeguards (DoLS) or by the Court of Protection, which authorises the person’s deprivation of liberty. In some cases these authorisations may already cover limitations on a person’s movement. If these existing limitations do, in effect, address concerns about people not social distancing, then the issue may be addressed. If someone subject to a DoLS requires additional restrictions to manage a lack of social distancing, then a review of the DoLS authorisation may be required, but it is likely that in most cases the existing DoLS authorisations will be sufficient.
While public health officers do have powers to enforce social distancing, it seems improbable that they would be used with a person who lacks the relevant capacity, even where the person has symptoms of COVID-19. It is likely to be better for everyone to manage the situation through the skilled support of staff and others.
|Self isolating||Similar considerations apply when dealing with best interests decisions about people who need to self-isolate, either because they are medically more vulnerable; have COVID-19 symptoms; or, under the test and trace rules, they have been in contact with someone who has COVID-19 symptoms. Again, it is highly unlikely that a decision would be reached that it was in a person’s best interests to ignore the need to self-isolate.
So again, the challenge may be that someone does not understand the need to self-isolate, and therefore does not stick to the restrictions. The advice is to try to explain the need to abide by the rules; to use whatever resources and communication aids might work for the person; and to support them with vigilant kindness.
In many cases, existing DoLS authorisations may support a person’s self-isolation but if additional restrictions were necessary, the authorisation may need to be reviewed.
|Moving home||Residents of care homes and other group care settings have been disproportionately affected by the pandemic. This has focused attention on the risks of group living, and how these should be weighed against the risks that a person may have faced living elsewhere, prior to their move into a care home.
Where a person has the capacity to decide where to live, it may be that the risks of coronavirus means that they now wish to move but with people who lack the relevant capacity the question of whether and how to review a best interests decision about where the person should live, in the light of the COVID-19 pandemic may be relevant.
It is likely that a person in a care home who lacks the capacity to make significant decisions will be living there under a DoLS authorisation, or an authorisation from the Court of Protection, if they are in a supported living setting and so any decision about moving might need to be done in the context of those processes.
The SCIE guidance considers what needs to be factored in when making new best interests decisions, or reviewing existing ones. This thinking can also be applied to best interests decisions that relate to people who may be moving into a care home from their current home or via a discharge from hospital.
· Each decision will need to be made on an individual basis. Various issues need to be considered by the best interests decision-maker, depending on the circumstances of the case:
· What are the viable alternatives?
· The suitability of the accommodation, and the care that they would receive – would the person have their own room? Would the new home be safe, in terms of preventing falls or accidents?
· Have family members had COVID-19, or have they been tested recently? Have they been self-isolating?
· Might there be safeguarding concerns? Might the pressures of house-sharing, and of caring, negatively affect either the person, or the people into whose home they would move?
· Repeated changes of accommodation can in themselves be harmful, especially to older people with dementia. Is a permanent move with family members anticipated, or is the move intended to be short-term?
· If it is short-term, is the care setting willing or able to hold a place open for the person? The risk of an inadvertent permanent move would need to be weighed up in any decision-making process.
· A majority of care settings have no COVID-19 infections, and rates continue to fall. It is easy to lose sight of the fact, amid a flurry of negative media headlines, that the coronavirus is not present in most care settings, and the risks from it need to be weighed accordingly.
|Discharge from hospital||The point at which a person is medically fit for discharge from hospital and ongoing plans need to be made for their health and social care, is often a pressurised context in which to make best interests decisions.
The principles and processes of the MCA still apply in this context and any best interests decision must focus on the needs of the individual, rather than on any organisational priorities.
Where a person is discharged from hospital, if they lack the capacity to make decisions about their ongoing care, it will be a matter for the decision maker in consultation with the person, professionals, family and others to decide what care and residence arrangements are in their best interests. They should also factor in COVID-19 as well as other relevant circumstances. Additionally, it is important that decision makers give due regard to the nature of discharge, considering people’s long-term welfare and independence.
As with all best interests decisions, they will need to choose from the viable options available. In some cases, these options may be restricted because of the impacts of the pandemic.
|Usual activities||As the lockdown continues to ease, the range of usual activities a person can do will grow. These are unlikely to be entirely free from risk of a COVID-19 infection but few, if any, activities are free from risk. The ethos of the MCA is generally to enhance, not restrict, people’s lives, and we need to guard against the pandemic becoming a reason to be unduly protective of people where that is not warranted by the risks.
As more options for activities become available, taking part in them will need to be weighed up to determine whether doing so is in the person’s best interests. This will involve using the checklist, skills, experience and judgement; and what practitioners know of the person to guide them through the decision-making process.
COVID-19 will now be a factor to be weighed up, but the tools and techniques for factoring it into the best interests decision-making process have not changed.
For further information, a copy of the SCIE guidance can be accessed at the following link:
The SCIE guidance helpfully sets out factors to consider when practitioners make new best interests decisions, or review existing ones in light of the COVID-19 pandemic. The examples provided in the SCIE guidance are very relevant but the crucial point for practitioners to take away from the SCIE guidance is to remember that the MCA checklist remains in force and should still be applied during the COVID-19 pandemic. Efforts to involve a person in the decision-making process should also be maintained as much as possible.
If you require any assistance or advice in relation to the MCA and best interests decisions during COVID-19 or more generally, our specialist solicitors can help. Please contact Ridouts Professional Services Plc using the email address firstname.lastname@example.org or by calling 0207 317 0340.