The DHSC has published new emergency guidance for Care Homes, Hospitals and Supervisory Bodies on the application of The Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the Coronavirus (COVID-19) pandemic. This article explains the new guidance.
The recent guidance aims to assist those caring for adults who lack mental capacity, when deciding on changes to care and treatment during the pandemic. Essentially the guidance provides a set of steps that the decision maker needs to consider before implementing changes.
A word of warning, the guidance is only valid during the COVID-19 pandemic and should not become the norm post-pandemic. The guidance does not change the principles of the MCA and the safeguards provided by DoLS.
STEP 1: What new arrangements (restrictions) are needed for each individual?
During this pandemic changes will likely need to be made to the care and treatment of service users who lack capacity. This can be anything from moving a service user to a new hospital or care home, supporting a service user to self-isolate or restricting visitors. And in some cases, the new arrangements may be more restrictive than they were before the pandemic.
What is most important here is that the decision is being made about an individual service user, rather than a group of service users.
STEP 2: Do the new arrangements constitute a ‘deprivation of liberty’ for that individual?
The new arrangements may be made for perfectly reasonable reasons, giving the global pandemic we currently face. However, if the new arrangements/restrictions are deemed to be a deprivation of liberty, appropriate safeguards must be in place. The following tests should be applied to determine whether the new arrangements constitutes a deprivation of liberty:
The Acid Test
The ruling in the case of (1) P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council  UKSC 19 (Cheshire West) produced an acid test to determine what constitutes deprivation of liberty. The 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.
The Root Cause Test
This test is essentially an extension of the Acid Test and clarifies that “not free to leave” means not free to leave the accommodation permanently. The test derives from the case of R (Ferreira) v HM Coroner for Inner South London and others  EWCA Civ 31 establishing whether restrictions are due to a service users physical illness or their mental disorder. In the case the Court of Appeal ruled that patients in Intensive Care Units (ICU) are not generally ‘deprived of their liberty’ as they are restricted by their physical infirmities (and the treatment received for such, for example sedation) rather than any restriction imposed by the hospital and are therefore ‘free to leave the accommodation permanently’. The root cause of any loss of liberty is their physical condition not any restriction imposed by the State for their mental disorder.
Life Saving Treatment Test
The test is whether life-saving treatment is the same as would normally be given to any service user without a mental disorder. If the life-saving treatment is the same as would be given to any service user without a mental disorder the treatment would not amount to a deprivation of liberty. This is the case where the life-saving treatment is being provided in care homes or hospitals, including the treatment of COVID-19. However, do note that if additional measures are put in place for the service user, when they are receiving treatment, for example to stop them from leaving the place of treatment then the Acid Test should be considered to determine if the additional measures amount to a deprivation of liberty.
STEP 3: The new arrangements do not constitute a deprivation of liberty
Where changes to arrangements around a service user’s care or treatment does not constitute a deprivation of liberty, a best interest decision would be the reasonable course of action. The DHSC advises that this will apply to most cases where changes are made to a service user’s care due to COVID-19.
As was the case prior to COVID-19, Service Provider’s would make a best interests decision in order to provide the necessary care and treatment and put in place the necessary arrangements, for the service user who lacks the relevant mental capacity to consent to the arrangements. During this state of emergency it may be that some decisions can be made with the agreement of the service users ‘s friends and family in the ‘best interest of the service user’, to ensure that the service user does not leave or is not visited by many different relatives. Best interest decisions also apply to service users receiving life-saving treatment.
STEP 4: The new arrangements constitute a deprivation of liberty
If the new arrangements amount to a deprivation of liberty, it goes without saying that if the service user does not have a DoLS authorisation in place, one will need to be requested.
However, if the service user already has a DoLS authorisation, it can be difficult to determine whether a new authorisation is required. The DHSC advises that in many cases during this period the new arrangements will not constitute a new deprivation of liberty and current authorisations will cover the new arrangements but it may be appropriate to carry out a review. If the current authorisation covers the new arrangements but the new arrangements are more restrictive than the current authorisation a review should be carried out. And if the current authorisation does not cover the new arrangements, a referral for a new authorisation should be made to the supervisory body to replace the existing authorisation.
If a new authorisation is required, Service Providers should follow their usual DoLS processes to seek authorisation. However, the guidance makes a change to the urgent authorisation process. During the pandemic only a shortened form (at Annex B of the guidance) is to be used to grant an urgent authorisation and to request an extension to that urgent authorisation, from the supervisory body. This should be submitted as soon as is practically possible after the deprivation of liberty has been identified and started. An urgent authorisation can come into effect instantly when the application is completed and lasts for up to a maximum of seven days, which can be extended for a further seven days if required.
In conclusion, whilst this article attempts to simplify this complex topic into a small number of steps, it is acknowledged that the gravity and sensitivity of these decisions in these unprecedented times are not so simple. What is helpful is that the DHSC recognises the additional pressure the pandemic has put on the DoLS system and states that “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.”
If you would require any assistance or advice on Mental Capacity and Deprivation of Liberty Safeguards during COVID-19 or more generally, please contact Ridouts at firstname.lastname@example.org or 0207 317 0340.