Emergency guidance issued on compliance with Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 Pandemic

The Government issued emergency guidance on compliance with the Mental Capacity Act (2005) (MCA) and the Deprivation of Liberty Safeguards (DoLS) on 9 April 2020 and this guidance is applicable until it is withdrawn by Government.

The fundamental principles of the MCA and DoLS still apply.

If changes are required to be made to the treatment provided to a person who lacks the mental capacity to consent to those changes it is likely that such changes will not require a new DoLS to be carried out as long as the treatment is in the best interests of the person.  The overriding sentiment within the guidance is that a new DoLS is unlikely to be required in the majority of cases as a result of adaptations to the way that people are cared for.

If a new DoLS is required then an application should be made using usual channels to request that authorisation.  There is a shortened urgent authorisation form at Annex B of the guidance which is designed to make it easier for urgent authorisations to be requested.

Decisions in respect of capacity are to continue to be made on a case by case basis and this guidance does not permit the adoption of a one-size-fits-all approach to making decisions relating to mental capacity within an establishment.  Consent should continue to be sought from people without mental capacity on all aspects of treatment to which the person can consent.

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