Last month I wrote an article reviewing the DHSC’s emergency guidance on the application of The Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the COVID-19 pandemic. As explained in my article (found here) the emergency guidance aims to assist those caring for adults who lack mental capacity when deciding on changes to care and treatment during the pandemic.
The emergency guidance has been recently updated. The main revisions relate to the use of Emergency Public Health Powers, the inclusion of an easy read attachment and an attachment with additional guidance providing further clarification on matters covered in the main emergency guidance.
Emergency Public Health Powers
Emergency Public Health Powers are covered in the main emergency guidance and the additional guidance.
By way of background, the Coronavirus Act 2020 gives Public Health Officers power to impose restrictions and requirements on a person suspected or confirmed to be infected with COVID-19, who is not complying with sensible public health advice.
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. If the person is in a hospital setting for the purposes of assessment/treatment of a mental disorder, the person caring for them should consider if the Mental Health Act 1983 (MHA) provides an appropriate legal framework to restrict their movements. The provider should be making every effort to ensure that the person is supported in order to be able to understand what is being asked of them and therefore make the decisions for themselves.
The Public Health Officer will first confirm that all avenues of the MCA and, where appropriate, the MHA have been explored, as in most cases, the Public Health Powers will not be the most appropriate legal framework. The following principles act as a guide for which legislation is likely to be most appropriate:
(a) If the measures are in the person’s best interests, then a best interest decision should be made under the MCA.
(b) 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.
(c) If the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, advice needs to be sought from Public Health England on whether any restriction of the person’s movement (such as a requirement to self-isolate) is appropriate.
However, where it is confirmed that Public Health Powers are the most appropriate option for the person, the Public Health Officer will:
(a) consider the person’s past and present wishes and feelings
(b) seek the assistance of someone appropriate who is close to the person, such as a family member, or carer
(c) always seek to provide appropriate support to enable the person to make the decision for themselves
(d) as far as possible, help the person to understand what is happening and involve them in each process
(e) consider communication needs of the person and adapting communication accordingly
(f) when providing information to the person, provide this same information to the individual supporting the person in accordance with data protection requirements
(g) when assessing the person, the individual supporting them should attend the assessment, and where appropriate assist the person in answering the questions about their health and recent
Additional guidance can now be found in the attachment to the emergency guidance and considers the following:
When can someone who lacks capacity to consent be tested for COVID-19?
In the first instance, all practicable steps should be taken to support the person to make the decision to be tested for COVID-19 for themselves. However, if this is not possible or is unsuccessful, then it may be appropriate to make a best interest decision under the MCA.
What does lifesaving treatment mean?
Life-saving treatment refers to any treatment that is needed in order to stop the person from dying. In some cases that includes treatment to prevent the deterioration of their condition.
Advance care plans
Advance care planning allows plans to be put in place for future care and treatment. If a person has advance care planning arrangements in place, these should be considered and any wishes expressed in them taken into account. As well as care and treatment preferences, an advance care plan may include details of any advance decision to refuse treatment or a Lasting Power of Attorney (LPA).
Life-saving treatment cannot be given if it is contrary to a valid and applicable advance decision to refuse treatment made by the person. An attorney under a LPA may have been given the appropriate power by the donor in the instrument to refuse life-saving treatment. The treatment cannot be given if the attorney has this power and refuses the treatment on the donor’s behalf (a court-appointed deputy can never refuse life-saving treatment).
How should the Acid Test be interpreted?
As mentioned in my previous article 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. This was extended by the “Root Cause Test” derived 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 person’s physical illness or their mental disorder.
The Acid Test is further explained in the additional guidance which clarifies that “not free to leave” means not free to leave the accommodation permanently as set out in the case of D (A Child)  EWCA Civ 1695.
How can the MCA principles be applied when a person is being discharged from hospital to a care home, in the context of ‘reduced choice’?
During the pandemic, people could face a reduced choice in their discharge setting and may be moved to an alternative setting ahead of their first choice of placement. In light of this, for an individual who lacks the relevant capacity, a best interest decision under the MCA should still be made. Even though the options for discharge are reduced, the decision-maker must make the best interest decision in respect of all the available options. The Government’s published guidance on hospital discharge and action plan for adult social care should also be considered.
Government guidance is changing at a rapid pace, and the updates within the guidance are not clearly marked. This article and my previous article on 11 May 2020, can be used as guide to navigate through the guidance and its attachments. Our specialist solicitors can advise providers on all aspects of compliance with the MCA during this challenging period.