14 April 2020

Latest guidance on the Mental Capacity Act (2005) and Deprivation of Liberty Safeguards (DoLS) during the Covid-19 pandemic

New guidance has been issued by the Department of Health and Social Care on caring for people who lack mental capacity during the current pandemic, designed to ensure that decision makers are clear about the steps they need to take.  It focuses on “new scenarios and potential deprivations of liberty created by the outbreak”.

Principles of capacity and safeguards remain

The principles of the Mental Capacity Act (2005) and the safeguards provided by the Deprivation of Liberty Safeguards still apply.

The main points to note are:

  • Decision makers in hospitals and care homes, and those acting for supervisory bodies will need to take a proportionate approach to all applications, including those made before and during the pandemic. Any decisions must be taken specifically for each person and not for groups of people.
  • Where life-saving treatment is being provided, including for the treatment of Covid-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder. The DoLS will therefore not apply.
  • It may be necessary, for a number of reasons, to change the usual care and treatment arrangements of somebody who lacks the relevant mental capacity to consent to such changes.
  • In most cases, changes to a person’s care or treatment in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person’s best interests.
  • In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide if new arrangements constitute a ‘deprivation of liberty’ (most will not) and if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation may be required (in many cases it will not be).
  • The guidance includes a flow chart at Annex A, designed to help decision makers to make these decisions quickly and safely, whilst keeping the person at the centre of the process.
  • If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations. There is a shortened Urgent Authorisation form at Annex B which can be used during this emergency period.
  • DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential. Previous assessments can also be considered as relevant evidence to help inform the new assessments.

Full details can be found here.

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Derek Jones, Partner

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