The Department of Health & Social Care has very recently published additional guidance concerning the Mental Capacity Act 2005 and deprivation of liberty safeguards (DoLS) during the COVID-19 pandemic.
The update on 7 September 2020, provides guidance for testing a person for COVID-19, who lacks the relevant mental capacity to provide their consent. If it proves impossible to support a person to consent to a test, then under the Mental Capacity Act, a best interests decision should be made. This involves considering all relevant circumstances for that person, including their wishes, beliefs and values and most importantly, what that person would have wanted if they had the capacity to make the decision for themselves.
When undertaking a best interests decision, views of the person’s family should be taken into account by professionals on a remote basis wherever possible, such as via telephone or video conferencing. Whilst face-to-face visits by professionals are vital in DoLS cases, due to the pandemic and in accordance with the guidance, face-to-face visits should still only occur if needed, such as due the urgency of the matter or to meet the person’s specific communication needs. If a visit is considered to be necessary, then prior arrangements must be made with hospital and care home staff so as to adhere to infection control policies as much as possible and reduce the risk of any infection spreading.
Where testing and other necessary measures are needed for the purposes of procedures such as surgery, and where a person may lack the mental capacity to consent to testing and self-isolation (e.g. before or after an appointment or surgery as an NHS in-patient), consideration must again be given as to what is in the person’s best interests. The guidance states that, “in this case, the decision-makers with responsibility for the person before and/or after the procedure, including family, care home staff and other professionals will need to work collaboratively with NHS professionals and consider what is in the person’s best interests. They may conclude that it is in the person’s best interests to follow infection control procedures mandated by the hospital, in order to ensure that the procedure goes ahead. Joint working and communication will be important in these cases, as the hospital will be dependent on these decision-makers, in care homes and other settings, to ensure that these decisions are taken and implemented at the right time.”
Providing ‘life-saving treatment’
Further, the guidance provides for any form of life-saving treatment, referring to treatment required to prevent a person from losing their life. As there is no present cure in place to treat the life threatening infection, any treatment to prevent the deterioration of a person’s condition will be determined ‘life-saving’, where the person would die without the relevant treatment.
If the person receiving life-saving treatment (including treatment for COVID-19) lacks mental capacity, the guidance states that this will not amount to a deprivation of the person’s liberty, where the treatment prevents a deterioration of their condition if the loss of their life is at risk, “so long as the treatment provided is materially the same as would normally be given to those without a mental disorder.”
Most importantly, the guidance states that if you are an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR), then you should continue to represent and support the person who is, or may be subject to a DoLS authorisation during the pandemic.
Similarly, face-to-face visits should only occur if thought to be needed, such as to meet the person’s specific communication needs or if there are concerns about the person’s human rights, and remote techniques must continue to be used wherever possible.
It is crucial to note that the principles of the Mental Capacity Act 2005 must still be adhered to during the pandemic. Assessment of someone’s mental capacity to make a decision (such as to consent to a coronavirus test, to decide to self-isolate, or to comply with social distancing measures) where there are doubts about the person’s ability to make the decision is essential. Should the individual be assessed to lack medical capacity to decide to have a coronavirus test or self-isolate, then a best interests decision making process must be undertaken, involving consultation with any family members. This would involve deciding, for example, whether it would be in the person’s best interests to have to self-isolate, including any measures that would need to be implemented to ensure compliance with the isolation, such as constant monitoring by care staff or keeping doors locked. This may cause significant stress and anxiety to a vulnerable adult with disabilities, and so a range of factors and considerations need to be taken into account before a decision is made.
The same principles and considerations also apply to vulnerable adults in other settings, such as supported living placements or those receiving care packages in their own homes.
It is easy to imagine how such measures, where a person lacks capacity to consent yet is made to self-isolate, could constitute a deprivation of the individual’s liberty. It must be considered whether the arrangements amount to a deprivation of the individual’s liberty and if so, then in most cases a referral is required to the Court of Protection to authorise the restrictions.
Should you require any advice or assistance in relation to a mental capacity, best interests or deprivation of liberty issue, please do not hesitate to contact our specialist Court of Protection and community care team who have extensive knowledge and expertise in this area, on 0161 696 6159.