Mar 20

COVID-19: the Mental Capacity Act and Deprivation of Liberty Standards

Posted: 26 March 2020

Written by Karen Morse, Skills for Care Head of Area and mental health lead.

Several social care providers have contacted us about how they can ensure they uphold the rights and decisions of people they support amid the COVID-19 emergency. These have mostly been about isolating residents in care homes, and restricting visits from family and friends. The Department of Health and Social Care is working on advice, but until this advice is published, here’s some information on what we know so far, and some things you might want to think about.

The emergency Coronavirus Bill has now passed through Parliament and it didn't cover any changes to the Mental Capacity Act (MCA) or Deprivation of Liberty Standards (DoLS). We know that many Local Authorities will not be able to maintain their authorisations, although some are saying they will process urgent authorisations. This was raised in the House of Lords, where the debate noted the need for better guidance for the duration of the COVID-19 epidemic.

Some guidance has been published on ethical decision making in health and social care which does mention MCA in that ‘those making decisions should…where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf’. Arrangements for hospital discharge state that the provisions of MCA still apply, but should not delay discharge.

There is also Human Rights Act legislation to consider in which Article 8, for example, states the right to a family life. However, there are situations, including health emergencies, where these rights can be suspended.

Where care providers act to isolate or restrict a person with suspected COVID-19, they must still apply the same principles of the MCA and DoLS: for example using the least restrictive options and proportionality. They should record the actions they have taken (for example making Skype calling available to someone who is in isolation). Some people who lack capacity will have an existing DoLS authorisation, and due to increased restriction require further authorisation. Some will have a representative under a lasting power of attorney. Some will have the capacity to agree to isolation. So each person must be considered individually, and it’s a good time to make sure records are up to date. Recommended Summary Plans for Emergency Care and Treatment (ReSPECT) can also help with understanding a person’s needs and wishes, and templates can be found here.