1. Introduction

This chapter is a summary of The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic (click on the link to view the full guidance). It also states relevant case law.

The guidance is designed to support workers, councils, providers and NHS staff who are dealing with DoLs cases during the COVID 19 pandemic.

Please note:

  • the guidance is only valid for the coronavirus pandemic period;
  • it applies to those caring for adults who lack capacity to consent to care and treatment;
  • the principles of the MCA and the safeguards provided by DoLs still apply;
  • it does not make any changes to best interests decision-making (see Best Interests chapter).

2. Key Points of the Guidance

2.1 Consent

When making decisions during the pandemic about the care and treatment of people who lack the relevant mental capacity, staff should seek consent on all aspects of care and treatment to which the person can consent.

2.2 Life-saving treatment

Where life-saving treatment is being provided (including for COVID-19) as long as this is the same treatment that would be given to a patient with capacity the person is not deprived of their liberty.

Therefore, if a patient is unconscious, semi-conscious or delirious and needs life-saving treatment (for COVID-19 infection or anything else), it is unlikely that this would be a deprivation of their liberty.

Case law

R (Ferreira) v HM Senior Coroner for Inner South London [2017]

In R (Ferreira) v HM Senior Coroner for Inner South London [2017], the Court of Appeal stated that there was no deprivation of liberty requiring legal authorisation (under Article 5 of the European Convention on Human Rights) where treatment or care:

  • results from the administration of life-saving treatment;
  • is unavoidable as a result of circumstances beyond the control of public bodies;
  • is necessary to avoid a real risk of serious injury or damage; and
  • is kept to the minimum required for the purpose of the treatment. This means the treatment must not be any different from that which would be given to a person with capacity.

Director of Legal Aid Casework et al –v-Briggs (2007) EWCA Civ 119

There will be no DoLs where P “so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore by virtue of their physical condition, they are unable to leave hospital”.

2.2.1 Department of Health and Social Care (DHSC) Guidance

The guidance states:

“ where lifesaving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would be normally given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19.

During the pandemic, it is likely that such life-saving treatment will be delivered in care homes and hospitals and it is, therefore, reasonable to apply this principle in care homes or hospitals. The DoLs process will, therefore, not apply to the vast majority of patients who need lifesaving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19”.

2.3 Changes to care

Changes to care and treatment, for example life-saving treatment, or being moved from one care setting to another will not normally require a new DOLs application as either:

  • this would not be a deprivation of their liberty (see above). In this case, a new decision in the person’s best interest would be required; or
  • because there is already a DoLS authorisation in place. In this case, it may be necessary to review the authorisation if the changes to care and treatment are more restrictive.

2.3.1 Reviewing the authorisation

The guidance states:

“(a) Does the person already have a DoLS authorisation, or for cases outside of a care home or hospital does the person have a Court Order? If so, then will the current authorisation cover the new arrangements? If so, in many cases changes to the person’s arrangements for their care or treatment during this period will not constitute a new deprivation of liberty and the current authorisation will cover the new arrangements, but it may be appropriate to carry out a review.

b) Are the proposed arrangements more restrictive than the current authorisation? If so a review should be carried out.

c) If the current authorisation does not cover the new arrangements, then a referral for a new authorisation should be made to the supervisory body to replace the existing authorisation. Alternatively, a referral to the Court of Protection may be required.”

Care and treatment should continue to be provided in the person’s best interests (see Best Interests chapter). The best interests principle aims to prevent harm to P.

Case law

Secretary of State for the Home Department –v- Skripal [2018] EWCOP6

The Home Office applied for a personal welfare order to authorise collection and testing of blood samples and the disclosure of medical records where the two patients were unconscious following a suspected nerve agent attack.

There was no evidence to assist the court in identifying the values and beliefs of the Skripals that might hold for the purposes of determining best interests. It was assumed that they would want to secure the best information in the investigation of a serious crime with the general aim of justice being done.  A reasonable citizen, if asked on these issues, would adopt or be influenced by ”the duties of a responsible citizen” that justice should be done.

2.3.2 DHSC DoLs guidance

The guidance states:

“Decisions-makers should avoid putting more restrictive measures in place for a person unless absolutely necessary to prevent harm to that person. DoLs cannot be used if the arrangements are purely to prevent harm to others.”

If the reasons for the isolation are purely to prevent harm to others or the maintenance of public health, then public health powers should be used. If a person’s relevant capacity fluctuates, the public health powers may be more appropriate.

The Health Protections (Coronavirus, Restrictions) England Regulations 2020 state a person who:

  1. without reasonable excuse contravenes a requirement (restrictions on gatherings); or
  2. contravenes a requirement (no person may leave the place they are living without reasonable excuse), commits an offence.

See also Section 2.6, Emergency public health powers)

2.4 Streamlined urgent authorisations

If a new or urgent authorisation is required, the usual DoLS process applies (see Deprivation of Liberty Safeguards chapter). However, there is a shorter form for urgent authorisations for use during this period (see DoLS Urgent Authorisation Form – COVID-19).

2.4.1 DHSC DoLs guidance

The guidance states:

“In some cases, a new authorisation may be needed. In such cases, an urgent authorisation can come into effect instantly when the application is completed and lasts for a maximum of seven days, which can be extended for a further seven days if required.”

There are limits on the use of urgent authorisations; a seven-day extension is granted in exceptional circumstances such as the pandemic. It is acceptable to use the shorter form (see Section 2.4 above) for such authorisations.

2.5 Remote assessments by supervisory bodies

To reduce the risk of spreading the coronavirus infection, DoLS assessments and reviews should be carried out remotely where possible and appropriate. Remote assessment is acceptable. This could include telephone or video discussions. DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential. In all cases of remote assessment, it is important to consider how best to support the person.

Case law

BP –v—Surrey County Council & Anor [2020] EWCOP17

P’s daughter applied to the court for him to be discharged from a care home where he was living and a declaration that it was in his best interest to return home with a package of care.

The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 (right to liberty) and Article 8 (right to family).

The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Face time.

2.5.1 DHSC guidance

The guidance states:

“To carry out a DoLs assessments and reviews, remote techniques should be used as far as possible, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration. Views should also be sought from those who are concerned for the person’s welfare.”

Assessments may also use evidence from previous assessments, if these are still valid. If information from previous assessments is used, this must be made clear. If the assessment was carried out within the last 12 months, this can be relied upon without the need for a further assessment.

It also states:

“Any authorisation in force (urgent or standard) is still applicable if the person moves within the same setting e.g. a change of ward. If the person moves to a totally different setting a new authorisation may be needed.”

Where the person is receiving end of life care, supervisory bodies should use their professional judgement as to whether an authorisation is necessary and can add any value to the person’s care (see also End of Life Care chapter).

“Where the person is receiving end of life care, decision-makers should use their professional judgment as to whether DoLs assessment are appropriate and can add any value to the person’s care and treatment.”

ReSPECT (Recommended Summary Plan for Emergency Care and Treatment) is a process which keeps under review personalised recommendations for a person’s clinical care in a future emergency, in which they are unable to make or express choices.

2.6 Emergency Public Health Powers

The Coronavirus Act 2020 gives Public Health Officers (PHO) power take action (including screening, isolation and restricting movements), of a person suspected or confirmed to be infected with COVID-19 who is not complying with 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 them should explore the use of the MCA as far as possible.

If the person is in a hospital setting for assessment / treatment of a mental disorder, the person caring for them should consider if the Mental Health Act 1983 is the appropriate legal framework to restrict their movements.

When considering the MCA and public health powers in the Coronavirus Act, the following principles provide a guide for which legislation is likely to be most appropriate:

(a) the person’s past and present wishes and feelings, and the views of family and those involved in the person’s care, should always be considered;

(b) if the measures are in the person’s best interests, a best interest decision should be made under the MCA;

(c) if the person has a DoLS authorisation in place, 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;

(d) 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.

For Public Health England advice on the use of restrictions, staff should contact their local health protection teams.

Appendix 1: Decision Making Flowchart for Decision Makers in Hospitals and Care Homes

Click on the image to enlarge it.