What do care providers need to know? Here’s a quick summary.

The coronavirus pandemic has caused a myriad of problems in the already complex world of mental capacity. In times of crisis, we all need to remember to go back to the basic principles that underpin our systems and procedures.

During the pandemic, the requirements set out in the Mental Capacity Act 2005 (the "MCA") and Deprivation of Liberty Safeguards (DoLS) still apply. The new guidance applies during the pandemic until such time as the DHSC withdraws it.

The DHSC take the view that most changes to care and treatment will not constitute a deprivation of liberty. Where changes to care do constitute a deprivation, providers still need to consider whether to make a DoLS application. The Guidance contains a flow chart to help you make that decision.

Perhaps the most helpful take away is that the Guidance mentions a shortened "Urgent Authorisation" form at Annex B, which can be used during this emergency period.

What sort of changes to care are the DHSC talking about? The Guidance gives the following examples:

• "provide treatment to prevent deterioration when they have or are suspected to have contracted COVID-19,
• move them to a new hospital or care home to better utilise resources, including beds, for those infected or affected by COVID-19, and
• protect them from becoming infected with COVID-19, including support for them to self-isolate or to be isolated for their own protection."

Application of the MCA

The Guidance states that providers are responsible for implementing public health advice that requires the public to stay at home generally and also the more specific guidance they have issued to social care providers. In doing so, they should seek people's consent, where they can. When people lack the capacity to make decisions for themselves, the principles of the MCA still apply and must be applied by care providers to people individually. No decisions about a group of people are permitted. (We think care providers will know this instinctively; perhaps this instruction is aimed at medical professionals, some of whom have pushed out directives about DNARs and treatment that improperly lump the elderly together.)

The key area in which mental capacity assessments and best interests decisions must be taken is in regard to new arrangements for care and the giving of life saving treatment. The Guidance says:

"Decision makers should consider whether a person has made a valid and applicable advance decision to refuse the specific treatment in question. If they have made such a decision, then relevant treatment, including for COVID-19 cannot be provided. Likewise, if the person has a donee appointed under a personal welfare lasting power of attorney or a court appointed deputy with a specific authority in relation to the proposed treatment, who is refusing consent to that treatment, then that treatment cannot be provided. Anyone with such authority must act in the person's best interests when making decisions about such treatment. If staff are not in agreement with the attorney's or deputy's determination of the person's best interests, then unless the dispute cannot be resolved through other means, consideration should be given to an application to the Court of Protection."

Given the difficulty of the situation on the ground, it will be very difficult for providers to make applications to the Court of Protection to challenge an attorney or deputy's decision, but there may be situations where this is appropriate and you may want to seek legal advice about it rather than try to navigate the difficulties alone.

DoLS

In regard to other applications, local authorities who consider DoLS applications and arrange assessments should continue to prioritise DoLS cases using standard prioritisation processes. Furthermore, DoLS assessors should not visit people in care services unless a visit is "essential". They will be permitted to use previous assessments as evidence to help make new assessments. In our view, this probably means taking the old assessment as a starting point and asking what has changed.

Life-saving treatment

Where life-saving treatment is provided for COVID-19, it will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to any patient without a mental disorder. The DoLS process will not apply to most people who need life-saving treatment but lack the mental capacity to consent to that treatment.

If a person is unconscious or delirious and needs life-saving treatment, that treatment is highly unlikely to deprive them of their liberty. Providers (or attorneys or court appointed deputies for health and welfare) should make a best interests decision. Again, going back to basics, it would be important to know what sort of authority a relative holds for a service user. A power of attorney for financial affairs would not give someone the authority to make best interests decisions about treatment for COVID-19.

In situations that don't involve life-saving treatment, the Cheshire West acid test still applies. You must ask whether the person (who lacks the relevant mental capacity to make decisions about their care or treatment) is deprived of their liberty because, they are:

• not free to leave, or
• under continuous supervision and control.

Again, we must go back to first principles. The Guidance dictates that you ask whether the restrictions can be minimised so as to avoid a deprivation of liberty. You must ask:

"(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."

This is really no different to the analysis you would need to do if a person's circumstances have changed significantly.

Urgent DoLS authorisations

Urgent DoLS authorisations remain effective for 7 days. You should use the new form that has been published alongside the Guidance.

When people are moved to different settings, it is likely that a new DoLS application should be made.

What do you do when service users will not stay at home?

One difficult scenario that we have been seeing is that some service users will not or cannot comply with the Government directive to stay at home. Unfortunately, this puts other service users who reside with them at serious risk.

The Guidance says:

"Decision-makers should avoid putting more restrictive measure 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."

In other words, if service user A won't stay home, putting service users B, C, and D at risk, you cannot use a DoLS application to protect B, C, and D. DoLS can only be used for A's own protection.

This leaves providers with very serious health and safety and safeguarding issues, which can be difficult to work through. In our experience thus far, some local authorities have been very unhelpful in this sort of situation. However, it appears that the powers to deal with such a situation were given to Public Health Officers in the Coronavirus Act 2020, who can make orders designed to protect people from transmission of the virus. If you are experiencing such a situation, we can try to help you work through it to find a practical legal solution that will protect your service users and staff.