COVID-19 and the Mental Capacity Act02/04/20
COVID-19 poses significant resource and logistics challenges for all those who work with, for and alongside protected parties who lack capacity under the Mental Capacity Act 2005 (“MCA 2005”). In this insight, we explore how the principles of the MCA 2005, are to operate in a COVID-19 environment.
Does the MCA 2005 still apply?
Neither the principles nor key tenets of the Mental Capacity Act 2005 are changed by the current circumstances including the Coronavirus Act 2000. Healthcare and care professionals will therefore need to continue to apply the core principles and framework for decision making set out in the MCA 2005 as they would at any other time including by undertaking assessments for capacity on an issue-specific basis (in relation to discharge, residence and care, or treatment decision) before a best interests decisions is made in line with the framework set out in the Act.
There will likely be an increased need to ensure patients who lack capacity remain in their bed area in hospital without wandering. Professionals must be sure to apply the MCA principles when considering sedation/restraint in those circumstances.
How can we carry out assessments when a patient is in self-isolation?
It is likely that professionals will encounter difficulties with this in light of COVID-19. Schedule A1 of the MCA describes how a best interests assessment is carried out; there is no requirement for face to face assessment. If a capacity assessment is required, professionals should consider whether they can use technology to complete the assessment. Where it is necessary to deviate from normal practices or procedures, it is important to document the reasons for the deviation and what steps were taken to mitigate any impacts.
What about deprivation of liberty safeguards (DOLS)?
As with the MCA 2005, the current circumstances have not altered the continued applicability of DOLS in care homes and hospitals where care arrangements deprive a protected party of their liberty. However, NHS guidance states that this should not delay discharge from hospital and it is likely there will be a significant rise in the grant of urgent authorisations as admissions of protected parties increase for temporary rehabilitation following infection or illness, or in the absence of community services or family members able to provide the requisite support in their homes. The consequent rise in applications for standard authorisations will be a significant challenge for all professionals working in this sector.
In the coming weeks, emergency statutory guidance is likely to be issued by the Department of Health, giving healthcare and care professionals guidelines on key issues including (a) whether, and how, the assessments underpinning a DOLS can be conducted remotely, and (b) the circumstances in which a fresh DOLS authorisation would be required for a service user living in more restrictive arrangements than before. Trusts and CCGs would be well advised to keep a keen eye out for this guidance.
Is the Court of Protection still open?
In short – yes. If a court application needs to be made, then it must be made in the usual way.
COVID-19 has created additional difficulties for healthcare professionals, for example securing safe discharge destinations, carrying out capacity and best interests assessments, access to community or outside spaces for residents, combating social isolation from family and friends, and short notice fluctuations in staffing where staff or their family are in social isolation. These practical difficulties will be at the forefront of Court of Protection litigation in the months to come.
By continuing to apply the MCA 2005 principles and framework as effectively as possible within these changing circumstances, continuing to apply to Court where appropriate, and learning to adapt to the remote Court environment, healthcare and care professionals will be best placed to protect the welfare of protected parties.
How Capsticks can help
If you have any queries around what's discussed in this article, and the impact on your organisation, please speak to Charlotte Radcliffe or Francis Lyons to find out more about how Capsticks can help.
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