The Mental Capacity Act (2005) and DoLS During the Covid-19 Pandemic
Guidance produced by the Department of Health and Social Care 2020.
Summary of key points:
•This guidance is only valid during the COVID-19 pandemic and applies to those caring for adults who lack the relevant mental capacity to consent to their care and treatment. The guidance applies until withdrawn by the Department. During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
•Decision makers in hospitals and care homes, and those acting for supervisory bodies will need to take a proportionate approach to all applications, including those made before and during the pandemic. Any decisions must be taken specifically for each person and not for groups of people.
•Where life-saving treatment is being provided, including for the treatment of COVID-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder. The DoLS will therefore not apply.
•It may be necessary, for a number of reasons, to change the usual care and treatment arrangements of somebody who lacks the relevant mental capacity to consent to such changes.
•In most cases, changes to a person’s care or treatment in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person’s best interests.
•In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:(a) If new arrangements constitute a ‘deprivation of liberty’ (most will not). (b) If the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation may be required (in many cases it will not be).
•This guidance, particularly the flow chart at Annex A, will help decision makers to make these decisions quickly and safely, whilst keeping the person at the centre of the process.
•If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.
There is a shortened Urgent Authorisation form at Annex B which can be used during this emergency period.