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Mental capacity arrangements during lockdown

April 8, 2020

Are there any changes to the Mental Capacity Act 2005 following the enactment of the Coronavirus Act 2020 (the ‘Act’)?

The Coronavirus Act does not directly amend the Mental Capacity Act (MCA). However, the provisions of the Act are likely to have implications for those who lack capacity and it’s important that providers are aware of the provisions of the Act and relevant guidance.

Changes to the Mental Health Act

The provisions in Schedule 8 part 2 of the Act, which temporarily amend the Mental Health Act (not yet activated), may affect incapacitated persons. These provisions relate primarily to the functions of doctors and the extension or removal of time limits relating to detention and transfer of patients.

Police powers

The emergency provisions conferring powers on the police and public health officers within Schedule 21 of the Act relating to potentially infectious persons do not specifically mention persons who lack capacity. Paragraph 21 of Schedule 21 envisages the production of relevant guidance which we hope will address this issue.

Deprivation of Liberty Safeguards (DoLS)

The DoLS regime has not been amended. The Government has announced plans to issue emergency guidance from the Department of Health and Social Care (DHSC) on practical issues affecting DoLS and this is anticipated in the very near future.

During the Lords debate of the Coronavirus Bill, it was recognised that change would be required to ‘achieve significant improvement’. Guidance is likely to include when a DoLS authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment.

Care Act

Provisions in the Coronavirus Act impact responsibilities of local authorities under the Care Act 2014 to assess and meet eligible needs of adults and carers. These temporary ‘easements’ were brought into force on 31st March by way of regulations. They should only be exercised by local authorities where this is essential in order to maintain the highest possible level of services.

Compliance with the MCA and DoLS is still required. Local authorities will remain under a duty to meet needs where failure to do so would breach an individual’s human rights under the European Convention on Human Rights.

The DHSC’s summary of impacts of clauses in the Bill noted that, during the peak of the virus, it may be impossible for local authorities to continue to deliver at their typical service levels or undertake the detailed assessments that they would usually provide.

In brief, the provisions remove the requirement for local authorities to carry out detailed assessments, financial assessments, care and support plan reviews and/or meet eligible care and support needs, or the support needs of carers, in the same manner they would usually operate.

DHSC guidance document

Responding to COVID-19: the ethical framework for adult social care intends to support decision making in respect of adult social care throughout the duration of the pandemic. Principles such as ‘respect’ and ‘inclusivity’ broadly reflect the tenets of the Mental Capacity Act Code of Practice as regards promoting participation of individuals and consulting others where appropriate. The principle of ‘accountability’ requires providers to keep appropriate records of the decisions taken throughout.

Temporary and Emergency Registers

The Coronavirus Act removes barriers to allow recently retired NHS staff and social workers to return to work in order to increase the number of professionals able to assist during the pandemic. Registration is also possible for some final year students.

Providers will need to consider how information regarding residents’ care and support needs and organisational policy can be communicated as efficiently as possible.

As regards both new starters and working with professionals on the emergency register, The British Geriatric Society (BGS) has developed a resource, Geriatric basics for non-specialists, for those who have limited experience in geriatric medicine. Similarly, the NHS has issued advice to front line staff specifically in relation to making reasonable adjustments for those with a learning disability and/or autism.

The importance of not making assumptions about capacity, and taking appropriate steps to facilitate communication, are emphasised within this advice.

Capacity Assessments and Best Interest decisions

Where an individual is assessed as lacking capacity, decisions taken must be in accordance with the Section 4 of the MCA best interests checklist. Restrictions imposed to minimise risk which prevent access to the community, travel and contact with others might well cross the threshold into what may be considered a deprivation of liberty. Therefore providers will need to carefully consider whether DoLS authorisation is required..

Court of Protection

Guidance regarding revised practices issued by Mr Justice Hayden, Vice-President of the Court of Protection, envisages capacity assessments taking place by video. In earlier guidance, Mr Justice Hayden confirmed that visits by judges and legal advisers should only be made where that is assessed as absolutely necessary.

Hospital discharge

The NHS’s COVID-19 Hospital Discharge Service Requirements reiterate that the MCA 2005 continues to apply during the pandemic:

‘If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. It is noted that if proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge.’

Advance Care Planning

On 31st March, the Care Quality Commission, British Medical Association, Care Provider Alliance and Royal College of General Practitioners issued a joint statement regarding the importance of having a personalised care plan in place, especially for older people, those who are frail or have other serious conditions. The joint statement confirms:

‘Where a person has capacity, as defined by the Mental Capacity Act, this advance care plan should always be discussed with them directly. Where a person lacks the capacity to engage with this process then it is reasonable to produce such a plan following best interest guidelines with the involvement of family members or other appropriate individuals.

‘Such advance care plans may result in the consideration and completion of a Do Not Attempt Resuscitation (DNAR) or ReSPECT form.’

The statement is clear that decisions must be made on an individual basis and must not be applied to groups of people.

Guidance from the British Geriatrics Society suggests that care homes should work with GPs, community healthcare staff and community geriatricians to review Advance Care Plans as a matter of urgency with care home residents. This should include discussions about how COVID-19 may cause residents to become critically unwell, and a clear decision about whether hospital admission would be considered in this circumstance. Transfer to hospital may not be offered if it is not likely to benefit the resident and if palliative or conservative care within the home is deemed more appropriate.

With thanks to
Julia Appleton, Partner, RadcliffesLeBrasseur LLP Email:

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