Rapid Response Guidance Note: Covid-19, Social Distancing and Mental Capacity

News Victoria Butler-Cole QC, Sian Davies, Alexander Ruck Keene 31st March 2020

This is the first in what we anticipate will be a series of Rapid Response Guidance Notes relating to COVID-19 and the MCA 2005. An overview of some of the key issues (as they stood at 25 March 2020) can be found in this article written by Alex and Rosie Scott, and resources relating to the MCA 2005 and COVID-19 have been gathered by Alex here.

The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect.

What follows is a general discussion, as opposed to legal advice on the facts of individual cases, which the team can provide. This document cannot take the place of legal advice. Read the full note here: Mental Capacity Guidance Note

Please note that this note addresses the position prior to the amendments (in England) to the health protection regulations on 1 June 2020 which substantially reduced the restrictions on movement.  Until we have a chance to update this note, the most recent position can be found here.

Related Barristers

Victoria Butler-Cole QC

Sian Davies

Alexander Ruck Keene