The COVID-19 pandemic, the Coronavirus Bill and the Mental Capacity Act 2005:

The Coronavirus Bill; Non-Statutory Guidance; Court of Protection Guidance; Commentary and Practical Suggestions

The MCA 2005 is designed to safeguard the rights and interests of some of the most vulnerable people in society, but this group now also includes some of those most vulnerable to the COVID-19 pandemic.  Practical measures must be taken to ensure physical health and to prevent the spread of the infection, but must be taken within the structure of the MCA 2005.

The Coronavirus Bill

All remaining stages of the Coronavirus Bill were completed on Wednesday 25th March 2020 without any amendments to the MCA 2005 or the DoLS process. In the House of Lords on 24^th March, at Second Reading, Lord Bethell, for the Government, addressed DoLS as follows:

I thank those noble Lords, including the noble Lord, Lord Oates, who raised the issue of the deprivation of liberty safeguards. We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus. Therefore, we have decided not to alter deprivation of liberty safeguards in primary legislation. However, we think that we can achieve significant improvement to the process through emergency guidance. That will include making clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment. We are especially grateful to the noble Baroness, Lady Finlay, and other experts, who have worked with us on this.

The aspects of the Bill most likely to impact – albeit tangentially – on this area are:

1. The provisions (currently in Schedule 11) amending the Care Act 2014. As these stand, these essentially provide that the duties to assess and meet eligible needs of adults and carers are downgraded to powers unless (in England) a failure to provide care and / or support would give rise to a breach of an individual's human rights.  In Wales a duty only arises where a failure to do so would mean that the person may be experiencing or at risk of abuse or neglec  As noted above, however, this does not change the need to comply with the MCA and the DoLS process.
2. The provisions enabling "temporary registration in emergencies" of individual or groups of nurses, health professionals (including OTs, SALTs and PTs) and social workers, "if the Registrar considers that the group is comprised of persons who are of a type who may reasonably be considered fit, proper and suitably experienced persons to be registered as members of the profession in question with regard to the emergency". This could encompass final year students and/or recently retired practitioners and is intended to ease the anticipated burden on services arising from the pandemic.  It would be sensible to check that:
   • your guidance for new staff on your practices and procedures is up to date, to allow these newly (re)registered practitioners to be on-boarded quickly; and
   • if these newly (re)registered practitioners are to be conducting assessments without having previously met P, that previous reports and assessments are available;
3. Following opposition concerns, the powers are to be reviewed every six months; this would enable Parliament to adjust the measures taken, so it is important to watch for these reviews and whether measures are relaxed or even tightened, so watch this space.

Non-Statutory Guidance

Guidance on the DoLS process and the application of the MCA 2005 is expected imminently from the Department of Health and Social Care.

The two relevant DHSC guidance documents that we do have so far are very broad in scope:

1. "Responding to COVID-19: the ethical framework for adult social care"[1] (19^th March 2020): this is a "framework document" setting out eight broad ethical principles, and is designed to "provide support to ongoing response planning and decision-making to ensure that ample consideration is given to a series of ethical values and principles when organising and delivering social care for adults. Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making" (emphasis added).
   • The first principle of "Respect" requires that "where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person's best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf" (emphasis added)
   • The fifth principle of "Accountability" emphasises the need for those taking decisions to be "transparent about how and which decisions need to be made and on what basis; and prepared to justify which decisions are made and why, ensuring that appropriate records are being kept.

This document, unprecedented in our experience, will be of considerable importance for those seeking to apply what duties (or powers) survive the passage of the Coronavirus Bill in relation to the Care Act and Social Services and Well-Being Act.

2. "NHS's COVID-19 Hospital Discharge Service Requirements"[2] (19^th March 2020): this also reiterates 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. If the 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" (emphasis added).
   • If the MCA 2005 and DoLS still apply then, beyond encouraging practitioners, advocates and the courts to work swiftly, this guidance provides only limited assistance, save to reinforce that considerations of authorisation of deprivation of liberty should not delay discharge. However, there may well be cases in which the best interests of P require determination before discharge can take place, so as to ensure that their Article 8 rights are not placed after their Article 5 rights (as per the Neary case).  If so, discharge cannot properly take before those best interests are determined, if necessary by the Court of Protection.

Guidance from the Court of Protection

Hayden J, the Vice-President of the Court of Protection, has issued four sets of guidance for judges, practitioners and users of the CoP, all of which focusses on the need to protect P, parties, witnesses and court staff from infection, whilst continuing the Court's work.

The key messages are:

1. Judicial visits to P should be only made where "assessed as absolutely necessary" and that "Visits to care homes are to be strongly discouraged." Alternative arrangements such as telephone and video call technology should be considered first (see Guidance of 13^th March 2020[3]);
2. Practitioners and judges need to bear in mind "creative options" to enable P's voice effectively to be heard in proceedings;
3. Whilst there are creative solutions to "logistical" problems (such as serving P with documents, filing bundles at Court, and electronic signatures), where applications are made for orders that P lacks capacity or interim orders on the basis that there is "reason to believe" that P lacks capacity, the Court still needs to be satisfied of this. If applicants are entirely prevented by the pandemic from obtaining any evidence of P's lack of capacity but still seek an order, then they need to explain to the Court exactly why the evidence cannot be obtained and exactly what it is that the Court is asked to do on an interim basis;
4. As of 24^th March 2020, following the Prime Minister's broadcast on Monday 23^rd March, "no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing".[4] This does not mean that any case of complexity requires an in-person hearing (see this report of Mostyn J's urgent, complex hearing conducted over Skype[5]).  The existing procedures for assessing cases and allocating judges are intended to ensure identification of "genuinely urgent" cases;
5. Hearings with time estimates of 2 hours or less will be conducted by telephone and it is the applicant's role to make the necessary arrangements (see COPGN5[6]);
6. When attending court for any "genuinely urgent" hearings that require in-person attendance, it is essential that there is a 2m separation at all times, including whilst queuing to enter the court building, to pass through and during security checks, before and whilst in court (Guidance, 23^rd March 2020[7])

A working group – the HIVE Group – has been set up under the Vice-President, with senior practitioners including Vikram Sachdeva QC and Alex Ruck Keene, to ensure that the processes of the Court of Protection are kept under review as the impact of the pandemic continues to unfold, and the interests of P kept central.

Advance care planning

Advance care planning is of importance at all times, but will be of particular importance in relation to those who are at particular risk of catching COVID-19, so that it is clear what they would, and would not, wish in terms of medical intervention, including admission to ICU and the treatments available on ICU.  This may not guarantee access to such intervention, but is going to be of very considerable importance in terms of assisting medical decision-making, as well as securing, insofar as possible, the right outcome for the individual at a point when they may have lost decision-making capacity.  Where implemented, the ReSPECT process[8] will be of importance (and is also of importance because it can be used even where a person does not currently have capacity).  Individuals and their families can also be directed to charities such as Compassion in Dying, who have resources to create advance decisions to refuse medical treatment.[9]

Commentary

What we know so far clearly indicates that the MCA 2005 and the current DoLS structures remain in place during the pandemic.  Plainly, however, there are going to be challenges for local authorities, social workers and carers to ensure compliance with the DoLS system in the light of Government guidance to work from home, maintain social distancing and the strong imperatives not to visit residential care and nursing homes.

Until we have guidance from DHSC as to the application of DoLS, in particular, local authorities are having to develop, at speed, their own processes to manage the competing demands upon them.  By way of example, and with thanks to Lorraine Currie, MCA and DoLS Manager for Shropshire County Council, we reproduce the material parts of the guidance that she has prepared for her area.  She – and we – would reiterate that such should be read in light of the guidance that is then forthcoming from the DHSC.

Practical measures for reducing the need to visit P, or the number of visits to P, as part of the DoLS process could include:

For urgent new applications for Standard or Urgent Authorisations:

1. Consider whether the s12 doctor could visit to complete the mental health and the mental capacity assessments, to limit the number of professionals visiting. A Best Interests Assessor could then complete the rest of the assessments by phone interviews (as Schedule A1 MCA 2005 does not require BIAs to have an in-person meeting, or even consult, with P).
2. Where significant restrictions are indicated or P is strongly objecting, the BIA may need to visit to assess P in person. Here, perhaps shorter authorisation periods with a reassessment planned later would be appropriate, or a longer authorisation period with a short-to-mid-term review planned, within 2-3 months.
3. If visits are absolutely impossible [which we suggest is very likely to be the case in relation to most hospital situations at present]:
   1. Can the mental health assessment be completed from existing notes?
   2. Is there a capacity assessment for the same or similar decision with adequate evidence, on which the BIA could rely?
   3. Is the person nonverbal, such that capacity is likely lacking on this basis alone?
   4. Is there evidence from other sources and previous assessments rendering it likely that capacity is lacking for most decisions other than day-to-day?
   5. If a capacity assessment can be completed by any of the above methods, then the remaining assessments could be completed by telephone; and
4. Ensure that the restrictions on visiting P's placement are noted in the assessments;
5. Identify how information was obtained/ assessments completed. The following wording is suggested:

For the BIA report: "This assessment occurred at a time when public health measures had been put in place by HM Government to contain the spread of the COVID-19 virus. Professionals were being advised only to carry out essential visits to care homes. When completing this assessment, I had to balance the need to protect X's Article 5 rights against the need to protect him/her from transmission of the virus.  COVID-19 infection would have posed a grave risk to X in view of his/her underlying health conditions. In view of these concerns, I therefore decided to base my assessment on existing documents and on the views of X's carers and family/friends rather than visiting him/her in person."

For the Authorisation document:

"I note that the BIA decided not to assess X face to face in view of the risk of COVID-19 transmission.  I agree that this is the best way of promoting X's Article 5 rights whilst protecting him from serious illness.  This authorisation will be reviewed when public health restrictions are lifted."[10]

For applications to renew a Standard Authorisation:

1. If there are recently expired capacity assessments and the BIA can confirm with the care home and the RPR that there is no change in P's presentation or circumstances, the expired assessments could be used by the BIA, repeating the information in the DoLS forms and recording that they had confirmed by telephone with an identified individual at the placement that nothing has changed;
2. Where there have been significant changes (such as an increase in dependency or restrictions) the BIAs could still complete renewal assessments by telephone, recording any significant new information in a Form 3 (Combined Best Interests Assessment) and identifying the circumstances which have prevented a visit;
3. If P is now objecting, or objecting more strongly, then BIAs should highlight the strength of objection and consider advising on an application to the Court of Protection at the earliest opportunity.

More broadly, and, as ever, it is essential not to "dress-up" resource-based decisions in relation to deprivation of liberty – even in a time when resources may be stretched to the limit – as best interests decisions.  This is only likely to generate s.21A challenges, which will be a further pressure on resources.

Where it is necessary to deviate from normal practices or procedures (such as by taking the practical measures suggested above) it is essential that you have clear systems in place for explaining why those deviations took place, how they might have impacted on the assessments and what steps were taken to mitigate those impacts.  The suggested wording for BIAs and authorisations above is a good example of this.

Finally, it is important to help P and P's friends and family understand what is happening and why it will be different from how things have happened before; consider using information from charities and other third sector organisations to explain about COVID-19 and what is being done about it.[11]  Human Rights Watch has suggested that: "information about COVID-19 should be accessible and available in multiple languages, including for those with low or no literacy. This should include qualified sign language interpretation for televised announcements, as Taiwan has done; websites that are accessible to people with vision, hearing, learning, and other disabilities; and telephone-based services that have text capabilities for people who are deaf or hard of hearing. Communications should utilize plain language to maximize understanding."

A good example of a practical resource is this resource produced by the charity Books Beyond Words, a wordless story that will help people to understand what to do if "you have Coronavirus and how to keep yourself and those who you care about safe.  The story also shows how to safely help others who may be self-isolating."[12]

Further guidance will be forthcoming as the situation develops. For now, practical steps to protect P, carers, professionals and CoP users – whilst abiding by the MCA 2005 – is the order of the day.

[1] https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care#how-to-use-the-framework

[2]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874213/COVID-19_hospital_discharge_service_requirements.pdf

[3] https://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2020/03/CoP_HaydenJ_13032020.pdf

[4] Guidance from the Vice-President of the Court of Protection, 24^th March 2020

[5] https://www.lawgazette.co.uk/practice/first-all-skype-trial-tests-crisis-working-at-cop-/5103541.article

[6]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/792782/cop-gn5-eng.pdf

[7] https://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2020/03/VP-COP-Third-COVID-19-Guidance-23-March-2020.pdf

[8] https://www.resus.org.uk/respect/

[9] https://compassionindying.org.uk/

[10] Language suggested by Martin Sexton and the Salford DoLS Team, via Lorraine Currie.

[11] A very helpful summary of the issues in play here was prepared by Dr Oliver Lewis and is available here:  https://insights.doughtystreet.co.uk/post/102g27s/disability-coronavirus-and-international-human-rights

[12] https://booksbeyondwords.co.uk/downloads-shop/beating-the-virus