The Coronavirus Act 2020 was passed without any amendments to the MCA 2005 or the DoLS process. In short, the MCA 2005 and the current DoLS structures remain in place during the pandemic but there will be significant practical issues arising in adhering to these structures.
It was recognised at Second Reading of the Coronavirus Bill in the House of Lords that emergency guidance would be needed and "significantly improve the process". This guidance is expected imminently from DHSC and if and when this guidance is provided, it should be followed. The House of Lords anticipated that such emergency guidance would make "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."
In deciding not to alter DoLS safeguards in primary legislation there was a recognition 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."
As matters stand the MCA and DoLS must be complied with in the usual way. The current changes through the Coronavirus Act 2020 have only incidental relevance. For example, retired healthcare professionals returning to the front line will need urgent guidance on current practice and procedures. You should therefore ensure that your guidance and procedure documents are up to date so that staff can be brought up to speed quickly. In practical terms, if assessments are being conducted by these new staff, copies of previous assessments and reports should be made available to them.
In terms of guidance already issued by the DHSC the "COVID-19 Hospital Discharge Service Requirements" ("the Requirements") issued on 19 March 2020 clearly states that the MCA 2005 continues to apply during the pandemic, but does not provide any specific clarification. The Requirements states:
"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."
In terms of the current position, in the absence of emergency guidance from DHSC on this issue and on the basis that visits to hospitals are likely not to be possible, there are a number of practical considerations for acute Trusts to consider pending further guidance.
- It is important to have systems in place for explaining why it has been necessary to depart from normal/usual practice and how assessments may be impacted, and what steps were taken to limit any anticipated impact.
- It should be explained to the patient and friends/family why the process is slightly different etc due to Covid-19.
- To avoid attendance by the s12 doctor and best interests assessor (BIA) assistance will need to be given to them to allow the mental health assessments be completed from existing notes and the BIA to assess via telephone.
- It is also important to ensure that in the patient's notes (as well as the BIA report and authorisation document) that the assessment took place within the constraints of government measures to contain Covis-19, and making it clear that visiting could not take place, and that matters will be reviewed when government restrictions are lifted.
Finally, there is no power for a hospital to detain a patient who has suspected or confirmed Covid-19. Contact the police, Public Health England (PHE) or those directors of PHE in the local authority urgently in these circumstances. A public health consultant /police have powers to detain and should be notified of such a situation urgently.
A further briefing will be provided when the anticipated emergency guidance is issued by DHSC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.