Updated: coronavirus guidance on caring for patients who lack capacity

On 25 May I wrote a blog on the Vice President’s key messages on how The Court of Protection must not be placed in ‘lockdown’ which can be read here. As a follow up to that blog, I wanted to let you know that the Department of Health and Social Care (DHSC) has published updated guidance for professionals and carers looking after adults who lack the relevant mental capacity to consent to their care and treatment.

The updated guidance documents include:

• The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic;
• Additional guidance;
• Easy read version of the guidance;
• Annex A -  a helpful flow chart for decision-makers in hospitals and care homes; and
• Annex B - a DoLS Covid-19 Form 1B for urgent authorisation.

The guidance in essence covers:

• MCA remote assessments by telephone and video link.
• The position regarding emergency authorisations and treatment during the Covid-19 pandemic; and
• Information regarding the use of further restrictions upon those suspected of or being infected with the virus.

Seven key points

The main “takeaways” from the guidance are:

1. The guidance is valid during the pandemic and applies until withdrawn by the DHSC.
2. During the pandemic the principles of the MCA and the safeguards provided by DoLs still apply.
3. Where life-saving treatment is being provided, including treatment for Covid-19, then an individual concerned will not be deprived of their liberty if the treatment given is the same as would be given to any person without mental disorder. DoLs will therefore not apply.
4. Care and treatment should continue to be provide in the person’s best interests.
5. During the pandemic decision-makers in hospitals and care homes will need to decide if new care and treatment arrangements amount to a “deprivation of liberty” (most will not) and if there is a new “deprivation of liberty” whether a new or urgent authorisation is required (in many cases that will not be necessary).
6. The flow chart in annex A is designed to assist decision-makers to make decisions quickly and safely.
7. There is a shortened urgent authorisation form at annex B which can be used during the emergency period (see above).

A summary of key points can be found at page 3 of the guidance.

Supporting you

The healthcare team is extensively involved in CoP proceedings principally acting on behalf of NHS commissioners and both public and private sector providers of health and care  – don’t hesitate to get in touch if we can be of any help or assistance.