New Guidance from the Department of Health and Social Care – How to Apply the DoLS Regime in a Pandemic

During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.

Over the coming months we will see changes to the existing care and treatment arrangements of a great many vulnerable patients in response to the Covid-19 outbreak. During a period when care providers need to be increasingly flexible and the time of healthcare staff is a precious resource, there is a concern the DoLS regime will delay essential decision-making in response to the challenges of the pandemic.

The response to that concern by the new guidance has three essential underlying elements:

• The usual principles of the DoLS regime and best interests decision-making continue to apply.
• In that context, decision-makers should exercise restraint when considering making DoLS applications.
• In the vast majority of cases, a best interests decision will suffice.

You can find a copy of this new guidance here.

Other key points of the guidance include:

• Decision-makers in hospitals, care homes and in supervisory bodies should take a proportionate approach to all applications. Decisions should be made on an individual basis, rather than in respect of groups of individuals.
• In most cases, changes to an individual’s usual care and treatment arrangements will not constitute a new deprivation of liberty and will not require a fresh DoLS authorisation. In such cases a best interests decision will usually be satisfactory.
• A DoLS authorisation is not necessary for the provision of life-saving treatment where the same treatment would have been provided to another patient without a mental disorder.
• An application for a DoLS authorisation should be made using the normal processes.
• Supervisory bodies will continue to use the usual processes for prioritising DoLS applications.
• DoLS assessors should not carry out face-to-face visits unless such a visit is essential. DoLS assessors are encouraged to carry out assessments and reviews remotely via telephone or video-call. Assessors may also look to previous assessments as evidence when making a decision (whether this is appropriate should be judged on a case-by-case basis).
• In cases where a patient is being isolated and their movements restricted to protect others from Covid-19 infection it will be more appropriate for a Public Health Officer to exercise their powers under the Coronavirus Act 2020.
• The guidance suggests that using the powers of a PHO may also be appropriate in cases where an individual has fluctuating capacity.

The guidance contains a flow-chart to assist with deciding whether a DoLS application is needed in any particular situation. The guidance also contains a new shortened template to use for urgent applications at Annex B.

If you need assistance with any aspect of the DoLS regime during the pandemic, do get in touch. Our team of Court of Protection specialists are here to help.