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The consequences of Covid-19 on the Mental Capacity Act 2005

Our People - Lilian Efstathiou
1 April, 2020

Covid-19 in the UK is spreading rapidly and is expected to continue doing so for a long time.  Already, there are several care homes reporting cases of Coronavirus (Covid-19). 

It is known that older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from Covid-19. Some of those falling in the higher risk groups, particularly older adults living with dementia are very likely to fall within the Mental Capacity Act’s 2005 (MCA) scope. 

The MCA provides protection for the rights of people lacking mental capacity. It governs when and how decisions can be made on behalf of people who are deemed to lack the mental capacity to make decisions for themselves. The MCA applies to a variety of decisions including health and welfare matters. It makes provision that if a person is assessed to lack the mental capacity to make decisions for themselves, then that decision (with some exceptions) can be made by others in their best interests.

The MCA can also be applicable to people who cannot make decisions because they are unconscious due to a severe illness or hallucinating due to fever. Many Court of Protection cases concern people who are treated in ICU, where family and professionals disagree over which treatment should be given. The MCA also allows for detention in hospitals or care homes – the deprivation of liberty safeguards (DoLS) on grounds that it is in the incapacitated person’s best interests.

So how is Covid-19 affecting the MCA and people who lack capacity? 

Government guidance[1] thus far provides that, 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.

If a incapacitated person is hospitalised due to Covid-19, The ‘NHS’s COVID-19 Hospital Discharge Service Requirements’ provides that: 

Duties under the Mental Capacity Act 2005 still apply during this period. 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.”

The new Coronavirus Bill which is currently going through Parliament mentions changes in relation of the Mental Health Act 1983 however it remains silent on the MCA in terms of relieving statutory responsibilities in relation to the discharge of obligations under DoLS. 

Therefore, it appears that despite increased pressures on healthcare and social care workers, as of yet, the same duties remain in terms of making a best interest decision for P’s ongoing care, but such duties should be carried out in a way that does not delay discharge.

Making a ‘best interests’ decision in relation to hospital discharge will require that they engage with P and their close family members in order to ascertain their likely wishes and feelings. This can be a time-consuming process and requires professional resources; something that will be in increasingly short supply as ICUs fill up. It also involves engaging with relatives whose visits may well be restricted to prevent the risk of spreading coronavirus. There is therefore a high possibility that ascertaining the feelings and wishes of a Covid-19 patient who lacks capacity will prove to be a difficult task, and may not receive the due care and attention that is required. 

Further, despite the fact that there appear to be no differences in terms of statutory duties under the MCA the new Health Protection (Coronavirus) Regulations 2020 may indirectly diminish one of the most important principles of the MCA, that beforea decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.  The new Coronavirus Regulations do include powers of detention ‘for the purposes of screening, assessment and the imposition of any restrictions or requirements under regulation 5’ where ‘ the Secretary of State or a registered public health consultant has reasonable grounds to believe that P is, or may be, infected or contaminated with Coronavirus’ and ‘the Secretary of State or a registered public health consultant considers that there is a risk that P might infect or contaminate others.’ So the Regulations grant powers that may well be used to impose restrictions within care homes on those who are infected and therefore may pose a risk to others. 

In addition, most care homes are now not accepting any external visitors. This should not mean that contact has to cease altogether, as it is important to be flexible and creative in such circumstances, and consider whatever options might be available, whether that be use of social media, video platforms such as Skype, or even just the telephone. 

It remains unclear how far such restrictions may extend and if this may result in more restrictive care arrangements for P. As the number of cases continue to rise, it is likely that we will soon see how such powers of detention may apply in practice for people who lack capacity. 

[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

Solicitor
Lilian Efstathiou is a solicitor working in the Court of Protection and Wills, Trusts & Probate departments.

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