23rd March 2020
Two important guidance documents have come out today (19 March) regarding COVID-19 which include reference to the MCA.
The first is a document entitled Responding to COVID-19: The Ethical Framework for Social Care, which, in essence, transplants the ethical framework developed for the healthcare response to pandemic flu to the social care context, by setting out a series of eight ethical values and principles which recognise that with:
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.
It is, as far as I am aware, unprecedented as a document in this context, but of real importance, especially in light of the revised approach to the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014 in the Coronavirus Bill published on 19 March, which essentially provides 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 neglect.
The guidance document includes (under the principle of respect) express reference to require 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
The second is the NHS’s COVID-19 Hospital Discharge Service Requirements, in which (at page 31), appears the following:
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.
We await further guidance from DHSC in relation to MCA and DoLS, but is perhaps striking that (as it stands) the Coronavirus Bill provides for changes to the MHA in terms (for instance) of enabling detention on the basis of one rather than two medical recommendations, but made no mention of the MCA in terms of alleviating statutory responsibilities in relation to the discharge of obligations under DoLS. At least at present, therefore, what the guidance can do in terms of responding to issues being raised on the ground as to the practical operation of the DoLS would appear to be limited.
(Other guidance relating to mental health law, the law more generally and the virus can be found in this useful collection by Jonathan Wilson at Mental Health Law Online).