DAC Beachcroft partner and expert in mental health, Gill Weatherhill, discusses what impact Covid-19 has had on DoLS, and whether we should expect the pandemic to have a lasting effect on the management of mental capacity and deprivation of liberty
At the onset of the Covid-19 pandemic in the UK, the health sector faced many decisions that needed to be made at pace and in the face of a rapidly evolving situation; many of which were supported by developments in legal frameworks and emerging guidance.
However, whilst amendments to the Mental Health Act were passed (although not yet implemented) in the Coronavirus Act, no amendments were contained in the Act in relation to the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS).
Although there is some speculation around whether there has been an increase in deprivation of liberty during the pandemic, there is actually evidence of a decrease in the use of DoLS: the CQC has reported a drop in notifications from adult social care services of 31% since the start of lockdown, and in hospitals by 65%. The likely reasons for this are two-fold.
Firstly, responding to Covid-19 required a rapid and unprecedented reorganisation of priorities right across the health and social care system. This may have resulted in a belief that the importance of complying with the safeguards was in some sense diminished, or that the practicalities of assessment were impossible in the face of unprecedented pressures.
Secondly, the whole of the health and social care sector had been gearing up for DoLS to disappear and be replaced by the Liberty Protection Safeguards (LPS), and DoLS was perhaps side-lined as less important in light of its expected demise.
However, as the sector moves out of the initial stages of the pandemic, every provider is working to get back to business as usual, and in doing so they must recognise the need to get DoLS right, particularly as we now know that LPS will not be with us until April 2022. Forward thinking providers will still want to think about the foundations of the LPS, but they will also need to re-visit their compliance with DoLS because the expectation, from the CQC and others, will be that the legal frameworks are fully complied with.
What have been the legal changes?
While amendments to the Mental Health Act were passed (and not yet implemented) in the Coronavirus Act, the Mental Capacity Act 2005 (MCA) and DoLS were untouched, albeit, the Department of Health and Social Care did issue guidance stating:
IT IS IMPORTANT
GET BACK TO
CAPACITY AND DOLS
AS RIGOROUSLY AS
THEY WOULD HAVE
‘The Department recognises the additional pressure the pandemic will put on the DoLS system. Fundamentally, it is the Department’s view that as long as providers can demonstrate that they are providing good quality care and/treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights’.
And, so while the guidance provides a general steer on the potential impact of Covid-19 in terms of the MCA/DoLS, it cannot, of course, change the legal obligations imposed by MCA/DoLS. Consequently, all care providers, managing authorities and supervisory bodies will need to take care that they are still complying with their legal obligations.
What does the future hold?
It is important that providers get back to managing capacity and DoLS as rigorously as they would have pre-pandemic, particularly in anticipation of a surge in the number of providers doing more restricting and ‘depriving’. For instance, where necessary restrictions need to be made that aim to limit the spread of Covid-19: such blanket restrictions are the most likely to be challenged as excessive restrictions on vulnerable people.
The sector has already seen the beginning of legal action brought by individuals challenging measures (such as restriction of leave or denial of access to visitors) that they allege deprive them of, or unnecessarily restrict, their liberty. The CQC also takes a dim view of blanket restrictions which are not individually care planned and risk assessed.
Another challenging area is around the issue of testing: if an individual does not want to be tested, yet it is required for the safety of others, and as part of the wider national pandemic response, then this may be difficult to justify on a ‘best interests’ basis.
The key is, that if a provider is taking steps in respect of incapable adults, or depriving them of their liberty, then this needs to be in accordance with the legal and regulatory framework.
The practicalities and workarounds of the capacity and DoLS processes may have attracted some leeway since the onset of the pandemic, but going forward this is unlikely to be the case.