The guidance in relation to the Deprivation of Liberty Safeguards (DoLS) during the Coronavirus pandemic has now been released and whilst there are some helpful clarifications and examples, the guidance does not say anything particularly surprising.
Whilst the principles of the Mental Capacity Act (MCA) and the DoLS process still apply during the pandemic, the focus of the guidance appears to be on those situations where a DoLS authorisation will not be required.
The guidance emphasises that in many cases a best interest decision will often be sufficient to provide the necessary care and treatment to a person who lacks the capacity to consent, and where life-saving treatment is provided (e.g. for the treatment of COVID-19), this will not amount to a deprivation of liberty if the same treatment would be provided to a person who has capacity.
Where this does not apply and the acid test is satisfied (i.e. the individual is under continuous supervision and control and is not free to leave), the guidance states that consideration should be given as to whether an existing DoLS authorisation covers any new arrangements but if it does not, a review or referral for a new authorisation may be required. Importantly, DoLS cannot be used if the arrangements are in place to prevent harm to other people.
Where a new authorisation is required, an urgent authorisation can take effect instantly, lasting for seven days with the possibility of an extension for a further seven days, if required. A shortened form accompanies the guidance and this should be completed “as soon as is practically possible after the deprivation of liberty has been identified and started”.
Crucially the guidance states that “as long as providers can demonstrate that they are providing good quality care and/or 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”.
The guidance can be found using the following link and there is a very helpful flowchart at page 11: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878910/Emergency_MCA_DoLS_Guidance_COVID19.pdf.
If you require any advice in relation to DoLS or the MCA generally, please do not hesitate to contact our healthcare lawyers on firstname.lastname@example.org or 01202 786135.