The Department for Health and Social Care (DHSC) has published guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity. The guidance looks at deprivation of liberty – DOLS.

The emergency guidance for decision makers ensures that they are clear about the steps they need to take during this period.

The full guidance can be found on GOV.UK here: https://www.gov.uk/government/publications/coronavirus-covid-19-looking-after-people-who-lack-mental-capacity

During the Covid-19 pandemic, care arrangements for someone who lacks capacity to make decisions are expected to change and these changes are extremely likely to be more restrictive. These will include, amongst others, restrictions on visitors, movement from the care setting and mixing with others. There will also be cases where the individual has to be moved to hospital.

The guidance published by the DHSC states that:

“in most cases, changes to a person’s care … in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person’s best interests.”

In most cases there will be someone to consult with and make decisions that restrict an individual’s liberty that are in their best interests. However, there may be disagreements or no family or friends available to discuss decisions with. Some of the changes will also have a powerful impact on some people restricting movement and liberty.

The most significant change in the guidance is in paragraph 9 where it states:

“Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19. During the pandemic, it is likely that such life-saving treatment will be delivered in care homes as well as hospitals, and it is therefore reasonable to apply this principle in both care homes and hospitals. The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19.”

There is some case law that can be applied to these guidelines. In R (Ferreira) v HM Coroner for Inner South London and others [2017] EWCA Civ 31, it was ruled by the Court of Appeal that the individual, Maria Ferreira “was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital”.

Whilst this is applicable to hospital settings where lifesaving treatment is given, it’s difficult to see how this can compare with a care home setting. In the DHSC guidance there is no clear guidance on what lifesaving treatment would be given in a care home setting. There is always a scope for challenge, which could be difficult given the current restrictions in place.

There is some comfort for care settings in the guidance where it says if they have followed the principles of the Mental Capacity Act then “they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights”.

Annexe A of the guidance has a clear flowchart that can assist with decision-making and ensuring the right path is followed.