Related Sector: Health & Social Care

Has the Mental Capacity Act 2005 withstood the pressure of COVID-19 and remained core business as usual for professionals, or has it been brushed aside in the crisis?

The public health measures introduced to tackle the spread of Covid-19 are understandable, but they have had many unwanted ramifications.

Worryingly, one such ramification is the fear that the MCA has been forgotten as core-business, and that people are making decisions in best interests without the core principles and assessments of capacity.

This article is relevant to all frontline professionals working with adults in health and social care settings, including doctors, nurses, OTs, social workers, BIAs, mental health assessors and safeguarding leads. Please feel free to forward this article to relevant colleagues.

MCA during Covid-19

The Coronavirus has exposed many people to harm and in extreme cases death, but older people and those with complex long term conditions such as dementia, learning disabilities, and significant mental health needs are likely to be additionally affected by the safeguards provided in the Mental Capacity Act 2005.

What has changed, and what has not?

The Mental Capacity Act 2005 is still primary legislation and has not changed. The Coronavirus Act 2020 does not change any of the obligations imposed under it. There have been no easements nor any amendments to the Act. MCA is still core-business.

We are all experiencing a huge impact on our day-to-day lives as a result of the pandemic, and many of the decisions we are making are being done with the backdrop of the coronavirus itself and the social distances measures put in place.

It is crucial for all adult health and social care professionals to understand how these decisions impact people who may lack capacity to make the relevant decisions during the pandemic.

However, as the regulations did not make any provision in relation to those with impaired capacity to make decisions, this means that professionals must identify what the person is required to understand in respect to the public health measures.

The Government published two sets of non-statutory guidance for professionals to follow during the pandemic.

It is essential that all staff understand this along with other relevant guidance, to ensure the MCA is being applied correctly in day-to-day practice.  

What this means on the ground?

As the regulations do not differentiate between those without impaired decision making and those with, professionals need to be able to correctly identify what is the salient information upon which to assess incapacity.

A huge number of best interest decisions taken by health and social care professionals during the past 15 weeks should have been made using the Mental Capacity Act 2005 for people unable to make decisions for themselves due to temporary or permanent incapacity because of an impairment in the functioning of the mind or brain.

This, together with the practical issues of how to conduct capacity assessments in the context of social distancing, are some of the challenges practitioners are struggling with.

Professionals are having to think of new creative ways of working, especially around assessments of incapacity. Professionals are using virtual assessments, telephone assessments, evidence gathered by others, evidence gathered from other sources, emails, and use of outside spaces to name a few.

It is essential that all need to well thought out and evidenced to withstand scrutiny later on.

Article 5 vs Article 8

The fundamental human rights of autonomy and liberty are being brought into sharp focus in respect of public health measures introduced by the Government in response to the pandemic.

Human Rights are all about balance between risk and protection vs autonomy and empowerment, so professionals need to consider and balance the risk of keeping people physically safe against protecting their emotional wellbeing and mental health.

Professionals must have the legal literacy to connect how these legal frameworks interact and interplay with one another.

Coronavirus and the LPS

It also appears very likely that the implementation of the LPS will be delayed beyond October 2020.

Although we are still waiting for the formal announcement from government, in commenting on the implementation of the Liberty Protection Safeguards on the National Mental Capacity Forum Webinar on 26th April 2020, Alex Wakefield of the Department of Health and Social Care stated:  

“I am happy to be as candid and honest with all you guys working in this area as I can be and we completely accept that given the situation we are in with the pandemic and incredibly important work that the health and social care sector is doing to tackle the pandemic, an implementation deadline of October 2020 is unrealistic and that is the advice we have put to government ministers. Government is considering timetable carefully and an announcement is imminent.   We are working on that and will be able to say something about this very soon.”

This also appeared to be echoed by Baroness Finlay in the same forum on 3rd June 2020, meaning that working under the Coronavirus and MCA/DoLS will remain core business for some time.

Author: Sue Inker, Lawyer and Subject Matter Expert in Mental Capacity

This article was first published on Friday 12 June 2020.

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MCA during Covid-19
We are delivering a one-day interactive virtual course on the Mental Capacity Act 2005 to help health and social care professionals, social workers, BIAs, RPRs, IMCAs and others think through mental capacity and deprivation of liberty safeguards and the implications of the COVID-19 pandemic in practice. Find out more about this course here

DoLS/BIA Legal Literacy
This one-day interactive virtual course is aimed at ensuring that those operating under the Mental Capacity Act Deprivation of Liberty Safeguards are able to do so lawfully. Find out more about this course here

BIA Qualification
With the implementation of the LPS likely to be implemented late 2021 (see article above), it is highly recommended that you train your workforce to become BIAs. This will give them the legal understanding around a deprivation of liberty, and also put them ahead of the game to fast track into the new roles when the LPS finally does come in. Find out more about the course here

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