The new MCA and DoLS guidance – what you need to know

Related Sector: Health & Social Care

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

On the 15^th October 2020 the Government updated both the MCA and DoLS during the Coronavirus (COVID-19) pandemic guidance and additional guidance to incorporate the new regulations introduced around the 3 Tier system public health measures introduced to tackle the spread of Covid-19. Please click here to view the new guidance. 

Understanding the regulations and rules is difficult enough, but for professionals attempting to deliver the MCA on top of the complexities of those regulations and rules is understandably fraught.

Ensuring the MCA remains core-business is essential.

Sue Inker, Lawyer and Subject Matter Expert in MCA, discussed the following:

• MCA during Covid-19
• What has changed, and what has not?
• What this means on the ground?
• Article 5 vs Article 8 vs Article 2

This article is relevant to all frontline professionals working with adults in health and social care settings, including doctors, nurses, OTs, social workers, BIAs, IMCA’s, RPR’s,  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 do not always 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 has, on the 15^th October updated the 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 always 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 in the 3 Tier System 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 vs Article 2

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 whilst protecting their emotional wellbeing and mental health.

With the new guidance reminding professionals to consider human rights throughout their work during the pandemic it is essential that professionals have the legal literacy to connect how these legal frameworks interact and interplay with one another.

Author: Sue Inker, Lawyer and Subject Matter Expert in Mental Capacity
This article was first published on Tuesday 27^th October 2020.

MCA during Covid-19

This 1-day virtual interactive course is designed to assist health care professionals and social workers to think through mental capacity and deprivation of liberty and the implications of the COVID-19 pandemic in practice. Find out more about this course here

Advanced Mental Capacity Act (MCA) Day 1

This interactive 1-day course will give delegates a clear and in-depth understanding of the MCA framework, with the ability to apply it to complex cases. Delegates will consider complex decisions and explore relevant, current case law. Find out more about this course here

Advanced Mental Capacity Act (MCA) Day 2

This 1-day course is for experienced professionals who have attended the MCA Day 1 course, and who use the Mental Capacity Act 2005 on a regular basis. It will allow them to immerse themselves in theory for the day and to make the connections into how they deliver the MCA as core business into their everyday work within the larger legal framework of human rights. Find out more about this course here

Mental Capacity Act 2005 for Managers

This is a 1-day in-depth exploration of the duties and responsibilities under the Mental Capacity Act 2005 for senior staff and managers. Find out more about this course here