Practitioners should only carry out face-to-face Deprivation of Liberty Safeguards (DoLS) assessments “in exceptional circumstances” in areas covered by tier 2 and 3 Covid-19 restrictions.
In those higher-risk areas – which, as of tomorrow, will cover half of England’s population – best interests and mental health assessors should use remote techniques to communicate with the person, says the updated Covid-19 guidance on the Deprivation of Liberty Safeguards and Mental Capacity Act.
In lower-risk tier 1 areas, the guidance says independent mental capacity advocates (IMCAs) and relevant person’s representatives (RPRs) should work with hospitals and care homes to decide whether it is appropriate for professionals to visit the person.
The policy is in line with updated guidance on visiting care homes, which says visits, whether by professionals or others, should only be carried out in exceptional circumstances, such as the end of life, in tier 2 and 3 areas.
However, it comes just over a month after the last iteration of the MCA and DoLS Covid-19 guidance encouraged face-to-face assessments across the country.
Changes in guidance on face-to-face visits
Original guidance (April 2020): To carry out a DoLS assessments and reviews, remote techniques should be used as far as possible, such as telephone or videocalls where appropriate to do so, the person’s communication needs should be taken into consideration…DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential.
Updated guidance (September 2020): Face-to-face visits by professionals, for example for DoLS assessments, are an important part of the DoLS legal framework. These visits should occur if needed, for example to meet the person’s specific communication needs, urgency or if there are concerns about the person’s human rights.
Latest guidance (October 2020): Face-to-face visits by professionals are an important part of the DoLS legal framework. These visits should currently occur only if needed, for example to meet the person’s specific communication needs, urgency or if there are concerns about the person’s human rights…In areas where the local COVID alert level is high or very high, professional face-to-face visits should only occur in exceptional circumstances – for example, if the visit is the only way to meet the person’s specific communication needs, in urgent cases or if a meeting is needed to avoid a breach of the person’s human rights. Wherever possible, professionals should use remote techniques to remain in contact with the person.
Criminalisation unlikely for self-isolation breach
The updated guidance also addressed concerns that the law enforcing self-isolation risked subjecting those who lacked capacity to comply to criminalisation or unreasonable force.
The law introduces fines, starting at £1,000 for a first offence, for those who fail to comply with requirements to self-isolate but makes no provision for anyone who lacks the capacity to understand they must comply with the requirements.
The updated MCA and DoLS guidance says: “A person who does not follow all or some aspects of a notification to self-isolate does not commit an offence if they have a reasonable excuse for not doing so.
“If a person does not have mental capacity to make a decision to self-isolate, this is likely to mean that they will have a reasonable excuse not to follow all or some aspects of an instruction. In these cases, the person has not committed an offence.”
Self-isolation compliance ‘may not be in best interests’
Where a person who lacks relevant capacity is required to self-isolate, the guidance says that the relevant decision-maker – a friend or family member for a person living at home or a member of staff in a care home – should consider making a best interests decision.
It says that it is “highly likely” that it will be in the person’s best interests to follow the self-isolation rules, including because of the health benefits of doing so.
However, it adds: “In some limited circumstances, it may not be in the person’s best interests to follow self-isolation rules, for example because doing so might cause them severe distress or other negative, personal consequences.
“In these circumstances, every effort should be made to ensure that the person follows any aspects of self-isolation that can still be followed, in their best interests – for example practicing social distancing measures or reducing the amount of times they leave the place that they live.”