Covid guidance on Mental Capacity Act and DoLS withdrawn

The government has withdrawn guidance on practice in relation to the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS) during the pandemic.

It said this meant social workers and other professionals should follow usual decision-making processes in relation to practice under the MCA-DoLS that relates to Covid-19.

The change means care homes and hospitals (known as “managing authorities” under DoLS) will no longer be able to use the two-page form created specifically for Covid-19 to make an urgent authorisation to deprive a person of their liberty for seven days, without oversight by the relevant council (“supervisory body”).

Under the Covid guidance, managing authorities had been able to submit this form to grant an urgent authorisation and then submit a request for a standard DoLS authorisation when practicable to do so.

Standard authorisations are only granted when the six assessments required under DoLS have been carried out and the supervisory body has determined that the conditions for a deprivation of liberty had been met.

Managing authorities must now submit the seven-page form that includes their application for a standard authorisation when making an urgent authorisation. While the shortened form only asked the managing authority to confirm that the conditions for an authorisation had been met and its purpose, the longer form requires much more detail on the authorisation’s purpose, as well as more information about the person and who should be consulted about their care or treatment.

Remote assessments

The Covid-19 guidance on MCA-DoLS, first issued in April last year, at the height of the pandemic’s first wave, initially said that practitioners should conduct DoLS assessments remotely as far as possible, using telephone calls or video conferencing.

This aspect of the guidance was subsequently changed, to encourage face-to-face assessments, as the pandemic eased, before being tightened again as the second wave hit last autumn.

Prior to its withdrawal this week, the guidance said: “To carry out DoLS assessments and reviews, remote techniques should be considered, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration. Views should also be sought from those who are concerned for the person’s welfare.

“Face-to-face visits by professionals, for example for DoLS assessments, are an important part of the DoLS legal framework. These visits can occur if needed, for example to meet the person’s specific communication needs, in urgent cases or if there are concerns about the person’s human rights.”

This no longer applies, meaning that face-to-face assessments should be carried out as they would have been under the pre-existing DoLS framework. The existing DoLS code of practice, which practitioners are required to have regard to, states: “The best interests assessor must involve the relevant person in the assessment process as much as is possible and practical, and help them to participate in decision-making. The relevant person should be given the support needed to participate, using non-verbal means of communication where needed…or the support of speech and language therapists. It may also help to involve others whom the relevant person already trusts and who are used to communicating with the relevant person.”