Tue, 28 Jul 2020
The Social Care Institute for Excellence (SCIE) has recently published guidance (July 2020) which aims to help people across social care and health settings apply the best interests decision making framework contained in the Mental Capacity Act 2005 for or on behalf of people who lack capacity in the context of the COVID-19 pandemic.
It is worth reinforcing that the 2005 Act remains unaltered by the Coronavirus Act 2020, but the guidance is a welcome tool to add to the armoury of those applying the relevant principles in this area, especially in the context of the challenging practical circumstances brought about by COVID-19.
COVID-19 AND REVIEWING BEST INTERESTS DECISIONS
The new guidance is clear that whether and how to review a best interests decision because of COVID-19 will need to be judged on an individual’s circumstances, and a list of factors is suggested. This includes:
- P’s susceptibility to COVID-19 (e. whether they fall into the high or moderate risk categories);
- a change in Government guidance or Regulations governing the lockdown;
- whether options for P’s care or treatment have become unworkable as a result of COVID-19.
SPECIFIC COVID-19 ISSUES
The guidance also helpfully addresses some discreet issues posed by COVID-19, which include:
The checklist under section 4 of the 2005 Act requires decision makers to take into account all relevant circumstances – which includes here the likelihood of P catching what could be a fatal virus – and P’s past and present wishes and feelings, and their beliefs and values. In terms of testing those who lack capacity, the guidance warns against “blanket policies” requiring everyone in a care setting to be tested automatically, but goes on to note that:
‘There may be a small number of cases where it may be in the person’s best interests not to be tested. An example could be where the person is likely to be extremely distressed by the process. However, in most cases it is likely (although not certain) that the person, if they had the relevant capacity, would have consented, because they would want to know if they had COVID-19 so it could be treated. In many cases this may be a decisive consideration.’
The guidance envisages that COVID-19 testing is unlikely to be deemed serious medical treatment, and so P will not be entitled to an IMCA as of right. However, it is suggested that bringing in an advocate may be sensible when P is without the support of friends and family in this situation. In some extreme cases, it is noted that where testing is opposed by P and their family, an application may need to be brought in the Court of Protection.
Whilst recognising that best interests decisions about social distancing are in some respects relatively straightforward (i.e. breaching government guidance on social distancing is highly unlikely to be in P’s best interests), the guidance reminds practitioners to be ‘mindful of people’s rights to a private and family life under Article 8 of the European Convention on Human Rights, and so support people to maintain their relationships with families and friends as much as possible.’
The guidance also notes that alternatives to face-to-face contact with loved ones of P, such as video calls, or conversations through closed windows, should be considered. Further, P’s emotional and mental wellbeing will need to be balanced alongside their physical wellbeing:
‘An outing with friends or family, albeit with some additional infection risk, may have significant psychological benefits. Each decision must be made on the basis of the individual circumstances of the person you support, using the checklist’.
What of the P who does not understand the need for social distancing etc.?
There are of course individuals who lack capacity and who struggle to understand the reasons behind government guidance on social distancing and self-isolation. In some circumstances the guidance reminds us that such individuals may be the subject of the DOLS regime, and their freedom to move—such that social distancing can be maintained—may already be lawfully restricted as a result of those measures. Others though may need to have their DOLS reviewed if further restrictions are required to give effect to guidance on social distancing. The guidance recommends that professionals
‘…carry on trying to explain the need to abide by the rules; to use whatever resources and communication aids might work for the person; and to support them with vigilant kindness.’
The government has published guidance on DOLS during the pandemic, which should also be referred to, and can be accessed here.
Should P go home?
The pandemic has cast a spotlight on those who reside and receive care and treatment in care settings, with concerns raised about group living in the context of COVID-19. The guidance provides a useful list of things to consider when weighing up the pros and cons of whether a move home for P would be in their best interests—
- What are the actual viable alternatives? The guidance reminds us that:
‘People typically move into care homes when there are challenges to living in their own homes which cannot be overcome. It would be unlikely, in most cases, that whatever challenges prompted the move into a care setting have gone away, so the practicalities of a move back home would need to be considered and weighed up against concerns people may have about the risks of group care at the present time.’
- Can P move in with family members? The following factors are suggested as being relevant for this issue:
- the suitability of the proposed accommodation, in terms of the safety and privacy afforded to P;
- whether family members are prepared to self-isolate themselves so as to avoid passing the virus onto P;
- whether any safeguarding concerns would arise with all the pressures associated with house sharing and caring;
- whether the move would be temporary or permanent; the guidance notes the practical problems that may be faced in this situation:
‘Repeated changes of accommodation can in themselves be harmful, especially to older people with dementia. Is a permanent move with family members anticipated, or is the move intended to be short-term? If it is short-term, is the care setting willing or able to hold a place open for the person? The risk of an inadvertent permanent move would need to be weighed up in any decision-making process.’
The guidance is at pains to point out throughout that any best interests decision taken on behalf of P must be grounded in their individual circumstances, and decisions cannot be made on the basis of generalisations and blanket policies. As a matter of public law decision making, and the fundamental principles underpinning the Mental Capacity Act 2005, that is surely correct.
Those involved in making best interests decisions on behalf of individuals who lack capacity face difficult balancing exercises every day, even without a pandemic featuring in the mix of relevant considerations. As the SCIE guidance points out, though, it’s worth remembering that—
‘The ethos of the MCA is generally to enhance, not restrict, people’s lives, and we need to guard against the pandemic becoming a reason to be unduly protective of people where that is not warranted by the risks…
…COVID-19 will now be a factor to be weighed up, but the tools and techniques for factoring it into the best interests decision-making process have not changed.’
Ben is a public law barrister at No.5 Chambers with a broad public law practice which includes Court of Protection work.