Healthcare Counsel’s Weekly Zoom last Wednesday concentrated on mental capacity and Covid.

Liberty Protection Safeguards

There was no way the LPS can be implemented by October as initially planned as the regulations and Code of Practice have still not been issued. Indeed, a draft of the Code of Practice has not yet been issued, and following that, there will be a period of consultation before it is finalised. In short, it does not look like the LPS will be implement soon. A new timetable will be announced in due course.

However, there is every reason to think that the LPS will be implemented eventually. The LPS were proposed following a project by the Law Commission, the body responsible for reviewing law in England and Wales and making recommendations for legal reform. A protocol agreed between the Law Commission and Government in 2010 included a requirement for a relevant minister to give an undertaking that there is a ‘serious intention to take forward law reform’ in the proposed area before the Lord Chancellor approves inclusion of a project in the Law Commission’s program. Moreover, there is both a practical and legal need for reform. Currently, DoLS only applies to care homes and hospitals and of course people can be detained in other places. Currently, the only way to do that lawfully is to apply to the Court of Protection which is costly and burdensome to all involved. There is also need for a regime that includes children aged 16 and 17 who are not covered by DoLS.

In short LPS is delayed but is likely to be implemented eventually. Without the regulations and Code of Practice, we only have the skeleton of the regime so it would make sense to wait before investing in training.

Assessments during Covid

DHSC issued helpful guidance on DoLS and Covid available here.  It includes the following:

“To carry out DoLS assessments and reviews, remote techniques should be used as far as possible, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration.”

In some cases, for example for people who find direct face to face communication distressing, remote assessments can be more effective than on-site assessments.

Providers facing requests by local authorities to visit homes to conduct assessments should draw their attention to the guidance and explain their concerns about the risk of Covid transmission. If local authorities persist, providers should in the first instance seek their reasons as to why they do not consider that assessments can be conducted remotely. In some cases, the local authority may have valid concerns in respect of certain individuals and their particular needs. The starting point should be an attempt to work in collaboration to facilitate a high-quality assessment without requiring risky visits.   Each case must be carefully considered in a person-centred way. A position by a local authority that face to face assessments are its usual practice, as reported by one contributor on the call, is not adequate.  Nor would a blanket refusal by a provider to permit visits by assessors under any circumstances.

The guidance also suggests being pragmatic by taking into account evidence taken from previous assessments of the person.

Covid Testing and Mental Capacity

39 Essex Street’s Court of Protection team published a guide to this topic available here. It is a clear and useful guide that I recommend as a first port of call.

For those who may lack capacity in relation to the decision as to testing, the process should be as with all decisions:

1.     Assess whether the person has capacity to make the decision for themselves (with support if needed). That includes understanding the information relevant to the decision. which in turn includes, among other things, understanding the consequences of a positive test such as isolation. This is not a simple issue because of the complexity of the government guidance: a person may be required to isolate if they do not have a test at all but have symptoms, or if they live with others who have had Covid, regardless of whether they are tested.

2.     If the person lacks capacity, determine whether anyone is lawfully authorised to make the decision on their behalf (either a health and welfare LPA or a Deputy). Check the documents to ensure that the authority covers this decision.

3.     If there is no one who has authority to make the decision on their behalf, make the decision in their best interest. The 39 Essex Street guide is particularly useful here. A test can be in a person’s best interests even if it is intended to protect people other than the resident  The resident’s previous wishes to be a good citizen come into play here. Even in cases where it is clear that the person would not have wished to be tested, it may be possible to argue that testing is lawful as other factors are also important in determining best interests. The MCA requires consideration of all relevant circumstances and that includes, in this case, risk of harm to others. As with all best interests decisions, there should be appropriate consultation as set out in section 4 of the MCA and the Code of Practice.

Particular care needs to be taken for anyone who may need to be restrained in any way. If it is likely that the person will resist, force may be used if it is necessary and proportionate. Providers should draft an assessment in advance setting out why restraint is necessary to protect harm to the resident, and how the restraint used will be the minimum necessary to conduct the test. The assessment should also consider whether restraint is in the person’s best interests (this is separate to whether the test itself is in the person’s best interests: conducting a test, and using restraint for the purposes of the test, are two different things).

I would urge providers to seek advice if:

1.     Restraint is needed and the purpose of the test is to prevent harm to others rather than to the person being tested: and/or

2.     The test itself would cause serious distress to the individual.

Again, blanket decisions are inadequate. Decisions should be made on a case by case basis.

Deprivation of Liberty and DoLS

Almost all residents who live in a care home who lack capacity should already be subject to DoLS. The additional restrictions put in place as a result of Covid are unlikely to require any further authorisation in the vast majority of cases if they are therapeutically necessary for the resident in question. In cases where restrictions are necessary only to protect others, the DHSC guidance recommends seeking advice from your local health protection team.

Minimising Impact of Restriction – Quality of Life Considerations

From a risk perspective, providers are unlikely to face negative consequences for following government guidance to protect residents and others if they act in a proportionate way. But that includes giving careful consideration to minimising the adverse impact of restrictions on residents. Again, this should be done on a case by case basis.  It will include maximising contact with families and friends (such as through the use of technology) and maintaining meaningful activities. Care must be taken to monitor the mental wellbeing of residents and changes acted upon quickly. Providers should also seek external advice on best practice.

Those with Capacity

We did not discuss this on the call but I have had queries about this subsequently. What do you do in respect of residents who have capacity and wish to leave the home contrary to shielding guidance or your home’s lockdown policy?

In a nutshell:

1.     Try to explain the reasons for the restrictions.

2.     Explore whether there is anything you can do to reduce the impact on them, for example by shopping on their behalf.

3.     If they still wish to leave, explain that you may need to end the placement in order to protect other residents and/or contact public health who may use powers to enforce the restrictions.

A similar approach would apply if someone with capacity refuses to be tested.

In practice, I would urge providers to seek legal advice if residents cannot be persuaded to agree restrictions (and/or testing).

This Week’s Zoom

The series will continue this Wednesday at 10.30. This week we will be discussing communication – how do you communicate:

–        with relatives who are becoming increasing concerned about your lockdown policy?

–       with stakeholders if you have any Covid cases?

–       with the press if they contact you for comment?

We will be joined by crisis communications expert Chris Gilmour from Beattie Communications who will be on hand to answer any questions.

We will also cover providers’ experiences of accessing Infection Control funding. The government grant is ring-fenced and worth around £1000 / bed but are providers able to access it and how are they overcoming red tape put in place by local authorities?

The login details remain the same. If you’d like to join for the first time, please message me or email me:

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