We recently published an article in relation to DoLS. As is the way, in these pandemic times, new emergency guidance has now been published by the UK government.
The updated guidance on DoLs contained in The Mental Capacity Act (2005) and Deprivation of Liberty Safeguards (DoLS) during the COVID-19 pandemic can be found here.
Changing restrictions during the pandemic
During the pandemic it may be necessary to change the usual care arrangements for somebody who lacks capacity to consent (P), and these are likely to be more restrictive. A common example is restricting visitors to P, restricting P from leaving or mixing closely with others, or moving P to a new hospital or care home, to better use resources and separate COVID-19 /non- COVID-19 patients and residents.
The DHSC guidance emphasizes in bold text that:
"in most cases, changes to a person's care ... in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person's best interests".
Making some decisions with the agreement of P's friends and family, to ensure that P does not leave, is not visited by many different relatives, or is moved to a non-COVID-19 location, may be easily agreed as 'in the best interests of P'. However not all will agree, or will have a family or friend to discuss with, and some restrictions will be hugely significant with a disproportionate impact on particular individuals.
Life-saving treatment in care homes (applying the Ferreira judgment)
The boldest change, particularly for care homes and acute hospital wards, is paragraph 9 of the DHSC guidance which states:
"Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19. During the pandemic, it is likely that such life-saving treatment will be delivered in care homes as well as hospitals, and it is therefore reasonable to apply this principle in both care homes and hospitals. The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19."
In R (Ferreira) v HM Coroner for Inner South London and others  EWCA Civ 31, the Court of Appeal ruled that patients in Intensive Care Units (ICU) are not generally 'deprived of their liberty'. It could not be said that patients in ICU were restricted by the State and therefore 'not free to leave the accommodation permanently', because the true cause of their lack of freedom, was their underlying physical illness. This was contrasted with the position of those in Cheshire West, where restrictions preventing P from leaving were taken because of their mental disorder. In Ferreira it was said "She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation), but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital."
The DHSC guidance says;
- This means that, for example, a person who is unconscious, semi-conscious or with acute delirium, and needs life-saving treatment (for COVID-19 infection or anything else) is highly unlikely to be deprived of liberty. They must be treated based on a best interests decision.
- If additional measures are being put in place for P, when they are receiving life-saving treatment, for example to stop them from leaving the place of treatment, then the "acid test" set out in Cheshire West (set out below) should be considered.
- If they are:
not free to leave the accommodation, and
under continuous supervision and control,
then the 'acid test' is met, and they are being deprived of their liberty.
The flowchart from the DHSC at Annex A summarises the first step (above) as "Is the person receiving life-saving treatment and is that treatment materially the same as that given to a patient without a mental disorder?". If it is the same treatment then "DoLS does not apply".
The DHSC test is not the same as that described in Ferreira as it considers whether P is actually physically restricted by their physical infirmities and by the treatment, rather than by a restriction imposed by the State. It is not clear in the guidance what life-saving treatment is anticipated to be given in a care home, whilst the patient is unconscious or semi-conscious for a period of time that would otherwise require a DoLS authorisation.
It is difficult to see how life saving treatment in an ICU can find a direct comparator in a care home setting.
Of note, the guidance also states "Where the person is receiving end of life care, decision makers should use their professional judgement as to whether DoLS assessments are appropriate and can add any value to the person's care or treatment".
Paragraph 21 may be reassuring for providers during the pandemic. The DHSC guidance states that if the provider has followed the principles of the Mental Capacity Act (e.g. acting in the best interests of the individual), "then they have done everything that can be reasonably expected in the circumstances to protect the person's human rights".
It remains to be seen how transposing the application and use of the Ferreira judgment from ICU treatment into care homes works in practice and whether this will be challenged. There is clearly a need to keep legal processes proportionate during a pandemic in order to keep them working. It is essential to maintain necessary legal safeguards, and avoid overly restrictive situations occurring without scrutiny from the supervisory bodies.
Summary of Action
- Decision makers in hospitals and care homes need to decide:
(a) What the new arrangements (restrictions)
are needed for each individual
(b) Whether new arrangements constitute a 'deprivation of liberty' for that individual (applying the DHSC guidance, including whether life-saving treatment is being given, and also identifying the root cause of the restrictions whether physical illness, or for their mental disorder, and applying the acid test), and
(c) If the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation is required.
- If a new authorisation is required:
Decision makers should follow their usual DoLS processes to seek authorisation, including for urgent authorisations (there is a new, shorter 'urgent authorisation' Form at Annex B.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.