A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
On 9 April 2020 the Department of Health and Social Care (DHSC) issued guidance for hospitals, care homes and supervisory bodies regarding the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS) during the COVID-19 pandemic.
The guidance makes it clear that it is only valid during the pandemic and applies only to those caring for adults who lack the relevant mental capacity to consent to their care and treatment.
It is important to remember that the principles of the MCA and DoLS still apply.
Changes to care and treatment
It may be necessary to change the usual care and treatment arrangements for someone who lacks capacity to consent to these changes. There should not be blanket decisions made; decisions must be taken on a fact-specific basis for each person.
If a person lacks capacity to provide consent for treatment, a best interest decision under the MCA should be made. Consideration should be given to whether;
- an advanced decision to refuse specific treatment has been made. If such a decision has been made, then the relevant treatment cannot be provided.
- If a person's personal welfare power-of-attorney or deputy does not consent to the treatment, it cannot be provided.
If there is a dispute about this, an application to the Court of Protection should be considered.
If care or treatment results in a person not being free to leave and places them under continuous supervision and control, they are deprived of their liberty. This deprivation of liberty will need to be authorised. The following steps should be considered;
- Does the person already have a DoLS authorisation or a Court Order? If so, does the existing authorisation cover the new arrangements? If it does, this is not a new deprivation of liberty, but it may be appropriate to carry out a review of the arrangements.
- If the proposed arrangements are more restrictive than the current authorisation allows for, a review should be carried out.
- If the arrangements are new and are not covered by a current authorisation, a referral should be made to the supervisory body.
Should a new authorisation be required, an urgent authorisation can be applied for and will take effect instantly. It will last for a maximum of seven days, which can be extended for a further seven days. The DHSC recognises the need for a faster process during these times, so has published a new short inform (at appendix B of the guidance) for urgent authorisations.
Decision-makers in care homes and hospitals will need to decide whether the new arrangements constitute a deprivation of liberty and if so, whether a new DoLS authorisation will be required. In most cases, it is likely it would not be. Again, cases should be considered on a fact-specific basis; blanket decisions should not be made.
If a person is deprived of their liberty in a setting outside of a care home, an application should be made to the Court of Protection, as the supervisory body cannot grant authorisations outside of care homes.
Protecting human rights
As long as providers can demonstrate a good quality of care and treatment and are following the principles in the MCA and code of practice, it is the DHSC’s view that providers have done everything that can be reasonably expected in the circumstances to protect the person's human rights of the settings.
As the DoLS regime still applies, assessments and reviews still have to be carried out. Remote techniques to speak with people should be used, and evidence can be taken from previous assessments.
What if the person becomes infected with COVID-19?
Where life-saving treatment is being provided, including for the treatment of COVID-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.
Coronavirus Act 2020 gives public health officers powers to impose proportionate restrictions upon people who have the virus. It may be necessary to restrict a person’s movements, and the use of the MCA should be used in the first instance. If the powers under the MCA are not appropriate, contact should be made with local health protection teams who will consider enforcing further measures.
What this means for people receiving care
If you or a loved one lacks capacity to consent to care or treatment, you will be cared for in line with what professionals believe to be in your best interests, unless you have made an advanced decision or appointed an attorney to deal with decisions about your health and welfare.
Your usual care and treatment may be changed.
A change in your care or treatment may result in you being deprived of your liberty. This means you will not be free to leave the place you are cared for and will be under continuous supervision and control. If you are deprived of your liberty, this has to be authorised by the supervisory body or a court.
As part of the authorisation of your deprivation of liberty, meetings should be held with assessors. They will not be able to meet with you in your home but should have discussions with you over the telephone or via Skype or FaceTime.
If you become infected with COVID-19, restrictions will be imposed upon you, which mean you have to self isolate by staying indoors and not having contact with other people. If you do not follow the guidance to self-isolate, further restrictions may be put in place.
Please contact Rebekah Sambrooks for further information about any of the issues raised in this briefing.
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