COVID-19 and the impact on MCA/DoLS

Sue Inker, lawyer and subject matter expert in mental capacity, discusses the effect COVID-19 has had on the Mental Capacity Act.
COVID-19 and the impact on MCA/DoLS

The public health measures introduced to tackle the spread of COVID-19 are understandable, but they have had many unwanted ramifications.

Worryingly, one such ramification is the fear that the MCA [Mental Capacity Act ] has been forgotten as core-business, and that people are making decisions in best interests without the core principles and assessments of capacity.

This article is relevant to all frontline professionals working with adults in health and social care settings, including doctors, nurses, OTs, social workers, BIAs, mental health assessors and safeguarding leads. Please feel free to forward this article to relevant colleagues.

MCA during COVID-19

The Coronavirus has exposed many people to harm and in extreme cases death, but older people and those with complex long term conditions such as dementia, learning disabilities, and significant mental health needs are likely to be additionally affected by the safeguards provided in the Mental Capacity Act 2005.

What has changed, and what has not?

The Mental Capacity Act 2005 is still primary legislation and has not changed. The Coronavirus Act 2020 does not change any of the obligations imposed under it. There have been no easements nor any amendments to the Act. MCA is still core-business.

We are all experiencing a huge impact on our day-to-day lives as a result of the pandemic, and many of the decisions we are making are being done with the backdrop of the coronavirus itself and the social distances measures put in place.

It is crucial for all adult health and social care professionals to understand how these decisions impact people who may lack capacity to make the relevant decisions during the pandemic.

However, as the regulations did not make any provision in relation to those with impaired capacity to make decisions, this means that professionals must identify what the person is required to understand in respect to the public health measures.

The Government published two sets of non-statutory guidance for professionals to follow during the pandemic.

It is essential that all staff understand this along with other relevant guidance, to ensure the MCA is being applied correctly in day-to-day practice. 

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