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.

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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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Bond Solon

Bond Solon, part of Wilmington Professional, is the UK's leading legal skills training provider for Health and Social Care Professionals. We offer a variety of legal-skills training courses to equip professionals with the key legal knowledge and skills to enhance their day-to-day professional roles and to act effectively and to best practice. All our courses are delivered by experienced trained lawyers. They are all subject-matter experts in the areas in which they train. The emphasis on quality of care and ever-increasing expectations inevitably puts pressure on all Health and Social Services staff. Combined with the growing number of Serious Incidents, Serious Case Reviews, and inquiry findings, there has never been a greater need for all professionals to be fully trained and skilled in order to carry out their work to best practice standards. Today, the law is embedded across Health and Social Services, and those professionals engage with the law on a daily basis. The study and practical application of the law by non-lawyers can be a challenge, yet this is a challenge that must be met. It is important that all practitioners are equipped with the key legal skills to enhance their day-to-day professional roles and to act effectively, lawfully and to best practice standards. Bond Solon is the UK’s leading legal training provider for both Health and Social Services practitioners. We work extensively with over 350 Adult and Children’s Services, Acute Trusts, Ambulance Trusts, Primary Care Trusts and Mental Health Trusts as well as a large number of regulatory bodies including; NHS England, HCPC, CQC, Parliamentary and Health Ombudsman, and Department of Health, to name a few. Bond Solon is also the UK’s leading provider of expert witness training and CPD events for medical experts. We provide training covering the core areas of expert witness work. In conjunction with Cardiff Law School we offer university certificated training for experts who act in civil, criminal and family law proceedings. Finally, we host an annual conference which is the largest gathering of expert witnesses in the UK.
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