DoLS, Ferreira and COVID-19

I have been meaning to write this post for a while and just when I was ready to share it, the government updated their MCA guidance in relation to the coronavirus. If you haven’t read it, it is available here:

As it turns out, I’m glad they did update the guidance, because the additional guidance does address some of the concerns I had about the first version of the guidance in so far as it referred to the giving of life saving treatment.

You’ll hopefully be aware of the Ferreira case, but if not, it’s here:

What that case was about, was whether an individual with a mental impairment who was receiving treatment on an intensive care unit was under state detention and thus an inquest into her death would require a jury. To decide this, the court considered in detail whether Ms Ferreira was deprived of her liberty on the ward.

Ultimately the court decided she was not deprived of her liberty. And I am summarising significantly here, but essentially the court considered that her treatment was not substantially different to the treatment she would have received if she did not have an underlying mental impairment. As such, she was not deprived of her liberty because of her impairment of the brain or mind so no DoLS authorisation would be needed. Rather, she was receiving the same life saving treatment that would be given to anyone in her physical state, and it was her own state of ill health that prevented her from leaving the ward, not the actions of the staff on the ward.

Like many of you, this is a familiar concept to me and the practitioners I work with.

I was, however, somewhat surprised when the initial DoLS and MCA guidance implied that the principle of life saving treatment not amounting to a deprivation of liberty would apply more widely in the context of the coronavirus outbreak. As a principle, the case could apply in a care home environment if the core situation was the same, namely the individual’s own ill health being so severe. But after that guidance was released, I began to hear rumblings that perhaps DoLS wasn’t needed if the individual had coronavirus because any treatment they received would be needed to save their life. And this made me nervous, because yes, many people with coronavirus have ended up needing treatment on ICU wards with ventilators etc. And Ferreira definitely applies in those cases.

But to suggest that lesser treatment for coronavirus might also fall under this principle seemed like a risky venture indeed.

Fortunately, this is clarified somewhat by the additional guidance, which quite clearly states that this principle will not apply in the majority of cases, bringing the guidance more in line with the case law.

So any local authorities who had taken the original guidance to heart will likely need to consider a change in approach now that this has been clarified.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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