Revised MCA covid-19 guidance published

Last week, the government published its updated guidance on application on the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the pandemic. I read this over the weekend (no, I don’t have anything better to do!).

If you haven’t seen it yet, it’s here.

It doesn’t look to me like a huge amount has been updated. It still discusses the application of the Ferreira judgement, but I have spoken about that already.

Beyond that, the key points to take away from it, beyond the obvious are, firstly, that it is explicitly recognised that DoLS cannot be used if the purpose of the restrictions is the protection of others. I have given my thoughts on how it may be possible to take this into account as part of best interests here, but any deprivation of liberty would need to be authorised by the court, not through DoLS.

It also discusses the possibility that new authorisations might be need if care plans are changed. If you’ve ever seen the standard court order on this, you’ll know that the arrangements can’t be made more restrictive without seeking further court approval. In urgent situations, the changes can be implemented whilst authorisation is sought, but in other situations, authorisation must be sought before the additional restrictive measures are used.

There is also some discussion about the reintroduction of face to face assessments, where appropriate. But I anticipate remote assessments will still be the norm for a while.

The suggestion that public health might assist in deciding whether additional restrictive measures are needed is interesting, and certainly hasn’t been my experience, thus far. So if that is happening in your area, I’d very much like to hear from you.

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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