COVID-19 Healthcare: Emergency Deprivation Of Liberty (DoLS) Guidance From The DHSC

• Published date: 08 May 2020
• Author: Ms Gemma Brannigan and Judith Duffin
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Employment and Workforce Wellbeing, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Clyde & Co

We recently published an article in relation to DoLS. As is the way, in these pandemic times, new emergency guidance has now been published by the UK government.

The updated guidance on DoLs contained in The Mental Capacity Act (2005) and Deprivation of Liberty Safeguards (DoLS) during the COVID-19 pandemic can be found here.

Changing restrictions during the pandemic

During the pandemic it may be necessary to change the usual care arrangements for somebody who lacks capacity to consent (P), and these are likely to be more restrictive. A common example is restricting visitors to P, restricting P from leaving or mixing closely with others, or moving P to a new hospital or care home, to better use resources and separate COVID-19 /non- COVID-19 patients and residents.

The DHSC guidance emphasizes in bold text that:

"in most cases, changes to a person's care ... in these scenarios will not constitute a new deprivation of liberty, and a DoLS authorisation will not be required. Care and treatment should continue to be provided in the person's best interests".

Making some decisions with the agreement of P's friends and family, to ensure that P does not leave, is not visited by many different relatives, or is moved to a non-COVID-19 location, may be easily agreed as 'in the best interests of P'. However not all will agree, or will have a family or friend to discuss with, and some restrictions will be hugely significant with a disproportionate impact on particular individuals.

Life-saving treatment in care homes (applying the Ferreira judgment)

The boldest change, particularly for care homes and acute hospital wards, is paragraph 9 of the DHSC guidance which states:

"Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of COVID-19, then this will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to any patient without a mental disorder. This includes treatment to prevent the deterioration of a person with COVID-19. During the pandemic, it is likely that such life-saving treatment will be delivered in care homes as well as hospitals, and it is therefore reasonable to apply this principle in both care homes and hospitals. The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19."

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