17th July 2020

During the current pandemic and subsequent lockdown we have all experienced significant changes in our lives. Many people have spent more time inside our homes in the last few months than we would expect to do across a whole year, and for many of us the sense of cabin fever has become almost palpable as contact with our colleagues and those loved ones who do not reside with us has become limited to faces on screens. Terms like “Zoom fatigue” have entered our collective lexicon as we have adapted to a new way of living, and the eagerness to return to some semblance of normality has grown with every passing week.

Vulnerable people who are living in long-term isolation or locked units

It seems only fair therefore, as the isolation measures begin to ease, that we spare a thought for those for whom lockdown is likely to be a much more sustained state of affairs. For the 410,000 or so people residing in Care Homes and Nursing Homes, and the 50,000 or so people detained in mental health units, (based on most recent government statistics from 2018), the ability to reduce restrictions on accessing the community are likely to be much more limited. This will particularly be the case for those homes and units whose residents fit within the higher risk groups such as the elderly, or people with pre-existing physical health conditions. It does not appear to be too hyperbolic or exaggerated to suggest that for some settings, normal access to the community may not fully resume until a vaccine or cure for Covid-19 can be found and widely administered, a reality for which no concrete timescale currently exists.

Navigating Deprivation of Liberty Safeguards (DoLS) during Covid-19 pandemic

It seems relevant therefore to discuss how the current legislation around Deprivation of Liberty Safeguards (DoLS) is being applied, and whether the available guidance at this time is sufficient to inform these safeguards in a society gripped by a global pandemic. The Coronavirus Act (2020) enforced adjustments to the Care Act and potential adjustments to the Mental Health Act, but was explicit in stating that there would be no changes to the Mental Capacity Act, including those aspects of the act that pertain to DoLS. This was an important and welcome statement as it reinforced the idea that even in the midst of an unprecedented crisis it would still be necessary to ensure that principles of best interest and least restrictive options should be preserved for the most vulnerable people in society.

While this is extremely laudable it does leave some questions unanswered, specifically:

If the principles of the MCA are to be preserved in a locked down society, how is this to be accomplished? Any deprivation authorised before the commencement of lockdown would, as all DoLS authorisations are required to do, have outlined exactly the limit of what restrictions could be placed upon the individual. Needless to say these authorisations would have been put in place without the additional restrictions required during lockdown in mind.

Individuals who would usually access day services or other community activities will have been unable to do so, individuals who display symptoms consistent with Covid-19 or have not been able to be tested to confirm the absence of the illness have required to be isolated from their peers, sometimes for extended periods.

Access to family visits or interaction with other peers have also been required to be limited in many cases. It is not however the intention here to criticise these measures, nor the care staff who are enacting them, as in the majority of cases these actions would be justifiable and entirely appropriate, rather it is the intention to point out that in many cases it has become necessary for restrictions that exceed the boundaries defined in a DoLS authorisation to be put in place.

What the government guidance says

The current government guidance (issued June 15th 2020, nearly three months into the lockdown) states as follows: During the pandemic, different arrangements may be put in place for a person under their existing DoLS authorisation. In many cases, changes to the person’s circumstances will not need to be reviewed during this period as the authorisation that is already in place may already provide the legal basis for any arrangements providing they are not much more restrictive. For example, limiting the person’s visits from family members or friends to prevent the spread of the virus but enabling them to contact them virtually instead would not be much more restrictive and would therefore not need to be reviewed during this period.

If the arrangements are much more restrictive, then you should inform the Supervisory Body as soon as possible. In all other cases, it would be proportionate to delay reviews until it is reasonably practical to carry out the review, but if a review cannot be delayed for whatever reason you should inform the Supervisory Body that a review needs to take place. If substantial conditions of the existing DoLS authorisations cannot be met during the pandemic, you should also consider a review.’

While this appears to be clear on the face of things, it is plausible and possible that terms such as ‘not that much more restrictive’ could be open to significantly differing degrees of interpretation.

Without much more detailed guidance how many persons subject to DoLS may have their restrictions significantly increased without the consent or knowledge of the supervisory body responsible for them. Again it is important to state that this is not intended to be a criticism of staff providing care in these settings who are having to adapt to a completely unique set of circumstances, but rather a comment that asking said professionals to do so without providing a clear set of criteria of what constitutes ‘much more restrictive’ practices is an invitation to inconsistency of service delivery. One of the defining points of the DoLS process is that oversight on the degree and nature of restrictions should be held by the local authority responsible for placing the individual to ensure best practice. Instead we find ourselves in a situation where those responsible for administering deprivations are now required, to an extent, to define their limits. This does not seem to be in keeping with the idea that the processes of the MCA should remain untouched during this crisis.

Looking forward

As the vulnerable people who POhWER support in our services who are subject to DoLS are likely to remain under increased restrictions for longer than society at large we have a responsibility to try and raise examples of inconsistent practice when and if we encounter them, not to criticize our fellow professionals who are trying to adapt to an ever changing situation, but to provide that independent set of eyes to help improve practice and ensure that the principles of the MCA remain upheld in the new world we find ourselves in.