Government guidance on COVID 19 testing circumvents human rights for people who lack mental capacity

This week we are raising questions related to the confusing guidance issued by the government on testing people who lack mental capacity this past week.  The new government guidance circumvents human rights protections on invasive procedures and how they are performed set out in the Mental Capacity Act.


POhWER’s senior human rights advocate Dan Anderson has issued guidance this week reviewing the key points, issues and impacts of the COVID 19 testing government guidance which is at odds with human rights protections which have been eased and circumvented.


In theory, a test such as a COVID 19 swab test procedure could be considered an invasive procedure requiring consent. Implied consent is questionable and subjective when working with people who lack mental capacity. This decision typically requires a clinician referral to a specialist advocate known as an Independent Mental Capacity Advocate who was qualified to make representation on behalf of the client to inform the ‘best interest decision’ considering their mental capacity and vulnerable status. The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA). IMCAs are a legal safeguard for people who lack the capacity to make specific important decisions: including making decisions about where they live and about serious medical treatment options. IMCAs are mainly instructed to represent people where there is no one independent of services, such as a family member or friend, who is able to represent the person.


The new government guidance sets out an alternative process which leaves many untrained professionals working in institutionalised environments such as Mental Health institutions, Care Homes, Prisons in a difficult position as to how to interpret each person’s mental capacity without the support of an IMCA who cannot provide consent  or make a best interest decision without the instruction of a GP, or Health /Social Care Clinician. This raises significant human rights issues as vulnerable people lacking mental capacity could be confused or alarmed by a COVID 19 test and end up being physically restrained against their wishes  by a care worker. We recognise COVID testing is not foreseen to be a one-off event as vulnerable people living in an institution will need to be tested regularly.


People who are living with mental health and disability entered this pandemic living in a marginalised part of our society. The government has been overly focused on the prevention of virus transmission and left human rights low on the priority list. We are uncomfortable with this guidance and are asking the government to reconsider this easement which is there to protect the human rights of those lacking mental capacity.


These COVID testing decisions need to be included within considerations of an individual care plans, should be made by qualified and trained professionals. We are actively reaching out to our colleagues across social care to offer our assistance to help navigate the confusing guidance.

POhWER Virtual Event 6th July 2020

We recognise the issues raised here will impact social care professionals, clinicians, advocates and families. POhWER hosted a call in July to share knowledge and perspectives.


Dan Anderson, Regional Manager and Lyz Hawkes, Deputy Chief Executive from POhWER co-hosted a virtual Q&A session on 6th July “Your COVID 19 testing rights and mental capacity”.