Neil AllenLPS

DOLS Firefighting amidst COVID-19

Screenshot 2020-03-21 at 19.56.43

Probably just an oversight, but the Coronavirus Act 2020 made no mention of the emergency measures required to ensure those detained under the Mental Capacity Act 2005 are adequately safeguarded. Basic human rights are most threatened at times of national responses to public health emergencies. A State’s first and foremost obligation is of course to protect the life of its citizens. Without a vaccine, none of us is yet immune and we owe responsibilities to each other to first do no harm. Financial and human resources are rightly being fully deployed to shield us from this invisible pandemic enemy. But the principles of necessity and proportionality are key and extra vigilance is required to ensure that the most basic of human rights of the most vulnerable are not sacrificed during the emergency.

The Coronavirus Act 2020 is a vital piece of legislation and wide-ranging in its scope. But it is entirely silent on the hundreds of thousands of vulnerable people whose care arrangements already deprive them of liberty. Whilst controversial changes to the Care Act 2014 are being proposed, and lesser safeguards to the Mental Health Act 1983 are being suggested, no mention is made of those responsible for safeguarding the rights of cared-for people who are subject to the continuous supervision and control of others and are not free to leave their placement.

According to the latest figures, on 31 March 2019 there were 131,250 people detained in English hospitals and care homes without any of the human rights safeguards to which they are entitled. And there will be at least a similar if not greater number who are currently subject to safeguards but will be requiring further assessments to determine whether their care arrangements remain lawful. Those able to make decisions are of course free to discharge themselves from hospital wards or care homes and return home to keep safe. But those deemed by others to be unable to decide risk being confined, unable to leave, potentially high risk places.

As the virus spreads, difficult calls need to be made as to whether, for example, it is in a person’s best interests to remain in hospital with the increased risk of contracting the virus, or to be discharged to a care home or back to their own home with whatever care package can practically be put in place. Our amazing health and social care professionals responsible for safeguarding the human rights of this significant proportion of the population were already overstretched. COVID-19 firefighting is likely to mean there will be less health and social care DOLS assessors available as they are reassigned to prioritise the preservation of life. The following considerations will therefore be more important than ever before:

  1. Any additional restrictive measures taken by care providers to prevent the spread of the virus to those deprived of liberty under the Mental Capacity Act 2005 must be necessary, proportionate, respectful of human dignity, and last for no longer than is necessary.
  2. Those responsible for making and commissioning care arrangements should reassess whether the person’s continued detention is necessary or whether a discharge to community care is possible. This is particularly important for those deprived of liberty in hospital where the risk of contracting the virus is likely to rise as infected patients get admitted.
  3. To compensate for additional restrictions on contact, care homes and other care providers should where practicable promote contact with those interested in the person’s welfare through alternative means.

As the Coronavirus Bill 2020 goes through Parliament in the coming days, the following legislative and non-legislative steps may well assist to bridge what otherwise risks being a (further) human rights gap in the DOLS scheme:

1. Because there will be less assessors:

  1. The length of urgent authorisations may need to be extended by statutory amendment.
  2. Those in respect of whom hospital or care home managers have already submitted a request for safeguards (Form 1) should be entitled to non-means tested legal aid to enable them to challenge their detention.
  3. Supervisory bodies are already able to use where appropriate equivalent mental health, eligibility, and mental capacity assessments and greater use of these will reduce the demand for assessors, particularly doctors. Best interests assessor can already be asked to carry out the mental capacity assessment.
  4. Best interests assessors may wish to consider greater periods of authorisation to ensure there are less gaps in the safeguards resulting from less assessors being available.
  5. A greater use of independent assessors may be needed to free up frontline staff to fulfil other statutory functions and duties.

2. Because of social distancing measures:
  1. Care homes in particular (and other settings outside DOLS such as 24-hour supported living arrangements), must take all practicable steps to facilitate and promote alternative forms of contact between the person and those interested in their welfare. Telephone, voice-over- and face-to-face online communication must be used to enable contact between the person, family members and friends, DOLS assessors, the relevant person’s representative, legal representatives, and Court of Protection judges.
  2. Care providers will need to consider what additional arrangements are necessary in order to preserve and promote the mental well-being of the cared-for person.

February 2022
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