It’s 10th March and it feels like the calm before the storm (albeit, there are also storms). This is a graph shared by Max Roser, of Our World in Data, of Italy’s infection rate with the new Coronavirus, Covid-19:
The new #COVID2019 data for Italy by the WHO is out.
• The number of total confirmed cases has *doubled in the last 3 days*.
(from 4.6k to 9.2k)
— Max Roser (@MaxCRoser) March 10, 2020
Until late February Italy had fewer cases than the UK currently has, and now the number has reached over nine thousand, intensive care units are in meltdown and the country is in lock down. Meanwhile, the UK government’s advice is basically just ‘wash your hands’. Which we are all doing, to a variety of tunes (and I’ve had to start using foot cream on my hands as hand cream no longer cuts it).
A few days ago, I tweeted about some of the ways in which I thought Coronavirus might impact on the Mental Capacity Act 2005 (MCA), and someone asked me to blog about this. Since it’s quite hard to think about much else right now, here goes. I should also say the 39 Essex Chambers are on the case with a forthcoming guide to Covid-19 and the MCA, and when it is published I will post a link here. No doubt it will be extremely useful to those on the front-line.
A (very) brief guide to the Mental Capacity Act 2005
For those new to the Mental Capacity Act 2005 (MCA), brought to this webpage via the coronavirus, these are the basics (the Social Care Institute for Excellence has a good and more detailed webpage on the Act):
- The MCA is a law that applies in England and Wales, and it governs when and how decisions can be made on behalf of people who are considered to lack the ‘mental capacity’ to make decisions for themselves.
- The MCA applies to a very wide range of decisions, from property and affairs, to health and welfare matters. I’ll be focussing on the latter in this post.
- The basic rule of the MCA is this: if a person is assessed to lack the ‘mental capacity’ to make decisions for themselves, then others can make that decision in their best interests.
- However, a person must not be ‘presumed’ to lack capacity just because of an illness or condition they have (such as dementia or a learning disability), it must be assessed as to whether they can understand, retain, use and weigh the relevant information to a specific decision, and communicate that decision. Furthermore, all practicable steps should be taken to support the person to make the decision.
- When a ‘best interests’ decision is made, the person’s wishes, feelings, values and beliefs must be considered, they should be encouraged to participate in the decision, and others interested in their welfare or caring for the person should be consulted. Decision makers should consider less restrictive courses of action when making best interests decisions.
- The MCA also contains a framework for authorising detention in hospitals or care homes – the deprivation of liberty safeguards (DoLS) – but that detention must be on grounds of the best interests and risk to the person not to others.
- The MCA also established the Court of Protection, which can decide difficulty cases, adjudicate on disputes and also authorise detention.
- When people have been assessed as lacking capacity and certain decisions need to be made about their health or welfare in their ‘best interests’, then sometimes a referral must (or may) be made to an Independent Mental Capacity Advocate (IMCA) whose role is to help gather information about their wishes and feelings and how they can participate in decision making, or (in some cases) to support them in exercising rights of challenge.
As a quick aside, if you are new to the MCA, there is a lot of debate about whether it gives sufficient respect to the ‘wishes and feelings’ of the person, supported decision making, and the role for families, which I won’t get into here. My focus in this blog post is mainly on the potential impacts of the coronavirus to the MCA’s institutions and services, not wider debates about the Act.
The coronavirus and the Mental Capacity Act 2005
It is estimated that there are around two million people in England and Wales for whom some everyday decisions may need to be made under the MCA. This figure is based on simply adding together cohorts who are considered to be at risk of ‘lacking capacity’ because of a long-term cognitive disability. The largest cohort within these estimates is people living with dementia, but people with learning disabilities, neurological diseases and brain injuries are also a substantial cohort. Because the main operations of the MCA are ‘informal’ we don’t have robust statistics on its everyday use, but we do have statistics on some of its more ‘formal’ mechanisms, including the DoLS, this framework for detention. And what we know from that is that there is a very strong skew towards older adults.
But the MCA is not only for longer-term conditions, it can also apply to people who are simply extremely ill, and who cannot make decisions because they are – for example – unconscious or delirious with fever. Quite a few of the cases that end up in the Court of Protection are about people who are extremely ill in ICU, where there is no consensus between professionals and families over what treatments they should (or should not) be given.
Serious medical treatment cases
Unless the UK is extremely lucky and manages to avoid a situation like Italy’s, we are likely to see, in the next few weeks or months, a dramatic increase in the number of people who are extremely ill and in need of hospital admissions and potentially in ICU. In legal terms, the critical question is whether the person can give informed consent to that admission and these treatments, and if they can’t – then the legal basis for any treatment will (most probably) be the MCA. There is a significant probability that many people who are critically ill with coronavirus will not be in a position to make key decisions about critical matters like whether to accept treatment, or even to decide not to continue with treatments. This means that those responsible for their care and welfare must follow the principles of the Act and assess their mental capacity and make best interests decisions for them. This will, in turn, require that they engage with the person (as far as is possible) and those close to them, about their likely wishes and feelings – because ‘best interests’ under the MCA is not simply about medical best interests, it has strong social and emotional dimension and is increasingly anchored in what the person themselves would have wanted.
The trouble is, this process takes time and professional resources; something that will be in increasingly short supply as ICUs fill up. It also involves engaging with relatives whose visits may well be restricted to prevent the risk of spreading coronavirus. I suspect intensivists will be relieved by decisions made in the Court of Appeal that people in ICU are extremely unlikely to be regarded as deprived of their liberty (a case called Ferreira), because if the formal DoLS procedures were invoked this would be even more time consuming. I think there is a very real risk that proper capacity assessment and best interests consultations with the person and those close to them may be a further casualty of COVID-19 as professional resources are stretched thin.
For people who lack capacity to make a serious medical decision, with nobody appropriate to consult about their wishes and feelings, the MCA requires (as in, this isn’t optional or a nice add-on) that a referral to an IMCA is made. So this will also increase pressure on IMCA services. And how will IMCAs manage the risks to themselves of complying with their duty to meet with P (‘to the extent that it is practicable and appropriate to do so’) where P poses an infection risk? Similar challenges arise for those assessing capacity and making best interests decisions for DoLS purposes. If I were an IMCA service provider or DoLS lead I would be taking advice on managing my duties to the person and my personnel (both health advice and legal advice), and consulting with the local authority about how to manage this risk, and also about how to prioritise cases if there is indeed a steep increase. If there isn’t a steep increase, and we know that there are much greater numbers of people in (or needing) ICU, I would also be worrying that referrals aren’t happening where they should be.
If cases do increase and pressure on beds increases, there will be extremely difficult decisions to make about who gets which increasingly strained medical resources. This is already said to be happening in Italy. I am sure to some extent this happens already in ICU, but this may be on a wholly unprecedented national scale. It is important to be clear that resource management questions come prior to the MCA – this is about what treatments are being offered, and the MCA is simply about whether the person should be treated as consenting or not. The MCA is not a tool to manage limited resources via slippery best interests decisions. It will be important to be vigilant about any age- or disability-related discriminatory assumptions about quality of life and recovery in these decisions, both from an Equality Act 2010 perspective and under the MCA itself (see s4(1)(b)). We already know that people with learning disabilities, in particular, experience very serious and life shortening health inequalities, and the MCA is sometimes implicated in that. I strongly suspect the same is true for people living with dementia.
There may also be risks of a growing number of disputes with the patients’ loved ones over what treatment people get – which again may engage the MCA. Sometimes this may be treatment refusal issues, but where this is about families or patients actively wanting a treatment and being refused, it will be particularly important to be clear over whether the reason treatments are not on offer is because they are clinically inappropriate, they are being rationed on public interest grounds, or medical professionals specifically consider them not to be in the (MCA) ‘best interests’ of that patient. If it is the latter, and the dispute cannot be resolved by other means, then it will quite likely be necessary to apply to the Court of Protection to manage the dispute. It is extremely difficult to predict the scale of this, but it is certainly possible that we may see a Covid-19 related spike in Court of Protection applications for disputes over serious medical treatments.
How do families and services manage the risk of infection to at-risk groups?
We know that the populations who are already disproportionately likely to fall within the MCA’s penumbra – older adults living with dementia in particular – are particularly at risk of more acute versions of COVID-19. This raises the question of how they or those caring for them manage the risks of infection. I have been really struck within the circle of my own family, friends and colleagues by a stark divide between the attitudes of the ‘it’s only as bad as flu’ brigade who are in pretty robust good health, and those who live on a daily basis with health conditions. For those with serious health conditions, the current news cycle is – as Frances Ryan recently commented on Twitter – a nightmare. The main focus of the current public advice seems to be on the 80% who are not at particular risk, but there is startlingly little specific advice around for those who are at heightened risk of pneumonia and the more critical complications. If you go to the NHS’s main advice page (as of March 10th anyway), there is no specific advice on avoiding infection if you fall within a high risk group – other than to phone NHS 111.
This raises the question of how anyone in an at risk category makes everyday decisions about, for example, whether to use public transport, to socialise, to go to public places, and so on. This is bad enough when deciding for yourself, let alone those whose decision making ability is called into question. Over the next few weeks and months, as the risk of infection becomes more real than hypothetical, those providing care and support for people with dementia, learning disabilities, brain injuries etc, will no doubt be debating whether they should be ‘allowing’ people to participate in activities with a potentially increased risk of infection. Without sensible advice from the NHS and the government, the risk is of both over-cautious and under-cautious decisions. This has very serious human rights implications. The measures that could potentially be employed to restrict access to activities with higher (perceived or actual) risk of infection are likely to engage article 8 – the right to private life – and may well amount to a deprivation of liberty, requiring formal authorisation under the MCA.
Relatedly, this may create a spike in DoLS applications to authorise detentions in care homes and hospitals, and Court of Protection applications for detentions elsewhere. More practically, without proper advice on how seriously the risks to these populations should be taken, it will be hard for those involved in implementing the DoLS to make sound assessments as to risk and best interests. Family carers will perhaps have even fewer resources to make these difficult decisions.
The new coronavirus regulations
Another category of risks are those presented by a person who is infected, and poses a risk to others. [updated 11/3/2020] The new Coronavirus regulations do include powers of detention ‘for the purposes of screening, assessment and the imposition of any restrictions or requirements under regulation 5’ where ‘ the Secretary of State or a registered public health consultant has reasonable grounds to believe that P is, or may be, infected or contaminated with Coronavirus’ and ‘the Secretary of State or a registered public health consultant considers that there is a risk that P might infect or contaminate others.’ Restrictions under ‘regulation 5’ include measures that ‘a registered public health consultant considers necessary for the purposes of removing or reducing the risk’. Under the regulations, those who ‘without reasonable excuse’ fail to comply with a restriction have committed an offence (s15).
Where a person is detained under this power, ‘the Secretary of State must have due regard to P’s well-being’. The detention must be reviewed after 14 days by the Secretary of State. The route of appeal is to a magistrate’s court. Interestingly, I cannot see anything that looks like a power to treat without consent under these provisions (although there are powers to require screening tests, which would amount to ‘treatment’ under the MCA’s broad definition). However, there do not seem to be any treatments for Covid-19 itself, other than those for people in critical conditions to maintain respiratory functions etc, so this may be a moot point.
So there are powers that could potentially be used within care settings to impose restrictions on those who are infected and pose a risk to others. They require the involvement of a registered health care professional, however it is not entirely clear to me how this empowers care providers themselves to enforce restrictions. The approach is more that members of the public are instructed to comply with restrictions or face a criminal penalty, which seems unhelpful in this particular context. It seems likely to me that being unable to understand the restrictions would serve as a ‘reasonable excuse’ for not complying with them, but that does not quite answer the question of by what power third parties impose and enforce restrictions.
Where restrictions are imposed on a child, ‘ a person who is a responsible adult in relation to the child must secure that the child complies with the restriction or requirement, insofar as that person is reasonably able to do so’ (s5(4)). There is no equivalent duty under the Coronavirus regulations on those caring for adults who may have difficulty understanding or complying with the restrictions. However arguably their duty of care to protect others from risks would create a civil duty to do more than simply stand by. But this is not an authority to detain. To draw an analogy, just because I have been ordered to remain in my home, does not empower my neighbour to ensure that I do. Answers on a postcard from you public law health lawyers please! [update ends]
Professionals, family carers, and care services
One of the wider risks of Covid-19 is that health and social care professionals and care workers will be infected and unable to work. A related risk is that they may continue to work, unaware that they are infected, and spread the virus (if you have ever worked in care – imagine what havoc even a Norovirus outbreak can bring…). So all these risks that I have outlined may need to be managed with a depleted workforce. This would be bad at the best of times, but we know that local authority social services and the NHS are already struggling to comply with their legal duties under the MCA, particularly DoLS (or perhaps we only notice DoLS, because we actually keep statistical tabs on it).
There are also heightened risks of existing care arrangements breaking down, where carers become ill, or people needing care become more ill themselves, meaning there will be greater strain on local authority social services teams in general. Meanwhile, as pressure on beds in hospitals increase, hospital discharge teams will no doubt be under increased pressure to discharge. And yet, the care sector itself may struggle to receive the discharged patients, if local authority social services, care homes and home care teams are understaffed via the crisis. It really is not hard to imagine the MCA and DoLS procedures falling by the wayside in these circumstances.
All in all, it seems to me that Covid-19 raises numerous risks of strain on the institutions and professional resources of the MCA, and with that comes serious risks to some of the most fundamental rights of its affected populations. It would be great to hear how those armies of MCA and rights-literate ‘street level lawyers’ – the BIAs, the DoLS teams, the IMCAs, are all gearing up to protect these rights in the coming storm.