Deprivation of Liberty Safeguards and the Coronavirus Act 2020

The Coronavirus Act 2020 gives the Secretary of State power to disapply or modify Care Act duties. Section 15 (local authority care and support) and Part 1 of Schedule 12 (powers and duties of local authorities in England) came into force at 3.30 pm on 31 March 2020.

Part 1 of Schedule 12 s4 amends s18 of the Care Act, so Local Authorities will have to meet an adults needs for care and support if “the authority considers that it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights” This does not change the need to comply with the MCA or the DoLS regime.

Why was the DoLS regime not included in the Act?

The DoLS regime is not included in the Act as it directly links to Article 5 of the Human Rights Act, the Right to Liberty.

Article 5 states “No one shall be deprived of his liberty save in accordance with a procedure prescribed by law”. The DoLS regime is the procedure prescribed by law, which allows a person to be deprived of their liberty. Any alteration to the DoLS regime could be seen as an interference with Article 5.

Therefore, local authorities must continue to apply the DoLS regime to avoid a breach in convention rights, which they still have the duty to uphold, even after the commencement of the Coronavirus Act 2020.

When asked about the inclusion of DoLS within the Act, Health Minister Lord Bethell said: “We recognise that we have to strike a careful balance between the need to protect some of the most vulnerable in our society with preventing the spread of the virus. Therefore, we have decided not to alter deprivation of liberty safeguards in primary legislation. However, we think that we can achieve significant improvement to the process through emergency guidance.  That will include making clearer when a deprivation of liberty safeguards authorisation is necessary, and the basis on which an assessment can be made, including, for example, phone or video calling for assessment.”

Capacity assessments via video?

The Guidance from the Court of Protection (COP) is that capacity assessments via video can be undertaken but “whether such evidence is sufficient will then be determined on a case by case basis.” Mr Justice Hayden reminds us that the arrangements made should be by those who are most likely to assist the person under assessment in achieving capacity. The assessee also needs to be adequately supported, maybe by a “trusted person” who can be present during the assessment.

Any Guidance?

There are a few guidance documents already published by the Department of Health and Social Care (DHSC).

• Responding to COVID-19: the ethical framework for adult social care
• COVID-19 Hospital Discharge Service Requirements

Guidance from the DHCS regarding the DoLS regime is expected imminently, and we will update you when this is ready.

Further information

If you are concerned about your or a family member’s deprivation of liberty or detention under the MCA, please contact Rebekah Sambrooks.

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