Court of Protection and coronavirus: how we can work together to support our clients
This update has been prepared as a summary of some of the key pieces of guidance and changes to legislation as at 16 June 2020 that will affect community care and welfare Court of Protection (COP) practice. The most recent updates to this blog address the government’s additional guidance for caring for people who lack capacity during the pandemic. Further regulations, updates and proposals are being published all the time so please keep checking back on our website for updates.
Official court guidance
The latest official guidance from the vice president of the Court of Protection, Mr Justice Hayden, can be found here. In summary:
- Judges and practitioners should only be visiting P in person where it is absolutely essential.
- No hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing
- The default position is that all hearings will be heard remotely
- The courts will try to be flexible about the practical arrangements for hearings and can deal with hearings:
- By way of an email exchange between the court and the parties;
- By way of telephone using conference calling facilities;
- By way of the court’s video-link system, if available;
- The use of the Skype for Business App installed on judicial laptops;
- Any other appropriate means of remote communication, for example BT MeetMe, Zoom or FaceTime.
- Applications can still be made in the usual way and the courts are working to put in place systems to make sure genuinely urgent cases are dealt with
- Electronic signatures will be accepted where possible
Mr Justice Hayden rightly identified that the COP is one of the few courts that will have genuinely urgent cases that need to be heard, but in our experience, all judges are being very pragmatic and helpful. If a case is urgent, it will be possible to find a way to deal with it. Simpler directions hearing and all hearings listed for less than two hours will likely proceed by telephone if an order can’t be agreed. More complicated hearings, especially those where live evidence is going to be heard, will probably need to be by video link.
COP has already heard one very complicated hearing by video link, so we know it’s possible, but there have been conflicting reports about how successful it was. There is a blog from Serjeants Inn chambers about their first video link here hearing, which is quite positive.
However it’s also important to bear in mind the impact on family members and this blog is an important read on that topic.
Finally, and most importantly, it is currently unclear how P can be supported to engage with remote hearings. Do you have any experience with this? Please let us know, or use #InvolvingPinCOP to share your experiences on Twitter, if you want to join in COPPA’s conversation on this point. Why not follow us on @CWCOP, which we will shortly be updating to keep you as informed as possible.
Coronavirus Act 2020 and non-statutory guidance
The Coronavirus Bill was passed on Wednesday 25 March. This piece of emergency legislation covers all sorts of issues around the government’s plans to help tackle the pandemic. It also makes significant amendments to the Care Act and Social Services and Wellbeing Act, as well as to the rules about continuing healthcare (CHC) funding and discharge from hospital. Expect to see a lot more information about this in the next few weeks, as it starts to pan out in practice.
A few key points to note:
- Amendments to the Care Act: Schedule 12 suspends English local authorities’ duties to assess and meet eligible needs of adults and carers. Instead of having a duty to assess and meet needs, English local authorities (LA) have the power to do so. The only exception is where a failure to assess or meet needs would result in a breach of the adult’s rights as protected by the European Convention on Human Rights (ECHR). This is a very high bar; existing case law is clear that a failure to assess or meet needs will only result in a breach of ECHR rights in limited circumstances. Therefore, it will be up to the LA to decide whether to assess and meet needs. These amendments came into force on 31 March 2020.
- Amendments to the Social Services and Wellbeing Act: Schedule 12 also suspends Welsh LA’s duties to assess and meet needs. Again, this becomes a power to assess and meet needs. Welsh LAs only have a duty to assess or meet needs where a failure to do so would put the person at risk of abuse or neglect. Again, this is a very high bar and it remains to be seen how “abuse” or “neglect” will be defined. If they follow case law on neglect in other jurisdictions this could be very high bar indeed. These amendments came into force on 1 April 2020.
- All LA’s have been given guidance from the Department of Health and Social Care as to what needs and services they should prioritise. It urges local authorities “to do everything they can to continue meeting their existing duties prior to the Coronavirus Act provisions coming into force” but goes on to provide guidance for “streamlining services” where that is not possible. It is an interesting read and, in our view, well worth looking at but it will be more important to see how it plays out in practice as this is guidance only. Please do try and encourage the social workers you work with to continue to meet and assess needs in the usual way as much as you can.
- These powers are to be reviewed every six months. They operate retrospectively as well as prospectively, so will have an impact on all clients where LAs are currently responsible for meeting or assessing needs, not just where new needs have arisen. We can only hope that LAs will continue to exercise their powers to assess and meet needs.
- As at 16 June 2020, very few local authorities have adopted these easements. The majority of local authorities are operating as normal, and there are no changes to their duties under the Care Act / Social Services and Wellbeing Act.
- The clinical commissioning group’s (CCG) duties to assess eligibility for CHC have been suspended until “after the crisis”.
- Amendments to the Mental Health Act 1983: an AMHP can decide to detain someone under the Mental Health Act on the advice of only one section 12 doctor. No need for a second opinion.
- COVID-19 Hospital Discharge Service Requirements (this is not part of the Coronavirus Bill but important): all hospitals should discharge all patients as soon as they are clinically safe to do so. Transfer from the ward to a designated discharge area should take place within one hour of the decision being made. Full discharge from hospital should take place within two hours of that. That would mean discharge within three hours.
- There are no official changes to the Deprivation of Liberty Safeguards (DOLS) and the Mental Capacity Act (MCA) still applies in full. This means that regardless of whatever else is going on, there is still a duty to assess capacity and follow the current process in terms of best interests decision making. This will be particularly relevant in terms of hospital discharges. Where there is reason to believe someone lacks capacity to make decisions about their discharge, their capacity should be assessed and the correct process (as set out in s 4 MCA 2005) followed. The Hospital Discharge Guidance referred to above acknowledges that if the proposed discharge arrangements “amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care home arrangements and order from the Court of Protection for community arrangements still apply but should not delay discharge.” This is, in our respectful view, completely unrealistic: following the correct process will inevitably delay some discharges and make it impossible to comply with the three hour timeframe. A DOLS authorisation should, in an ideal world, be sought before someone moves to a care home, and an application to the court to authorise a community DOL must be made before the move can take place. Evidently that will not happen within three hours of someone being declared medically fit for discharge.
- The government has recognised that some people may need to leave home more than once a day for health reasons, including people with LD and autism who are used to a routine for more regular exercise (see paragraph 15). This should ideally be in accordance with medical advice or a care plan.
The court has already considered this new legislation in one case, where it looked at whether discharging a woman with significant mental health concerns from hospital (where she had been treated for over a year) to the community with a package of care she said was not sufficient, would breach her Article 3 or 8 ECHR rights. The court determined that it would not breach her rights and appeared to indicate that LAs have broad powers to refuse care during times of scarcity and that Article 3 would rarely be engaged by a failure to provide community care. Commentators have already expressed misgivings about this decision, however, and this helpful article urges LAs to approach the court’s comments with caution and continue to meet their Care Act duties wherever possible.
DOLS and new s21A applications
As we have noted above, there are no formal changes to the MCA 2005 or DOLS, government has now issued guidance on the application of DOLS and the MCA during the coronavirus pandemic.
- All decisions taken during the pandemic for people who lack capacity must continue to be taken specifically for each individual person. People providing care for people who lack capacity cannot start adopting a group approach to decision making. We think this is an important point – the duty to take a person-centred approach continues to apply, even in the midst of this pandemic.
- LAs need to take a proportionate approach to all DOLS applications, including those made before and during the pandemic. DOLS assessors should not visit care homes unless a face-to-face visit is essential, and remote techniques should be used wherever possible.
- The government recognises that this will put additional pressures on the DOLS system but “as long as providers can demonstrate that they are providing good quality care and/ (sic) treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights.”
- It may be necessary to change usual care and treatment arrangements during the pandemic but in most cases this will not amount to a new DoL, so a new DOLS authorisation or review by the COP will not be needed.
- For many people who were not DoL before we entered lock down, temporary changes to their care during lock down will not amount to a DoL. The government stresses that in order to meet the “acid test” for deprivation of liberty, being “not free to leave” means not free to leave that accommodation permanently.
- For those who were already subject to a DOLS authorisation or court order authorising their placement, the existing authorisation will cover temporary changes to the care plan.
- That being said the golden rule remains the same: if the proposed new arrangements are more restrictive than those covered by the existing authorisation, then a review (either a DOLS review or review by the court) should be carried out.
- There is a flow chart at Annex A explaining this part of the guidance
- Where someone is receiving lifesaving treatment, including treatment for coronavirus, then the person will not be deprived of their liberty provided the treatment is the same as would be given to someone who does not have a mental disorder. This applies in care homes as well as hospitals.
- There is a shortened form for urgent DOLS authorisations – see Annex B – that can be used only during the pandemic. As before, an urgent authorisation can be granted for an initial 7 days and then extended for another 7 days if necessary.
Alex Ruck Keene has published a very helpful video guide to the new DOLS and MCA guidance which is well worth a view.
The guidance is largely as we expected it to be. The government seems to be trying to tread a fine line between upholding the MCA and ensuring deprivations of liberty continue to be reviewed and authorised, but not overloading the system during these already strained times. It is particularly hard to see how the guidance on whether existing DoL authorisations (whether DOLS or court order) can cover new arrangements will be applied in practice. For many people, especially those who are more active and in less restrictive care settings, their day to day arrangements during lock down are going to become more restrictive. But lock down has introduced new restrictions for all people, not just those who lack capacity, so we think it is important to take a proportionate approach. And, if new authorisations are going to be sought to sanction a greater level of restriction, it will be really important to make sure these are reviewed after lock down ends and increased restrictions are removed from care plans. Temporary measures in extraordinary times must remain just that: temporary.
As noted above, the government has also recognised that lock down restrictions may need to apply differently to people with additional needs (whether they have capacity or not). It’s important that we all continue to think about how restrictions can be eased, not just whether we need to authorise any new restrictions. The least restrictive principle continues to apply.
The guidance that face to face DOLS assessments should not take place unless essential is also to be expected and different local authorities have already started to prepare guidance and try to find practical work arounds. Organisations providing assessors for mental capacity assessments are already indicating that they have had varying degrees of success with remote assessments and are cautioning against support being given to P ‘off screen’ by someone who may be perceived as putting undue influence on them. We will need to look at this on a case by case basis.
Additional guidance has been published regarding the admission of people to care homes during the pandemic. This reiterates that duties and powers under the MCA 2005 still apply during the pandemic.
From our point of view, we think it is important that DOLS assessments continue to be carried out and it is of note that the government has formally suspended lots of LA’s duties, but not these ones. This is probably because suspending these duties would clearly result in a breach of people’s ECHR rights, namely their Article 5 rights not to be unlawfully detained. This is an absolute right and amending LA’s duties to carry out DOLS assessments and offering them instead a power to assess (similar to what they have done with duties around care needs) would not be compliant with our human rights legislation. However, on this, see the case of BP v Surrey County Council & Anor  referred to below.
For similar reasons, it is also important that people can continue to challenge their DOLS in the Court of Protection by way of s 21A applications. Applications are already issued with the court electronically and, whilst there will inevitably be a delay in how quickly new applications can be issued and listed for hearing, we see no good reason to delay making the applications themselves. A pragmatic approach will likely need to be adopted once they are issued. However, it will be very difficult for updating assessments to be carried out and, crucially, P needs the chance to be involved in their case, which will be incredibly hard whilst we are in lock down. In many situations, proceedings will have to be stayed until the crisis lessens, but at least the application will be made and able to be progressed as soon as possible when we all return to business as usual.
Our view is that it will be important to resist any attempts to deal with applications on the paper entirely. This may be necessary in some very limited circumstances (further thoughts on this below), but for the majority of s21A applications it will not be appropriate to determine the application without visits to P and updating assessments being carried out. There are often cases where it seems inevitable that someone will need to remain in the care home where they are. Either their home has been sold, or their needs are such that they could not be cared for at home, and there is a consensus amongst family members and professionals that the current placement is in their best interests. Our view is that even in cases like this, P needs to have access to a full and proper challenge and it would not be appropriate to conclude proceedings until they can take part in a meaningful way.
It is now less likely than ever that the Liberty Protection Safeguards scheme (LPS) will be in force in October 2020 as planned.
DOL in the community
Local authorities (and health boards / CCGs) remain responsible for authorising any DOL in the community. Community care packages are already an area where there is less regulation and less contact with the outside world, so it is important that applications are made where necessary. If you have any concerns, please do not hesitate to contact us.
39 Essex Street Chamber’s blog post on the Coronavirus Bill raises some interesting points on DOL in the community. 39 Essex Street has published several other equally helpful guides over the past few days that can be found on their website.
The government has also issued practical advice and guidance for people providing home care, including advice on PPE, protecting vulnerable people shielding, access to support. It’s important to make sure care providers are following the advice and keeping people at home as safe as possible.
Court timetables and P’s rights to participate
Timetables in existing cases are inevitably being disrupted. Our view is that a balance needs to be struck between progressing cases where we can, understanding the pressures on front line staff, and, very importantly, protecting P’s right to engage in their own cases. These issues are going to have to be balanced on a case by case basis.
There will be cases where there are urgent issues that need to be addressed in the short term, for example, if P cannot stay where they are or a care plan breaks down. In such situations, we may need to rely on older assessments or make decisions in less than ideal situations, such as after only a telephone consultation with P, instead of a face to face meeting. Transition plans in particular will be harder to adhere to as visits between placements are clearly not appropriate in light of current public health guidance. If the matter is truly urgent and cannot wait, it will be important to make sure papers are scrutinised as much as possible and safeguards and additional reviews are built into plans.
There will be others cases, however, where it will not be appropriate to proceed until such time as P can be visited, even where there is a consensus amongst the other parties / professionals about how best to proceed. It is important that we all continue to bear in mind P’s right to engage in their own cases. That may mean staying some cases until their litigation friend or RPR can visit them and go through the options with them, or until they can come to court or meet the judge.
We don’t doubt there will be many cases where we have been waiting for a s 49 report, updated assessment or report for a very long time, but it gets pushed back again because doctors and social workers rightly need to focus on more urgent matters. Our view is that we need to be really careful in these sorts of situations to take a genuinely pragmatic approach. Is that section 49 report really needed or is there another way around it? Or is it right to resist pressure to rely on an old assessment and insist that P has a proper review?
Contact with family members is going to be an enormous issue for many of our clients whilst we remain in lock down. The courts are already alive to this and in a recent case, BP v Surrey County Council & Anor , Vice President, Mr Justice Hayden, told a care home they needed to ensure a resident had “effective communication” with his relatives during lock down. Further information about this case and the court’s comments in this article.
The case has now been published.
In summary this case confirms:
- In the COVID-19 emergency, derogation from Art 5 is permitted for a limited period
- Restrictions on visitors to the care home were proportionate
- Capacity assessments can be undertaken remotely
- The care plan to stop visits (but for instance to use skype and visits to the window) was proportionate in the circumstances of the case and preserved P’s dignity
This is something I know lots of us are worried about in our existing cases so you can now use this case to highlight that creative alternative are to be encouraged. You are referred to paragraph 36 of the judgement for the Mr Justice Hayden’s comments on how the parties in this case came to agreement. Please do share any creative ideas you have – we are all ears!
As lockdown eases, there will hopefully be more scope for creative solutions to maintaining contact. Many care homes we know of have started to support garden and outdoor visits, in line with the updated public health advice.
The Welsh government issued an updating letter to care providers on 5 June 2020, encouraging providers to “make every effort” to support outdoor visits where safe to do so. The letter contains a long but very sensible list of safety precautions and conditions. English providers may want to consider the same factors when risk assessing outdoor visits.
Treatment of people with disabilities who fall ill with coronavirus
NICE guidelines were published towards the end of March that address how resources should be allocated in hospitals if they are overrun with COVID-19 patients and need to make difficult choices about whose care to prioritise. The guideline stated that all adults on admission to hospital, irrespective of COVID-19 status, should be assessed for frailty using the Clinical Frailty Scale (CFS) and that comorbidities and underlying health conditions should be considered. This raised very legitimate fears that all people with underlying health conditions or “comorbidities” including physical disabilities, mental health issues, learning disabilities or autism, even where well managed and the patient were otherwise healthy, could be disadvantaged.
In response to these concerns NICE has amended its guidance. CFS scores should not be used in certain groups, including people with learning disabilities, and clinicians need to consider all care options with the patient, their family or advocate. This is an important change and it will be important to ensure the updated guidelines are followed if any of your client are admitted to hospital with coronavirus.
We recommend that you encourage any of your clients who may have to go into hospital to have a copy of this, and their health passport on them.
Please also be aware of this joint statement from the BMA / Royal College of Physicians and others on advance care planning, especially for the elderly and frail.
Alex Ruck Keene has published another very helpful guide to DNACPRs and advance care planning that we highly recommend watching .
Caring for people who lack capacity
The government issued additional guidance in May and June 2020, to assist those caring for people who lack capacity during the pandemic.
The guidance covers:
- Best interests decisions around coronavirus testing and life-saving treatment;
- Reviewing DOLS authorisations and assessing whether a new DOLS application is required;
- Hospital discharge – please note that the guidance again reiterates that where someone lacks capacity to make decisions about their discharge, the proper best interests process needs to be followed and “no one should be discharged to somewhere assessed to be unsafe”. The guidance also notes, however, that options for discharge may be limited during the pandemic and when looking at care home options, the first safe and available is likely to be in P’s best interests.
We don’t necessarily agree with the latter point – careful consideration will need to be given to the infection risk inherent in remaining in hospital for longer than necessary, versus the risk of a rushed moved to a care home placement that might be safe, but totally unsuited to meeting P’s wider care and emotional needs, e.g. due to distance from loved ones, disparity between P’s care needs and abilities and other residents’, or the unsettling effect of potentially putting P through multiple care home moves if the immediately available option is not suitable longer term. As noted above, the MCA still applies in full and individual best interests decisions still need to be made, so advocates and those supporting P should push back if they do not agree that the first safe, available option is truly in P’s best interests.
- Finally, how emergency health powers will operate in respect of people who lack capacity. Emergency health powers allow health protection teams (HPTs) to force people who have symptoms to comply with public health advice about self-isolating (amongst other things). The guidance suggests that, for the most part, public health powers will not be the most appropriate framework for managing people who lack capacity and HPTs will need to consider whether all other avenues set out in the MCA and MHA have been explored, before using public health powers. Where public health powers are used, HPTs need to make sure the person in question has support, from either a family member or IMCA, and consideration will need to be given to their wishes and feelings.
We would be very concerned to see health protection powers being used in respect of someone who lacks capacity to make decisions about their care or understand the need to self-isolate, so it is helpful that the guidance recognises that health protection powers are unlikely to be the most appropriate way of managing any concerns. Please feel free to contact us if you have any concerns about these powers and any of the people you support.
Legal Aid Agency
Finally, the Legal Aid Agency has also relaxed its rules to make it easier for vulnerable clients to access legal advice. You will all probably be used to requests for funding applications and amendments to be signed, but happily there are ways around this where people do not have access to post, printers or scanners. The information from LAPG can be found here in case you are interested, but we are able to keep you updated on a case by case basis.
This is also relevant to new applications and will make it easier for all of us to continue to access legal aid funding for prospective clients to make applications to the court. The core message is that practical difficulties should not hinder access to justice.
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Jess specialises in health and welfare proceedings in the Court of Protection and Community Care matters.View profile >
Molly is a Solicitor in Clarke Willmott’s Cardiff Private Capital Team specialising in Health and Welfare matters in the Court of Protection.View profile >
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