key: cord-0861896-kw0y9fpp
authors: Barrister, Alex Ruck Keene
title: Capacity in the time of Coronavirus
date: 2020-04-11
journal: Int J Law Psychiatry
DOI: 10.1016/j.ijlp.2020.101560
sha: 49ac5602f212a0f603e4b66f3e9a487bb19b3a76
doc_id: 861896
cord_uid: kw0y9fpp

Abstract In the course of a few short weeks, many of the established legal frameworks relating to decision-making in England & Wales in respect of those with impaired decision-making capacity have been ripped up, or apparently rendered all but unusable. Although the Mental Capacity Act 2005 itself was not amended, the impact of other legislation (especially the Coronavirus Act 2020) means that duties towards those with impaired decision-making capacity have been radically changed. This article reflects the experience of a practising barrister in England & Wales grappling with the impact of COVID-19 upon the Mental Capacity Act 2005 across a range of fields in the weeks after the world appeared to change in mid-March 2020.

This paper is avowedly a report from the front line, rather than an abstract academic disquisition. It is, further, at best, a first draft of history. It reflects the experience of a practising barrister in England & Wales grappling with the impact of COVID-19 upon the Mental Capacity Act 2005 ('MCA 2005') across a range of fields in the weeks after the world appeared to change in mid-March 2020. 1 In the course of a few short weeks, many of the established legal frameworks relating to decision-making in England & Wales in respect of those with impaired decision-making capacity were ripped up, or apparently rendered all but unusable. Although the MCA 2005 itself was not amended, the impact of other legislation (especially the Coronavirus Act 2020) meant that duties towards those with impaired decision-making capacity were radically changed. Questions of isolation and social distancing raised stark questions about protectionand the ends of protectionwith particular difficulties in the context of those who could not understand what they were being asked or required to do. The intense pressure upon hospitals, and, in particular intensive care units, meant that best interests decisionmaking as the choice between available options suddenly took on a new and very stark character, and advance care planning startedin some casesto appear to be a threat rather than an opportunity. And the Court of Protection itself, the statutory court charged with oversight of the MCA 2005, had in a matter of weeks to transform itself into a virtual court, raising deep questions about the functions of justice and participation. This article discusses both England and Wales. Devolution means that there are similarities and differences between the two. 2 The MCA 2005 applies in England & Wales as the framework through which decisions are made (most often informally) about capacity and best interests, on the basis of a functional model of mental capacity. The MCA 2005 also provides an administrative route for deprivation of liberty for purposes of enabling care and treatment of adults in hospitals and care homes, the so-called Deprivation of Liberty Safeguards ('DoLS'). Outside hospitals/care homes, or in relation to those aged under 18, court authorisation will be required. Separately, and long-predating The MCA 2005 does not provide any mechanism to compel the delivery of health or social care to an individual. The Court of Protection has a duty to act in the best interests of the person before it, as do others (outside the court room arena) making best interests decision on their behalf. But the Court of Protection:

[…] only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options.' […] 37. Other service-providing powers and duties [outlined immediately below] also have their own principles and criteria, which do not depend upon what is best for the service user, although that will no doubt be a relevant consideration. Decisions can, of course, be challenged on the usual judicial review principles. Decisions on health or social care services may also engage the right to respect for private ( Challenges by way of judicial review are to a different court, the Administrative Court, for which it is more difficult (as a generalisation) to get public funding to pay for legal assistance, 5 and are more limited in scope, focusing on the process of decision-making much more than the outcome of the decision.

The National Health Service Act 2006 sets out the powers and duties of the National Health Service to provide healthcare; the Care Act 2014 (in England) and the Social Services and Well-Being (Wales) Act 2014 sets out the powers and duties of local authorities to provide social care to individuals. 6 If an individual's needs are such as to amount to a 'continuing healthcare' need, then it is the responsibility of the NHS to meet them, and to do so for free. Social care is means-tested, such that a charge can be made for the provision of such care by local authorities. In very broad terms, in relation to both healthcare (outside hospital) and social care, the relevant public body is under a duty to assess the needs of the person, determine whether they are eligible needs, and then meet them.

Finally, the Public Health (Control of Diseases) Act 1984 contains an extensive range of powers (in Part 2A) in relation to public health protection, including, most materially, the power to the Secretary of State (in England) and the Welsh Ministers (in Wales) to make 'health protection regulations' "for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere)." 7 Section 2: Health and social care outside hospital If decisions are made under the MCA 2005 between the options that are actually available to the person, then changes made in relation to the powers and duties upon the state to secure the needs of individuals with impaired decision-making capacity will have a dramaticknock-oneffect upon the scope of those options. This is precisely what the Coronavirus Act 2020 ('CA 2020') has done, and I go into the changes it has introduced in some detail for two reasons:

(1) for the benefit of those within England & Wales who are grappling with (for whatever reasons) the new landscape;

(2) as a case study for those concerned more broadly with the UN Convention on the Rights of Persons with Disabilities ('CRPD'), to make the point that examining whether persons with disabilities are able to 'enjoy legal capacity on an equal basis with others in all aspects of life' 8 in any jurisdiction requires examination not just of the laws that on their face govern legal capacity, but also the wider framework within which those laws are placed.

The CA 2020 was introduced into Parliament on 19 March 2020, and received Royal Assent under a week later, on 26 March 2020. Its long title "An Act to make provision in connection with coronavirus; and for connected purposes" does not adequately convey its scope. Reflecting the impact of COVID-19 across all aspects of society, the Act includes provisions ranging from emergency registration of health professionals, to the power to require information relating to food supply, to powers relating to the temporary closure of educational institutions and childcare premises, to postponement of elections to the General Synod of the Church of England. For present purposes, I focus upon the duties upon public bodies to assess and meet the continuing healthcare and social care needs of individuals, the latter because of their profound, indirect, impact upon decision-making in relation to those within the scope of the MCA 2005.

Framework for Adult Social Care. 9 This document, in essence, transposed principles that had been developed in relation to triage for inpatient medical treatment in the context of pandemic flu 10 to the social care setting:

Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decisionmaking.

It was not just local authorities, but also the NHS, which would be stretched. I deal at section 6 below with decision-making in hospital. Here, I focus on the position outside hospital where, as noted above, the NHS (throughin England -Clinical Commissioning Groups) has both powers and duties to meet continuing healthcare needs. 11 The CA 2020, with immediate effect, suspended 12 the duty on the NHS in England to carry out assessments of whether a person is in need of continuing healthcare. Crucially, such continuing healthcare needs are free to access, unlike social care provision for which charges can be made. The Explanatory Notes to the Act rather coyly suggested this section "changes the procedure for discharge from an acute hospital setting for those with a social care need […] It allows NHS providers to delay undertaking the NHS Continuing Healthcare (NHS CHC) Assessment and pending that assessment, the patient will continue to receive NHS care." 13 The provisions of the CA 2020 in this respect were not, in fact, so limited. Although s.14 CA 2020 does not stop Clinical Commissioning Groups carrying out such assessments, the (temporary) repeal of the duty mean that, overnight, individuals with profound healthcare needs lose any entitlement to assessment of those needs as a precursor to the potential for those needs to be met, for free. Those of such individuals with impaired decision-making capacity therefore losein many casesthe potential for options to be made available for them in terms of their residence and care arrangements.

Further, given the abolition of the duty to assess, recourse to judicial review to challenge a failure to carry out an assessment becomes a nigh-on impossible task (and the Court of Protection can offer no assistance 14 ) . Given that there is a considerable overlap between individuals with impaired decisionmaking capacity and those with continuing healthcare needs, their options have been immediately and dramatically narrowed by this legislative change.

The CA 2020 also introduced what the Government (but not the Act) described as 'easements' 15 25 These are, respectively, (1) the local authority is satisfied on the basis of the financial assessment it carried out that the adult's financial resources are at or below the financial limit; (2) the local authority is satisfied on the basis of the financial assessment it carried out that the adult's financial resources are above the financial limit, but the adult nonetheless asks the authority to meet the adult's needs; and (3) the adult lacks capacity to arrange for the provision of care and support, but there is no person authorised to do so under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult's behalf.

satisfied it is not required to meet the adult's needs under section 18." The statutory guidance did not explain when and how such power was to be used. Section 20 of the Care Act 2014 is also (when 'eased') watered down 26 so that that the duty to meet a carer's need for support is to be tied to the necessity to avoid a breach of the carer's rights under the ECHR. I return to Deprivation of Liberty Safeguards at section 4 below.

It will be clear that the watering down of duties under the Care Act 2014 to a 'bare bones' approach, so as to avoid a breach of the ECHR, 28 means that in many cases the options available for individuals with impaired decision-making capacity are dramatically reduced.

That having been said, and as a possibleand very tentativesilver lining to the cloud, the sudden and very immediate focus upon the ECHR may mean a renewed focus by the English courts upon the positive aspects of rights under the ECHR, and what those aspects mean in the context of those who cannot make their own choices.

The ECHR has been 'domesticated' through the Human Rights Act 1998, such that individuals can rely upon the rights it contains before the courts, and public bodies are required to comply with it in the discharge of their functions, so, on one view, the changes introduced by the CA 2020 do nothing other than repeat a commitment which already exists. In the context of immigration control, the fiction (and it is frequently a fiction) is that the individual concerned could always return to the country from where they came from, so it is not surprising that the courts have interpreted the ECHR as providing a minimalist safety net designed to ensure that the UK does not breach its obligations to those individuals under the Convention. No such fiction could now operate across the piece. It seems to me, therefore, that (as perhaps presciently Aburas might be said to recognise 38 ), the context is very different because, in effect, the ECHR is being required to do the heavy-lifting across the piece.

Long experience before the courts means that I do not underestimate the difficulty in persuading either a local authority orin due coursea court that it should not follow the very high bar set by the cases discussed above, which include jurisprudence up to and including the Supreme Court.

That having been said, it seems to me that there are good arguments that courts should be more willing to place weight upon Article 8 ECHR alone as opposed to the general position that (absent where a family is involved 39 ) Article 8 does not add to Article 3 ECHR. Article 8 is a qualified righti.e. interference with it can be justified under the circumstances provided for under Article 8 (2) EWHC 2282 (Admin), in which the situation was found to have breached Article 8 ECHR even though it did not breach Article 3 ECHR, because the entire family were in such dire straits as a result of the local authority's actions. 40 Art. 8(2) applies. where the interference is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

J o u r n a l P r e -p r o o f bodies, and in due course, the courts to proceed by reference to Article 8 ECHR, then there is undoubtedly an argument that it should be asked to do more work to address the middle ground where the person's circumstances are not so dire as to cross the very high threshold of Article 3 ECHR, but positive steps are nonetheless required so as to secure their physical health 41 or, importantly, "psychological integrity." 42 I would also suggest the courts should be willing to have regard to the recent jurisprudence from Strasbourg relating to Article 5 whichoddlydoes not seem to have been considered domestically before the courts in England. 43 In other contexts, the courts have been willing to accept that the CRPD can be of assistance in interpreting the application of the ECHR. 51 If the statute itself now directs the courts to consider the provisions of the ECHR (and, by extension, the CRPD), then the approach in Davey may no longer seem quite so tenable. Put another way, if the statute itself asks the ECHR to do more work as the safety net for those with disabilities, it is legitimate to ask those applying the statute to look to the CRPD to assist in ensuring that safety net has as few holes in as possible.

Whether advocates andin due coursethe courts will be willing to run with arguments such as those set out above is, at the time of writing, an open question. But if they do, they may, ironically, have further blurred the distinction between the civil and political rights traditionally seen as the core of the ECHR and socio-economic rights (i.e. rights which actually require states to spend money). J o u r n a l P r e -p r o o f individual level, the rights to independent living and to health enshrined in the CRPD. 52 Such would be of inestimable benefit to those with impaired decision-making capacity.

The lives of those with impaired decision-making capacity have also directly, and, as will be seen, disproportionately, been affected by the public health measures taken to respond to the COVID-19 crisis.

In the same week as the CA 2020 came into force, regulations made under the Public Health (Control of Disease) Act 1984 radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 53 are set to expire in 6 months' from the date of their coming into force on 26 March 2020, 54 although with reviews by the Secretary of State every 21 days. 55 Whilst the regulations are in force however, there are statutory restrictions on every person in England from leaving the place where they are living "without reasonable excuse." 56 The regulations provided for statutory steps which could be taken to enforce this, including the power for a relevant person 57 to direct the person to return the place to where they were living or remove them to the place where they are living (including by the use of reasonable force). The person would also be also committing a criminal offence (which can be discharged by way of the issue of a fixed penalty notice). 58 What constituted a "reasonable excuse" for these purposes is set out in Regulation 6(2). This included taking exercise, as well as 'to avoid illness or injury or to escape a risk of harm.' 59

There are some very interesting questions that arose as to whether the Regulations were ultra vires the Act under which they were made (the Public Health (Control of Disease) Act 1984). I do not address them here, but David Anderson QC wrote a stimulating blogpost on the question. 60 Interesting questions also arise as to whether they gave rise to the deprivation of liberty of the entire population of England & Wales for purposes of Article 5(1) ECHR (and, if so, whether it is justified under Article 5(1)(e) for purposes of the "prevention of the spreading of infectious diseases"). These are both interesting questions, my tentative thoughts being, respectively (1) probably not; 61 but (2) For present purposes, I focus on the fact the Regulations did not make any provision in relation to those with impaired decision-making capacity. The question arises, therefore, as to how they should be applied to someone who lacks the capacity (applying the MCA 2005, or any common law test that might be said to apply) to understand: (1) that they are required not to leave the place where they are living without a (statutory) reasonable excuse); or (2) the consequences of so doing without such a reasonable excuse? And should they be subject to criminal sanction if they do so?

One would like to think that it would be very unlikely that any prosecution would be brought against a person who did notbecause they could notunderstand what it is that they should or should not have been doing. The guidance issued by the Crown Prosecution Service 63 in relation to prosecution of offences under the Regulations provided that:

The guidance made no reference to the presence of impaired decision-making capacity as a factor. It is also, equally, troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.

It may, perhaps, be that the answer is to be found in the wording of Regulation 6(2), which is not exclusive in terms of reasonable excuses. Rather, it provides that "a reasonable excuse includes." That a person lacks the capacity to understand what it is that the new regime requires would appear, on its face, to be a reasonable excuse. Whether any of the near constant stream of guidance coming out (but not, so far, relating to the MCA specifically) will address this issue is not known, but I would hope it would.

I should note that, under Regulation 8(4), it would undoubtedly be possible for a person to be returned to the place where they are living by the use of reasonable force whether or not they had the capacity to agree to the steps being taken. Interestingly, and undoubtedly by a side-wind, this suddenly given a previously missing power 64 to police offices, and other authorised people to return individuals subject to DoLS authorisations in care homes 65 where they have 'wandered' (a term I put in parenthesis because in many cases, it is very far from purposeless wandering on the part of a person with J o u r n a l P r e -p r o o f dementia). But this was undoubtedly not the purpose for which Regulation 8(4) was enacted. It would also leave anyone who does take steps to return an individual to somewhere other than a care home in a difficult position. The Regulations did not provide the power for the person returning the person to where they live to prevent them from leaving their home; any such power would have to (legally) be found in another source, and (practically) be exercised by someone. And what if the person lived in their own home, and did not appear to have anyone there to 'receive' them?

Finally, I note that those caring (formally or informally) for those with impaired decision-making capacity are left in a very invidious position. Should they be seeking to prevent the individual from leaving home so as not to breach the Regulations, or should they let them do so in the hopes that the individual does not then encounter an unsympathetic relevant individual. It is very likely that many carers will feel (rightly or wrongly) that they have to take steps to stop the person leaving. In many cases, this is likely then to mean that the individual then meets the 'acid test' of not being free to leave the place they live and also being subject to continuous supervision and control. 66 If they cannot consent to that confinement, then it is very likely that they are then to be seen as deprived of their liberty for purposes of Article 5 ECHR. 67 I return to this issue below having looked at the further powers that the CA 2020 introduced in the public health sphere.

Section 51 and Schedule 21 CA 2020 contain powers relating to potentially infectious persons. Part 1 relates to England; Part 2 to Scotland and Part 3 to Wales. They are materially identical, and for present purposes I will only give references to the paragraph numbers in Part 1 (for England).

Schedule 21 provides public health officers, constables and (in some circumstances) immigration officers with the means to enforce public health restrictions, including returning people to places that they have been required to stay. Where necessary and proportionate, constables and immigration officers are able to direct individuals to attend, remove them to, or keep them at suitable locations for screening and assessment. Where a person has been screened and assessed and either tested positive, or the screening is inconclusive, paragraph 14 of Schedule 21 enables a public health officer to impose requirements including to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period; and/or to remain at a specified place in isolation from others for a specified period. ('a requirement to remain'). The public health officer has when imposing a requirement or restriction to inform the person of the reason for doing so, and that it was an offence to fail to comply with the requirement or restriction. A person can only be required to remain at a place for a maximum of 28 days, 68 , although can be required to remain in isolation indefinitely (although with a review every 24 hours after 28 days). A failure to comply with the requirement to remain at a place or in isolation is a criminal offence. 69 J o u r n a l P r e -p r o o f removing someone to or keeping the person at a place under the powers identified here; 70 failure to comply with a reasonable instruction is a criminal offence. 71 A constable or immigration officer (but not a public health officer) can use reasonable force, if necessary, in the exercise of the powers outlined here. 72 The recourse against the exercise of the draconian (if justified) imposition of a requirement to remain is by way of appeal to the magistrates' court. 73

None of the provisions outlined above make any reference to the position of persons with impaired decision-making capacity. The closest that they come are in paragraph 14, where a public health officer is required in deciding whether to impose a requirement to remain "must have regard to a person's wellbeing and personal circumstances." "Personal circumstances" here couldand arguably shouldinclude whether they have capacity to understand what it is that they are being required to do, and the consequences if they do not.

In the event that a requirement to remain was imposed, it was not obvious from the face of the CA 2020 how it is that a person with impaired decision-making capacity is to make any appeal to the magistrates' court. So as to comply with the provisions of Articles 6 and 8 ECHR (read alone or in conjunction with Article 14 ECHR), it is clear 74 that the appeal provisions in paragraph 17 will have to be interpreted (1) as placing the threshold for bringing an application extremely low (as per the approach before the Mental Health Tribunal or the Court of Protection 75 ); and (2) where the person does not meet that threshold, enabling another person to act on their behalf to bring the application.

It was entirely possible that there are those who do have impaired decision-making capacity and pose a public health risk because they are either potentially or actually infectious with COVID-19.

Precisely what legal powers could be exercised to require them to remain either in a place or (within that place, within isolation) is a question that has exercised many commentators. 76 Four key issues are:

significant doubts remain as to the thickness of legal ice upon which professionals are standing. Had the Mental Capacity (Amendment) Act 2019 been in force, professionals would have had the ability to rely upon a revised version of s.4B MCA 2005 making clear the basis upon which they were able to deprive an individual in need of care and treatment in an emergency, and then pending completion of the relevant statutory processes. 83 However, the likelihood of implementation of that Act, requiring a substantial amount of work on the part of local authorities and NHS bodies, which was already looking unlikely for 1 October 2020, receded rapidly into the distance.

Very shortly after 'lockdown' started, the Court of Protection had cause to consider how DoLS was working in the context of a care home whichas with many othershad barred visitors. It is also striking (but perhaps reflective of the haste with which the application was brought on and considered) that Hayden J did not address the fact that the DoLS regime does not, itself, provide authority to restrict contact, 94 so it is not immediately obvious upon what legal basis contact could be restricted except by going to court.

Finally, it is also, perhaps, striking that no arguments were addressed to Hayden J (or raised by Hayden J of his own motion) as to the risk posed to individuals within the care home by COVID-19. On one view it could have been argued (see further section 2) above that BP's Article 2 rights in fact pointed not to the cessation of contact between him and his family, but for his rapid move to his daughter's house, and the provision of such support to her there as required to ensure he could be kept safe there. Not only would the Court of Protection have to find ways in which to ensure that family members and/or informal carers did not feel excluded by the arrangements, the court would have to find ways in which to ensure that sometimes painful progress towards the greater participation of the subject of proceedings -'P'was not lost. 100 The guidance noted above from Hayden J actively solicited "[i]maginative ideas […] to ensure that P participates in their proceedings where they are able to so do safely and proportionately." 101 But given that "[w]here judicial meetings with P are necessary for a determination of the issues then remote conferencing technology to facilitate that meeting is the only likely mechanism," 102 immediate hurdles towards an important way in which such participation could take place were clear. The energy and commitment of those concerned with the court to ensure that it could continue both to offer a service, and to serve P was clear, but the task at the time of writing appeared formidable.

Space precludes a detailed consideration of the issues that arise in the context of the effect of COVID-19 upon the scarce critical care resource within England & Wales, and also the scarce resource of ventilation. 103 However, they do need to be touched on briefly as radically changing the framework for medical decision-making. In a series of cases starting in 2013, 104 the Court of Protection had developed an increasingly sophisticated notion of best interests in this context in which even interventions with a very small chance of success could be said to be in the best interests of the patient if it was clear that this is what they wanted. 105 This did notquitecross the line into holding that approaching matters through the prism of best interests could require that clinicians provide treatment that they did not consider clinically appropriate, 106 but on occasion came very close. 107 The impact of COVID-19, however, means that it appears clear that decision-making in the case of those with impaired decision-making (and whether or not they have COVID-19) might have to be undertaken on the basis not of what was in their best interests, but on a utilitarian basis in order to save the maximum number of lives. What had been a perennial question for ethicists and the subject of planning that had never had to be moved into anything close to an operational phrase 108 has become an ever more pressing issue.

However, national bodies (in particular national NHS bodies) have been notably slow to produce guidance addressing the issues, perhaps because of political (including health service political) concerns as to the public reactions that would be engendered by the recognition of the reality of the position. They are also perhaps aware of how guidance produced under speed in countries that had been affected ahead of England (most notably that produced by in the Italian context by SIAARTI, which suggested that there might need to be a simple age cut-off for admission to ICU 109 ) would look if transposed directly into the English context.

Further, an earlyand very high-level -attempt to provide guidance (the NICE 'rapid response' guideline NG159 110 ) was the subject of threatened judicial review proceeding within hours because of the perception that its reliance upon a tool known as the Critical Frailty Score would discriminate against individuals with learning disability or other 'stable' cognitive impairments. 111 It was perhaps not a coincidence that it took another 10 days before any other body (this time the British Medical Association) put its head above the parapet, 112 that time to press coverage including the headline "Virus patients more likely to die may have ventilators taken away"). 113 Guidance from the Chief Medical Officers (who appeared frequently in the 17:00 press conferences that became such a feature of the crisis) was still not forthcoming at the time of writing.

Whilst there was limited 'off-the-shelf' material that could be drawn upon, much of that material did not, in fact, provide the sort of detailed operational detail as to either procedures or criteria that was really required. This meant, therefore, that clinicians have bene left at a vital period in the run up to the peak essentially trying to make it up as they went along, frequently seeking to do so whilst juggling heavy, and increasing, clinical loads at the same time. They have also been left unclearand in many cases in real moral distress in consequenceas to the point at which they were supposed to stop applying ordinary principles of medical decision-making and instead to start operating in a world governed by some form of utilitarianism. A further consequence of the slowness of national bodies to give direction was that NHS Trusts have not been not given either the 'push' or the tools to start creating the governance structures which would be crucial to ensure that triage decisions take place within structures that could provide both oversight of the process and support to clinicians operating within it.

This has had one particularly pernicious consequence in the case of those with disabilities, including those with impaired decision-making capacity. Whether out of a misplaced excess of zeal in attempting to undertake advance care planning, a misunderstanding of the law, 114 or otherwise, it appeared that significant numbers of individuals were having decisions made as to resuscitation without any form of consultation; in other cases, it appeared that individuals were being pressured into signing their own DNACPR notices. 115 Many such individuals were elderly, but did not have specific disabilities. In other cases, it appeared that judgments were being made that (e.g) CPR should not be attempted because they had, for instance, a learning disability. This prompted an urgent letter from the National Director for Mental Health, NHS England and NHS Improvement, the National Clinical Director -Learning Disability and Autism NHS England and NHS Improvement and the Medical Director for Primary Care, NHS England and NHS Improvement to remind Trusts and GPs that:

The health of some people who have a learning disability and / or a diagnosis of autism may be at risk from the presence of co-existing physical conditions and also from inequities in access to and delivery of appropriate and timely assessment and treatment for physical health conditions. end of the pandemic makes a more or less cheering read than it does at present will depend, in very significant part, upon the actions taken by those who care about capacity law over the coming months, when it will be tested as never before.

By the Committee on Ethical Aspects of Pandemic Influenza in 2007: see Department of Health 'Responding to pandemic influenza-the ethical framework for policy and planning (London: Department of Health

Under, in particular, the National Health Service Act

Coronavirus Act 2020 Explanatory Notes

Department of Health and Social Care 'Care Act easements: guidance for local authorities

Department of Health and Social Care 'Care Act easements: guidance for local authorities

A guide to the implementation of the European Convention on Human Rights

Whether a person already subject to a DoLS authorisation at a particular care home or hospital (or, indeed, a patient detained in hospital under the MHA 1983) was then subject to sufficient additional restrictions in consequence of being kept in isolation within that facility so as to give rise to an additional deprivation of their liberty

Whether it was legitimate to use DoLS to authorise deprivation of liberty for purposes of preventing the spread of infection from the person given the statutory requirement that a DoLS 70 CA

CA 2020 Sch

And it was anticipated at the time of writing that statutory guidance would confirm this position

Ors (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS

where Baker J held that the capacity to ask to issue proceedings "simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings

A Clinical Commissioning Group v AF & Ors

Note, as the blog itself makes clear, it was revised subsequently to reflect the views of the man's daughter. As to the judge's perspective, see Catherine Baksi

Remote justice: a family perspective

For an overview of how the court had been seeking to improve participation, see Mr Justice Charles

A Clinical Commissioning Group v AF & Ors

A Clinical Commissioning Group v AF & Ors

For a discussion of the issues more widely as they stood at the start of April 2020, see Dominic Wilkinson, 'ICU triage in an impending crisis: uncertainty, pre-emption and preparation

Which Aintree reinforced could not happen: see paragraph 18

EWCOP 39, I which Keehan J, considering the submission that CPR would not be in the best interests of the person, noted that "key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish

For an overview of the legal and ethical issues that arose in that context (together with the framework within planning had started), see Alex Ruck Keene

Resuscitation and Intensive Care): Clinical Ethics Recommendations for the Allocation of Intensive Care Treatments in exceptional, resource-limited circumstances -Version n

COVID-19 rapid guideline: critical care in adults NICE guideline

Virus patients more likely to die may have ventilators taken away

The author thanks Mary Donnelly for her very rapid assistance with editing, and the two reviewers for their incisive, constructive, and exceptionally speedy responses. Any errors remaining are the responsibility of the author.

At the time of writing, it remained unclear whether this letter would produce a material effect.

The focus of this article has been upon mental capacity, rather than mental health law. However, for completeness, and because of the overlap between individuals with impaired decision-making capacity and those falling within the scope of the MHA 1983, it is important to note that here, too, the landscape has been changed. This is not just because of the complexities of addressing public health concerns within psychiatric hospitals, which bring with them similar issues to those discussed above in relation to DoLS, but also because of changes to primary legislation.The CA 2020 includes (in s.10 and Schedule 8) the power to make temporary changes to mental health and mental capacity legislation across the United Kingdom. Those powers include the ability drastically to strip back the procedural safeguards around admission and treatment under the Mental Health Act 1983; 117 it is perhaps odd, given how much more relevant the MCA 2005 is to the response to the pandemic, that the CA 2020 only addressed the MHA 1983 in primary legislation. 118 At the time of time of writing, those powers have not been brought into force. However, the power under the Act 119 to enable changes to the composition of the Mental Health Review Tribunal for Wales was brought into force on enactment, mirrored by a Pilot Practice Direction 120 in England. At a stroke, tribunals were reduced to single judges (as opposed to a judge sitting with a medical member and a specialist lay member) sitting remotely, with hearings taking place largely by telephone. I do not dwell further upon these changes, except to say that the reader can easily imagine the practical impact upon all concerned, above all the patients. 121

As noted at the outset, this tour d'horizon of the state of mental capacity law in England & Wales only a short time into the COVID-19 pandemic presents a challenging picture. Across the board, options are being removed, and constraints necessary for utilitarian goals being imposed with inadvertent, and often disproportionate consequences. But there are glimmers of hopefor instance in the potential for the ECHR to be a very much more powerful tool than it has been to date in terms of securing service provision. 122 And in a world where nothing appears certain, and everyone, irrespective of disability, is seeking answers, it is arguably easier than it was ever before for supported decision-making to appear something of universal relevance. Whether and how the second draft of history to be written after the 117 For an overview, see the 39 Essex Chambers Rapid Response Guidance Note: COVID-19 and the Mental Health Act 1983, available at https://www.39essex.com/tag/mental-capacity-guidance-notes/ (accessed 4 April 2020). 118 It is quite possible that this was down to the fact that changes had had to be contemplated in relation to the MHA 1983 in 2009 in the context of swine flu, so, to some extent, there were legislative amendments which could be taken off the shelf. 119 Section 10 of and Part 1 of and paragraphs 11, 12 and 13 of Schedule 8, by virtue of The Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 (SI 2020 No. 366 (W. 81)) 120 Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health), 19 March 2020. 121 Linked also to this were the very substantial difficulties caused by the practicalities of complying with a legal aid system dependent upon a set of procedures that were not easily adaptable for remote working. 122 There of course, a considerable irony to this given that the Conservative Government has repeatedly expressed hostility to the ECHR, and a desire to revisit how human rights are protected in the United Kingdom, including through a British Bill of Rights.J o u r n a l P r e -p r o o f