One of the first pieces of guidance to appear in relation to the Mental Capacity Act 2005 was NHS’s COVID-19 Hospital Discharge Service Requirements , published on 19 March 2020, which at page 29, states:
“Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge.”
Subsequently, on 24 March 2020, during the Second Reading of the Coronavirus Bill, Lord Bethell announced that emergency guidance is to be made available in relation to DOLS. The new guidance is to clarify when a DOLS authorisation is necessary, and the basis on which an assessment can be made, including, phone or video calling for assessment.