Oxfordshire Director of Legal

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Government amends MCA/DOLS guidance during COVID-19 to include section on right to appeal if those subject to emergency health powers and lacking capacity

The Department for Health and Social Care has added a new section to The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic: additional guidance on the right to appeal if someone is subject to emergency health powers and lacks the relevant mental capacity.

The new section reads as follows:

The use of restrictions under the Coronavirus Act 2020 on potentially infectious individuals will rarely need to be applied in the case of individuals who lack the relevant mental capacity, as the MCA and, in some cases, the MHA provides the legal basis for making decisions in order to ensure that individuals can be tested for COVID-19 or to restrict the movement of individuals who have or are suspected to have the virus.

If restrictions or requirements under the Coronavirus Act 2020 are applied, an appeal may be brought to a magistrates’ court by any person on whom a requirement or restriction is imposed. If someone lacks the capacity to make an appeal, it can be made by someone or some authority on their behalf. This may, in some cases, be necessary even if the person is not objecting or does not appear to understand that they can make a challenge.

The amended guidance can be viewed here.