Mental capacity and coronavirus legislation

As part of the Law Society’s work on coronavirus, we’ve been working to ensure that the most vulnerable parts of society are protected.

Birmingham magistrates court

New criminal offences have arisen out of the social distancing legislation for England and Wales. People can be fined, and ultimately face conviction in a magistrates court, if they refuse to follow the regulations. This includes people who have cognitive impairments of different kinds, who may not be able to understand the new changes that are affecting their daily lives.

The CPS’s approach

We’ve been engaging with the Crown Prosecution Service (CPS) to highlight the importance of considering a person’s decision-making capacity when deciding whether it is in the public interest to charge them with such an offence under the Health Protection Regulations.

The College of Policing Guidance highlights that officers will keep an inquisitive, questioning mindset. In respect of vulnerable persons, it cautions that it may not be safe for everyone to be at home and officers will consider whether there are any safeguarding issues at play, for example in cases of domestic abuse, child abuse or mental health.

The CPS has confirmed that “the issuing of criminal proceedings is likely to be a matter of last resort, as policing ‘by consent’ and encouraging voluntary compliance is unlikely to lead to criminal proceedings in most cases in which persons breach the regulations, particularly in respect of those who are vulnerable”.

Enforcement is expected to be by issuing prohibition notices or directions, and fixed penalty notices, which allows the offender to discharge any liability by paying a fine and complying with the terms within 28 days.

This is consistent with the CPS’s usual approach to public interest prosecutions set out in the Code for Crown Prosecutors which considers relevant factors including whether a suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability.

When considering persons with impaired decision-making capacity, the CPS will consider the Mental Health Legal Guidance, as it would for any other offence.

It’s more important than ever to clarify these matters, as the rights of people with mental health needs are at high risk during this pandemic.

It is reassuring to see that the government is taking a pragmatic approach in relation to the protection and participation of vulnerable people under the new legislation, however we will continue to press for these approaches to be clearly communicated to the public via guidance.

Rights of people with impaired decision-making capacity under the new legislation

We’re also working to ensure that the measures provided for in the Coronavirus Act to require isolation of those who have or are suspected of having coronavirus are used appropriately in relation to those with impaired decision-making capacity.

It is vitally important that these people can understand any new restrictions imposed under the Act, as otherwise they may be at risk of prosecution due to impairments in their decision-making capacity.

They should be given the same rights under the new legislation as they would normally have, including the ability for an appeal to be brought on their behalf if they do not have the capacity to do so. As the legislation does not expressly refer to mental capacity, we have pressed the government to confirm that this will be the case, engaging with the Lord Chancellor and Ministry of Justice.

The Department of Health and Social Care (DHSC) is now considering whether any additional measures should be introduced to help with the appeals process for a person who may lack mental capacity. This is especially important given the difficulties associated with social distancing and remote hearings arising from any coronavirus-related offences.

The DHSC is also closely monitoring whether and when the temporary suspension of some of the safeguards within the Mental Health Act 1983 will be brought into force. We’re engaging with the government to ensure that this is only when it is proven to be necessary.

We’ve emphasised to the DHSC that any departures from the Mental Health Act under these powers, if they come into force, should be exceptions rather than the ‘new normal’.

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