The Mental Capacity Act 2005 (MCA) provides a legal framework for making particular decisions on behalf of people who may lack the mental capacity to do so for themselves. The Act requires that, as far as possible, people make their own decisions and are helped to do so when needed. When they lack mental capacity to take particular decisions, any made on their behalf must be in their best interests and as least restrictive as possible. People can only be deprived of their liberty to receive care and treatment when this is in their best interests and legally authorised under the MCA.

In relation to Best Interests decisions and Covid testing: In the first instance, all practicable steps should be taken to support the person to make the decision to be tested for COVID-19 for themselves. However, if this is not possible or is unsuccessful, then it may be appropriate to make a best interests decision under the MCA. When doing so, the decision-maker must consider all the relevant circumstances, including the person’s wishes, beliefs and values, the views of their family and what the person would have wanted if they had the capacity to make the decision themselves. You should make a record of their decision. Best interests decisions should be made on an individual basis. No automatic assumption should be made that was in the best interests of one patient will be in the best interests of another, even if the 2 cases share similar characteristics.

For many people, a best interests decision to test for COVID-19 will align with the decision that we could have expected the person to have taken themselves if they had the relevant capacity. It is reasonable to conclude that most people with the relevant mental capacity to take the decision, would have agreed to testing, for the protection of their own health, and others around them.

There is currently no cure for COVID-19, but targeted treatment, based on a positive test result, can improve lives (by reducing the severity and duration of symptoms), and in some cases, save lives. Testing an asymptomatic patient at risk of infection, for example before they move to another setting, can also identify infection earlier and improve outcomes for that person. Decision-makers should consider this context when making best interests decisions about testing.