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12th April 2021

Does ‘social distancing’ fall under the rubric of informed consent? (Last update: 12.04.21)

In thinking about this question, it’s important to remember that everyone has the right to make their own decisions, about everything, as long as they have the mental capacity to do so.

The best interests framework does of course include consent in medical contexts, but all decisions about keeping ourselves and others safe fit that framework.

It might be tempting to see this as a medical decision since it’s about our own and other people’s health and safety, but it’s probably not particularly helpful, or necessary, to think of it in this way: see below for the reasons.

Consent: a broad concept

As members of society, we agree or ‘consent’ to lots of ways of behaving, to protect ourselves and others: keeping to the speed and alcohol limits when driving, queuing at a bus stop rather than engaging in a rugby scrum. Decisions about PPE or social distancing in the pandemic are similar, in that they affect us and the wider society. To decide how to behave, we take on board lots of messages, for example about an unprecedented new virus, and what is safest for ourselves and others. We make decisions based on our values as well as on how we see the risk to us and our families, and also on what is socially acceptable, or even illegal. For this reason, the vast majority of people might grumble a bit, but willingly go along with government guidance and rules on how, when and where we can meet up with other people at this time.

Like medical consent, all our agreement and actions must be decided freely and must always be ‘informed’ – we all need certain information to make any decision for ourselves.

It’s vital to be clear what this decision-specific information is. To consent to or refuse medical treatment – for example, a COVID-19 vaccination – we need to know:

  • The benefits of the jab to ourselves and others
  • Possible side-effects and how likely they are to occur
  • What would happen, health-wise and, potentially, in affecting our ability to travel or even go to the pub, if we refuse the jab

This clearly is a ‘medical’ decision: the person injecting us gets their protection from liability either from our freely given consent, based on the right information, given simply if necessary (often called ‘informed’ consent), or by knowing that they are acting in accordance with a best interests decision made for this specific person, at this time. For more detail on vaccination in someone’s best interests, see vaccination in the absence of capacity.

To decide whether to ‘socially distance’, someone needs to know that:

  • The government strongly advises us all to do it, to keep ourselves and others safe
  • This illness can be mild for some people but really serious, even lethal, for others
  • Experts think now that COVID-19 is often passed from one person to another by breathing
  • Someone may not know they’re infected but could still give it to someone else

And they need to know roughly what a generally safe distance looks like, in practice around 6 feet or 2 metres, or two arms’ length.

Then it’s up to individuals to decide to do as advised or not. It’s a principle of the MCA that any of us can make unwise decisions, with capacity. This means that a person who has capacity to make this decision can decide simply not to bother with social distancing, perhaps because they don’t believe coronavirus exists anyway, and take the consequences – in practice, probably being glared at, or asked to move further away. The Coronavirus Act 2019 does say that the police can prevent people from behaving in a way that risks harming other people, but this level of anti-social behaviour usually seems to be ignored by the authorities.

Best interests decisions

The MCA says we must be helped in all possible ways to make our own decisions – so that we can, as the Act says, ‘understand relevant information, remember it for long enough, so that we can use it to use or weigh it to reach a decision’.

When people still can’t do this, in spite of lots of help, and if this inability is ‘because of any disorder or disability of their mind or brain,’ the decision must be made for them using the MCA best interests provisions, explained clearly in chapter 5 of the MCA code of practice.

  • This applies whether the decision involves a medical procedure carried out by a professional or not: it can relate to accepting the jab, or to wearing a mask in a shop, or to keeping a safe distance from other people, or crossing busy roads safely, or using a kettle
  • Best interests are holistic, rather than just clinical: it’s in most people’s best interests to have the contact with their family, friends and wider community that can only happen, at the moment, if people obey the COVID-19 rules.
  • Health and social care staff are protected from liability if they make person-centred decisions for people who lack capacity, provided they do their best to decide in accordance with the MCA process
  • Most people do care about the welfare of others: for example, people want to protect those they love from serious illness, and most also care about the health of people they haven’t even met. So, it’s usually in their best interests to be helped to do the things they lack capacity to decide about, such as staying a safe distance from other people. Not only does it help keep them safe and possibly allow them out into the community when the rules permit, it often aligns with people’s deepest values, in wanting to keep other people safe

 Further reading

The Coronavirus Rules: what you can and can’t do (updated 6 April 2021)

Rules for visits into a care home  (updated 6 April 2021)

Rules for visits out of care homes (updated 7 April 2021)

NHSEI Primary care Coronavirus various documents:

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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