CQC finds Mental Capacity Act not well understood
CQC finds Mental Capacity Act not well understood across all sectors and calls for more work by providers and commissioners to improve.
CQC’s report on its monitoring of the Deprivation of Liberty Safeguards reveals that there is still a widespread lack of understanding of the wider Mental Capacity Act. The Mental Capacity Act is a very important mechanism for protecting the rights of people who do not have the ability (mental capacity) to make certain decisions for themselves.
CQC’s evidence shows that in some care homes and hospitals, people’s freedom to make decisions for themselves is restricted without proper consideration of their ability to consent or refuse.
Some examples showed little or no evidence of any attempt to maximise a person’s decision-making capacity before resorting to restriction or restraint. The use of the phrase ‘best interests’ does not always appear to signal that there has been a process of best interests decision-making in accordance with the MCA.
David Behan, Chief Executive of the Care Quality Commission said: “If someone has dementia or has a severe learning disability they can still contribute to decisions about their care. If this is done properly then people will receive appropriate care; if it is not done then people can be deprived of their liberty. Understanding the Mental Capacity Act and the way it is applied is critical to good quality, safe care. Those providing services, must ensure that their staff understand the Act and what it means for the care and treatment of people.”
The report found:
There is confusion among care staff about the basic MCA requirements especially relating to the use of restraint. The use of restraint is not always recognised or recorded properly. Because of this it is not easy to monitor.
The report identified a lack of training. In some cases it was reported that managers and senior staff had received training, but other types of care staff had not. This variation suggests that while some form of training is being provided it is not consistent.
The use of restraint can become routine when there is a lack of understanding and proper governance. It can also be hard for staff to gauge whether restraint is proportionate and in someone’s best interests.
Another theme identified was poor practice in services where non-detained patients were on wards alongside patients detained under the MHA and their rights were being restricted alongside those of the detained patients. This seemed to be due to a lack of staff knowledge and awareness concerning the differences between the MCA and Mental Health Act
There is very little evidence of the involvement of people who use services and their relatives/friends in the processes of the Safeguards themselves. This is a significant omission: such consultation with the ‘relevant person’ and with their relatives and/or close friends interested in their welfare is a mandatory part of the assessment process.
Improvement
During 2011/12 CQC took a number of steps to strengthen the relevant skills and knowledge of compliance inspectors in order to promote a wider and more consistent understanding of the MCA in general and the Safeguards in particular.
CQC devised an e-learning package for inspectors, and related learning has been included as an important and integral part of both permanent and bank inspector induction courses. We have also taken steps to improve the awareness of the staff who assess applications for registration.
We acknowledge that CQC still has work to do to ensure that all relevant inspectors have a sufficient level of understanding of the MCA to support a consistent and effective approach to monitoring the use of the Safeguards.
Conclusions
Providers and commissioners of services for vulnerable adults must improve their understanding of the Mental Capacity Act and the Safeguards.
Care providers must implement policies that minimise the use of restraint.
Providers and commissioners of services must establish robust review processes and other mechanisms for understanding the experience of people subject to the Safeguards.