CQC finds Mental Capacity Act not well understood across all sectors and calls for more work by providers and commissioners to improve

28 March 2013

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.

Ends

For media enquiries call the CQC press office on 0207 448 9401 during office hours or out of hours on 07917 232 143.

For general enquiries call 03000 616161.

1. The Mental Capacity Act provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.
2. CQC inspectors monitor the operation of the Deprivation of Liberty Safeguards as one aspect of broader inspection visits to settings in which the Safeguards may be authorised – that is care homes and hospitals. Sometime CQC also raise issues relating to the Safeguards through our dedicated programme of visits to meet patients detained under the Mental Health Act.
3. There has been a year on year increase in the number of applications for the Safeguards since their first introduction. There were 11,393 applications in 2011-12, which represents a 27% increase on the 8,982 in 2010/11 and a 59% increase on the 7,157 applications in 2009/10, the first year of the new Safeguards.
4. Over half (56%) of all applications received resulted in authorisations being granted. This is a similar proportion to the 55% granted in 2010/11, but higher than the 46% granted in 2009/10.
5. CQC have discovered a regional variance in the number of applications for the Safeguards. The East Midlands had the highest rate of applications, at 51 per 100,000, and London had the lowest rate at just 17 per 100,000. These compare to an average rate for England as a whole of 28 per 100,000.
6. 8,213 applications were made to local authorities (by care homes), while 3186 applications were made by hospitals to Primary Care Trusts (PCT)
7. Reporting applications for DoLS to the CQC by hospitals is generally better than reporting by care homes. Additionally, the rate of reporting to CQC by hospitals has increased more than the rate of reporting by care homes.
8. Dementia accounted for 53% of all applications, and this is reflected in the age profile of people who are the subject of DoLS applications. 58% of applications relate to people aged over 74. For the over 84s the application rate is 25 in 10,000. This compares with 12 in 10,000 for 75-84 year olds, 3 in 10,000 for 65 – 74 year olds and just 1 in 10,000 for 18 – 64 year olds (working age adults).