In a stark reminder to all health and social care providers of the importance of getting it right on consent and mental capacity, an NHS Trust has been fined £8,000 by the CQC for breaching regulatory requirements around consent and compliance with the Mental Capacity Act.

The case related to a patient who was thought by the Trust to lack capacity to make decisions about his care and treatment.  The CQC found that assumptions had been made about him lacking capacity and that more should have been done to communicate with him in a way he understood, resulting in the CQC taking criminal enforcement action against the Trust.

In this briefing, we look at what the case involved, the action taken by the CQC and what health and social care providers should take from this.

What was the case about?

A 55 year old patient who had been deaf since birth and had diagnoses of epilepsy and autism underwent some medical procedures in hospital in connection with feeding tubes which he needed for nutritional support.

The Trust decided that the patient lacked capacity to consent to these procedures.  However, the CQC found that it did so without sufficient assessment of the patient’s mental capacity having been carried out and without enough effort being made to communicate with him, every time, in a way that he understood.

Specifically, issues identified by the CQC included:

• not attempting to arrange for a British Sign Language interpreter to assist with communication
• not involving family members or consulting the patient’s Lasting Power of Attorney (although contact was made with the LPA in relation to one of the procedures)
• not recording details of how a best interests decision was arrived at
• not properly documenting capacity assessments

Also, whilst the CQC was satisfied that Trust-wide training and policies around consent and mental capacity were in place, there were some issues with oversight/audit/monitoring and completion of training, with the emphasis being on ensuring that policies and training are followed in practice.

What action did the CQC take?

The CQC found that the Trust had breached Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires health and social care providers to obtain the consent of the relevant person when providing care and treatment to them and also requires that, if someone is 16 or over and is unable to consent because they lack capacity, the provider must act in accordance with the Mental Capacity Act 2005.

Breach of this Regulation 11 requirement can constitute a criminal offence, resulting in criminal enforcement action, as happened here.  In this case, the CQC issued the Trust with two fixed penalty notices, totalling £8,000.

Comment

Whilst health and social care providers will be aware of the ever-growing list of CQC criminal enforcement actions in relation to the Regulation 12 safe care and treatment requirements, this case shines a new spotlight on Regulation 11 and its requirements around consent and Mental Capacity Act compliance, including the potential consequences of getting that wrong.

The fact that the CQC decided to go down the criminal enforcement route in this case underlines its current focus on addressing inequalities in healthcare, especially around people with protected characteristics.  It is also illustrative of the intense level of regulatory scrutiny the CQC is applying to the care of those with autism and learning disabilities across the board.

Finally, it is worth noting how these issues came to the attention of the CQC, which was through a routine review of serious incidents reported by the Trust, demonstrating how important it is for every health and social care provider to ensure that their consent and capacity policies and training are as they should be and, crucially, that staff on the ground understand them and are supported to follow them in practice.