Care regulator the Care Quality Commission (CQC) is to make checks on the implementation of the Mental Capacity Act (MCA) a routine part of hospital and care home inspections.
This move comes as the regulator has also reported concerns that the MCA, which includes the Deprivation of Liberty Safeguards (DoLS) is still not understood and implemented consistently across health and social care services.
In its fourth annual report into the Deprivation of Liberty Safeguards (DoLS), the CQC says that checks on the implementation of the MCA will become an integral part of its new approach to regulation, as it implements its new strategy ‘Raising standards, putting people first’.
The MCA sets out how people in vulnerable circumstances – including those with mental ill health and/or learning disabilities should be cared for and how to strike the balance between respect for rights to liberty and independence and the need to protect people when they lack the capacity to make decisions.
CQC’s report into how the DoLS and MCA have been applied during 2012/13 highlighted various concerns including:
• People in care homes and hospitals may continue to be subject to restraint and possible deprivation of liberty without legal protection
• People’s experiences of the DoLS are mixed – the system can work well for people
• A significant increase in the number of applications for the use of DoLS to protect the rights of people aged over 85
• Application rates continue to vary by region – but the reasons for this are unknown
• Around two thirds of care homes and hospitals are failing to notify CQC of the outcome of DoLS applications as required by law.
The report also recommends that NHS England should include an expectation on the effective use of the DoLS into the standard contract for providers.
David Behan, chief executive of the CQC, said: “We expect more focus on reducing the restraint and restriction of vulnerable people lacking capacity.
“We want to ensure people who are unable to consent to treatment because they lack capacity receive high quality care as a fundamental part of health and care services. While there has been an increase in the use of DoLS there is still much more that needs to be done to ensure people are appropriately cared for.
“This year, CQC is strengthening its approach to monitoring this legislation and we will be working more closely with local authorities to support them in their roles as supervisory bodies.”
DoLS confusion concerns
Paul Farmer, chief executive of mental health charity Mind, expressed concerns at the report’s findings: “We know that confusion persists among staff about how DoLS should be used, and that practices such as restraint may be being overused,” he said. “The widespread variation in the use of DoLS is also of great concern to us and could mean that people rights are being ignored.
“Closer scrutiny by the CQC is an important step in understanding and tackling these fundamental issues more effectively. DoLS play an essential role in protecting the human rights of people who are at their most vulnerable and so it is vital that we understand as much as we can about how and why they are being used. Where it is considered necessary to deprive someone of their liberty, individuals and their families must have faith that it is being done in an appropriate and lawful way.
“We particularly welcome the CQC’s emphasis on listening to the experiences of people who have been deprived of their liberty as a key part of their monitoring.”