Learning Disability Today
Supporting professionals working in learning disability and autism services

Mental Capacity Act still not well understood, CQC says

There is still a widespread lack of understanding of the Mental Capacity Act (MCA), with the use of restraint a particular concern, a report by social care regulator the Care Quality Commission (CQC) has revealed.

The CQC’s report on its monitoring of the Deprivation of Liberty Safeguards (DoLS) found 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.

The CQC’s report also highlighted confusion among care staff relating to the use of restraint. It found that the use of restraint is not always recognised or recorded properly and because of this it is not easy to monitor.

In addition, 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. The CQC said this variation suggests that while some form of training is being provided it is not consistent.

The regulator added that 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 Mental Health Act (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 MHA.

The CQC also found little evidence of service users and their friends/relatives being involved in the processes of the DoLS. This is significant because consultation with the ‘relevant person’ and their relatives and/or friends is a mandatory part of the assessment process.

In conclusion, the CQC called for providers and commissioners to improve their understanding of the MCA and DoLS, and to establish robust review processes and other mechanisms for understanding the experience of people subject to the Safeguards.

Additionally, care providers must implement policies that minimise the use of restraint.

David Behan, chief executive of the CQC, 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.”

Toby Williamson, head of development and later life at the Mental Health Foundation, added: “Six years ago The Mental Health Foundation, along with many other organisations, service users and family carers, welcomed the MCA as a progressive and positive piece of legislation. The CQC report highlights what many of us knew; that DoLS have proved to be a particularly challenging aspect of the Act.

“We are concerned that attitudes might turn against the MCA because of a lack of awareness and understanding, preoccupation with DoLS, and some highly legalistic and philosophical debates about the Act.

“Organisations with an interest in the MCA now, even more than ever, need to be working together to find ways in which the Act can be better understood and implemented in order to benefit all who are affected by it.”

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