Watchdog criticises lack of understanding of Mental Capacity Act and DoLS

The Mental Capacity Act is not well understood or implemented in practice, the Care Quality Commission has warned in a report on the operation of the Deprivation of Liberty Safeguards (DoLS).

The report, Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards, revealed that the number of applications to use the safeguards rose 27% in 2011/12 to 11,393 (up from 8,982 in 2010/11).

More than half (56%) of all applications received resulted in authorisations being granted – a similar proportion to 2010/11.

The Commission said it had also found 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. The average rate for England as a whole was 28 per 100,000.

Some 8,213 applications were made to local authorities (by care homes), while 3,186 applications were made by hospitals to Primary Care Trusts. However, the CQC reported that there was wide variation in how local authorities carried out their functions as supervisory bodies.

The watchdog said:

• Its evidence showed 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’ did “not always appear to signal that there has been a process of best interests decision-making in accordance with the MCA”.
• There was 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.”
• There was 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.”
• There 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 was very little evidence of the involvement of people who used services and their relatives/friends in the processes of the DoLS 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."

The CQC called on providers and commissioners of services for vulnerable adults to improve their understanding of the MCA and the DoLs.

“Training in the MCA and the safeguards is still patchy and not always reflected in improvements in practice,” it said. “The use of care plans, recording of incidents and gathering of feedback from staff, people who use services and their relatives all need to improve.”

The report suggested that stronger links between managing authorities and local Independent Mental Capacity Advocate services might be one way of improving staff knowledge.

The Commission added that providers must implement policies that minimised the use of restraint.

It said: “Restraint should always be a ‘last option’….CQC expects to find a greater understanding of the best interests and least restriction principles in the MCA and of the practice implications of the MCA’s provisions on restraint. Staff need to be aware of when lawful restraint might be moving into a deprivation of liberty that requires specific authorisation.”

The watchdog also urged providers and commissioners to establish robust review processes and other mechanisms for understanding the experience of people subject to the DoLS.

“CQC’s inspectors saw examples of friends and relatives being excluded from best interests decision-making, contrary to the requirements of the law,” the report said. “Providers and commissioners must go to greater lengths to consult with relatives and friends as part of the process when using the safeguards.”

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.”

A copy of the report can be viewed here.