CQC’s approach to Mental Capacity Act
compliance
Neil Grant
Partner, Ridouts LLP
26 February 2014
Care Quality Commission
CQC is focussing on Mental Capacity Act compliance
Understanding of and compliance with the MCA is
patchy
CQC also monitors the DOLs system
Particular concerns exist around consent issues and
best interest decisions
This has led to enforcement action which is likely to
increase with the planned introduction of the
fundamental standards.
Compliance with the MCA
• Compliance with the MCA is mandatory
• The challenge for health and social care
professionals is working out what this means in
practice
• The MCA provides an excellent framework but
there is a risk of making assumptions about
capacity and best interests
• Compliance affords the decision-maker with a
degree of legal protection from civil and
criminal liability
Codes of Practice
• Those working professionally with people lacking
capacity have a DUTY to have regard to the MCA
and the relevant codes.
• Two codes:
Mental Capacity Code of Practice
Deprivation of Liberty Code of Practice
Compliance with the MCA
Non-compliance might lead to a variety of legal consequences
for the provider depending on the circumstances of the case,
including:
• CQC enforcement
• Contractual difficulties
• Safeguarding referrals
• Neglect findings before a coroner
• Claims for damages e.g. negligence or Human Rights Act
claims
Compliance with the MCA
• Registered providers and managers might be
subject to CQC enforcement
• Professional disciplinary issues e.g. GMC, NMC
• Performance management issues involving staff
• Criminal liability for trespass and assault
• Criminal liability for neglect or ill-treatment
Knowledge deficit
The problem is that most carers will not have a working
knowledge of the MCA (both informal carers and those
working in care settings)
Even many professionals (particularly GPs) will have a
limited awareness of the legislation
Even those that do have an awareness of the MCA are at
risk of making decisions based on what the courts
have described as the “protection imperative”
Staff need practical guidance
When does a mental capacity assessment need
to be undertaken?
When do best interests decisions need to be
formally taken and who should be involved?
What is the test for judging whether someone is
being deprived of their liberty?
Unhelpful guidance
“You should never express an opinion, without first
conducting a proper assessment of the person’s
capacity to make a decision.”
Office of the Public Guardian, making decisions – a guide for
people who work in health and social care
CQC guidance for providers on capacity
“As a service provider, you assess people’s capacity to make
decisions as part of their normal assessment and care planning
arrangements, whenever this is needed. [my emphasis]”
“Assessments of capacity must be made where there may be
an ‘impairment of or disturbance in a person’s mind or brain’
affecting their ability to make a particular decision.”
CQC the Mental Capacity Act 2005 – Guidance for Providers (Dec 2011)
CQC guidance for providers on capacity
“Having an illness such as Alzheimer’s disease, mental health
difficulties, or a learning disability does not necessarily mean
that a person lacks capacity to make all decisions.”
“A person may have the capacity to choose what to have for
lunch or what to wear, but not whether to take vital
medication. Capacity can vary over time, even over the course
of a day.”
CQC the Mental Capacity Act 2005 – Guidance for Providers (Dec 2011)
CQC guidance for providers on capacity
“The [MCA] code of practice does not require care services
and workers to undertake formal, recorded [capacity]
assessments for minor day-to-day decisions about giving
routine care.”
“You have to use your judgment over whether individual
situations are significant enough to need a formal, written
assessment of capacity, and who to involve in making an
assessment.”
CQC the Mental Capacity Act 2005 – Guidance for Providers (Dec 2011)
CQC guidance for providers on capacity
“As the significance of a decision increases (and
significance must be judged for each person
individually), the assessment and decision-making
process – who is involved and how is it recorded –
should become more detailed.”
CQC the Mental Capacity Act 2005 – Guidance for Providers (Dec 2011)
Capacity - what CQC will be looking for
• The service has a copy of the MCA codes of
practice
• Induction and training for staff includes learning
about how the MCA codes of practice affect their
work
• Staff are aware of the codes of practice and when
assessments of capacity are needed
• Two-stage assessments of capacity have been
made and recorded whenever needed
CQC questions about capacity
Are your assessment and planning records for care,
treatment and support consistent with the MCA’s
code of practice guidelines?
Do staff giving care, support and treatment know
how detailed different assessments of capacity
should be?
Mental Capacity
Mental Capacity – The Task
• The ability to make a decision
• Is the person able to make the specific
decision required, at the time it needs to be
made?
Capacity – Starting Points
• Capacity is presumed
• Incapacity must be proven
• Standard is balance of probabilities
• Assessment of capacity can be carried out by lay
persons as well as professionals.
Assessing Capacity - Stage 1
1. Does the person have an impairment of the mind or
brain, or a disturbance affecting the way their mind or
brain works? (it can be temporary, it doesn’t have to be
permanent)
2. If so, does that impairment or disturbance mean that the
person is unable to make the decision in question at the
time it needs to be made?
Assessing Capacity – Stage 2
• Does the person have a general understanding of
what decision they need to make and why they
need to make it?
• Does the person have a general understanding of
the likely consequences of making, or not making,
this decision?
Assessing Capacity – Stage 2
• P is unable to make a decision if unable:
• (a) to understand the information relevant to the
decision,
• (b) to retain that information,
• (c) to use or weigh that information as part of the
process of making the decision, or
• (d) to communicate his decision (whether by
talking, using sign language or any other means).
Mental Capacity in the Care Setting
Service users with capacity have the right to make
decisions about their lives. This includes:
• Whether to take or refuse medication;
• When to get up and to sleep;
• What to wear;
• Where to spend their days
Assessing capacity
• Capacity assessments should be undertaken in the context
of developing (and keeping under review) excellent care
plans.
• NYC v PC and PC (Court of Protection): sometimes the
decision might be generic e.g. can the person make any
decision about their care owing to their degree of
dementia? However, other decisions may be specific in
nature e.g. a particular type of treatment.
• The specific circumstances may be relevant e.g. fluctuating
capacity.
• Also do not need to understand all the details – salient
factors sufficient.
Best interests
Best interests
• Best interests are at the heart of the MCA and the
MCA determines how to make decisions for those
who lack capacity.
• See Chapter 5 of Code of Practice.
• The person who has to make the decision is known
as the ‘decision maker’ and for day to day care that
is the person making care arrangements i.e. carer
or manager.
Best interests – section 4 checklist
• Best interests should not be made on assumptions about
age, appearance, condition or behaviour.
• All relevant circumstances should be taken into account e.g.
risks and benefits.
• Every effort should be made to encourage and enable the
person who lacks capacity to take part in making the
decision.
• It may be possible to delay the decision until the person
regains capacity.
Best interests – section 4 checklist
• Past and present wishes and feelings, beliefs and values
should be taken into account.
• Views of people close to the person should be considered,
as well as the views of an attorney or deputy.
• NB – special considerations apply to life-sustaining
treatment, though this is likely to be a matter for medical
professionals rather than carers.
• Practice point – record best interests decisions and consult
widely.
Protection for carers
A person (D) who takes reasonable steps to establish whether P lacks
capacity in relation to the matter in question, and
(b)
when doing the act, D reasonably believes—
(i)
that P lacks capacity in relation to the matter, and
(ii)
that it will be in P's best interests for the act to be done.
does not incur any liability for doing that act that he would not have
incurred had the person had capacity and consented.
Section 5 (paraphrased)
Section 5 in practice
• For care homes, main application is for decisions
around personal care.
• E.g. helping with washing, dressing, personal
hygiene etc.
• Also applies to lifestyle choices e.g. helping service
users to participate in social and educational
activities
• More substantial life changing choices may require
further steps, e.g. Independent Mental Capacity
Advocates (IMCAs) for residence changes or
safeguarding.
Section 5 in practice
• See Chapter 6 of Code of Practice.
• The care plan should include a capacity assessment when
necessary. Where the conclusion is that the resident lacks
capacity, agreement as to what actions are in the resident’s
best interests.
• Consideration of whether decisions can be postponed until
capacity is regained.
• Consideration of least restrictive options.
• Careful documentation of decisions, including regular
reviews of capacity and best interests.
Section 5 and Restraint
• Additional considerations apply.
• Is restraint necessary to prevent harm to the
person who lacks capacity? and
• Is restraint a proportionate response to the
likelihood of the person suffering harm and to
the seriousness of that harm?
• NB –the provisions do not allow deprivation of
liberty. That requires authorisation under DoLS.
Restraint
• Very broadly defined
• Can cover restricting someone’s movements in a
service
• Not just physical restraint
• Important to ensure the legal requirements are
met to avoid potential criminal liability for trespass
or assault.
Advance Decisions to Refuse Treatment
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Made when person still has capacity.
See Code of Practice Chapter 9.
Binding if valid and applicable.
Valid if not withdrawn or overridden by LPA, or person has
acted in a way which is clearly inconsistent with the
advance decision.
Applicable if clearly relates to the treatment in question.
Covers treatment not care.
Special rules applies to life sustaining treatment.
More applicable in health setting.
Seek legal advice if appropriate.
Advance Decisions to Refuse Treatment
• The Department of Health has stressed the
importance of GPs and district nurses working with
care providers in dealing with advance decisions
around end of life care
• If valid, they need to be respected.
• We come across situations where locum GPs and
ambulance crews have not respected advance
decisions.
Lasting Powers of Attorney
• People who have capacity can appoint attorneys
under a LPA.
• 2 types of LPA
Personal welfare LPA – check to see if there are
any restrictions.
Property and affairs LPA.
An attorney only has power to give or withhold
consent to the carrying out or continuation of life
sustaining treatment if the LPA expressly so
provides. So always check the LPA!!
Court of Protection Deputies
• Appointed by the Court of Protection to
make decisions for a person lacking capacity.
• Can be e.g. family, directors of social
services, professionals
• Deputies can also deal with personal welfare
decisions e.g. accommodation, complaints,
day to day care.
• A deputy cannot refuse consent to life
sustaining treatment.
Best interests decisions and CQC
“The checklist applies equally to routine, day-to-day
decision-making and will need to be taken into
account when setting and reviewing care plans.”
CQC the Mental Capacity Act 2005 – Guidance for Providers (Dec 2011)
Best interests - what CQC will look for
• Written records of assessments and decisions
(including why, when and how decisions were
made and who was involved)
• Whether staff are aware of the decision-maker’s
section 4 checklist
• Whether people and their supporters confirm that
the person’s past and/or present wishes have been
taken into account
CQC change in the law – summer 2012
Since 18 June 2012, CQC has been able to enforce the section 4 MCA
checklist via Regulation 18 of the Regulated Activities Regulations:
“Section 4 of the MCA 2005 (best interests) applies for the
purposes of this regulation as it applies for the purposes of
that Act.”
So CQC can take enforcement action in respect of non-compliance with the
MCA.
Typically this has been via the service of warning notices.
Recent Supreme Court case
Aintree University Hospitals NHS Foundation Trust v
James [2013] UKSC 67
Mr James was a seriously ill man aged 68 who had
been in intensive care for 7 months. The hospital
trust sought a declaration from the Court of
Protection for declarations as to the lawfulness of
withholding further invasive treatment and CPR.
First instance judge refused to make absolute
declarations but the Court of Appeal decided that the
declarations were in his best interests.
The Aintree University Hospitals case
Sadly Mr James died but the Supreme Court granted
permission to appeal.
Some key points:
• Court of Protection has no greater powers than the
patient would if he had full capacity. Patients
cannot demand that doctors administer treatment
which the doctor considers is not appropriate.
• The question for the court is whether it is lawful to
give treatment not whether it is lawful to
withhold treatment.
The Aintree University Hospitals case
Continued:
• The patient’s wishes are of central importance in
best interests. It is a subjective test, not an
objective one.
• The Supreme Court considered what was meant by
“futility” and “no prospect of recovery” and “overly
burdensome” in the Code of Practice to the MCA
2005.
• Futility is to be considered as treatment which is
“ineffective” or “of no benefit to the patient”.
The Aintree University Hospitals case
Significantly the Court said that “A treatment may
bring some benefit to the patient even though it has
no effect upon the underlying disease or disability.”
As far as prospect of recovery is concerned,
“recovery” meant the resumption of a quality of life
which the patient would regard as worthwhile, not
one that others (including doctors) would regard as
worthwhile.
The Aintree University Hospitals case
The Supreme Court stated that best interests does
not merely encompass medical issues. Assessment of
the medical effects of a treatment is only one part of
the equation.
The court should be cautious “about making
declarations in circumstances which were not fully
predictable or fluctuating.”
So the court did not simply follow the wishes of the
clinicians.
DNAR decision-making
DNAR decision-making
Do not attempt resuscitation (DNAR) decisions
are an important element of care. Where
possible, the individual’s preference should be
elicited through advance discussions with them
and their relatives and carers.
Decisions with Significant Consequences
CQC’s guidance talks of a need to involve health or social care
practitioners and/or other relevant professionals and experts when an
assessment and/or decision has significant consequences, including:
• There are disagreements with the person, their family or others about
the service user’s capacity to make a decision;
• Where a decision not to resuscitate someone is being considered;
• Considering whether the person should move to new accommodation
or receive care, treatment and support at home
So this will include, typically, GPs and in some cases, psychiatrists.
DNAR
• Only applies to cardio-pulmonary
resuscitation (CPR)
• Presumption of CPR if no DNAR Order in
place.
• Regarded as ‘indefinite’ unless cancelled or
a definite review is specified
• Can be controversial – ethical and legal
dilemmas
Cardio-Pulmonary Resuscitation
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In response to cardiac or respiratory arrest
Risk of significant adverse effects
Can be traumatic and lead to death
DNAR Orders – used when CPR will not work
or patient expressed wish not to have CPR
• Risk that staff interpret DNAR Orders
wrongly.
• If in doubt, call an ambulance
When is DNAR applicable?
• Made by most senior clinician involved in
patient care
• Usually made during end of life care.
• Identifiable risk of cardiac or respiratory
arrest.
• Must be tailored to the individual
circumstances of the patient.
Discussing DNAR
• No requirement to discuss DNAR if no clear
presenting circumstances
• Best practice to try to engage early on in the
event that something may happen in future
• Confront respectfully and sensitively
• If don’t want to discuss at the time, try again
later on
• Document all conversations & outcomes
DNAR Forms
• No ‘universal’ form used nationwide
• ‘Red Form’ (produced by Resuscitation Council) is
used in many counties and is usually accepted in
the event of a transfer of a patient to another
county
• It would be useful if Resuscitation Council or others
could issue a form that is considered universal to
avoid confusion.
Legal standing of relatives
• If no legal authority, relatives cannot be
final decision makers
• Relatives help inform the decision
making process
• The decision should always be taken
from the patient’s perspective
Issues surrounding DNAR orders
Documentation
- CQC increased scrutiny
Residential care homes without nursing
- staff generally don’t have the necessary skills to
administer or make informed decision about CPR
- No clear guidance, need effective arrangements
Recording and communicating decisions
• Clear record of decisions
• Readily accessible to all healthcare
professionals
• Communicated upon transfer between
services
• Person who makes the decision is
responsible for ensuring it is communicated
effectively
What do providers need to do?
• Providers have an obligation to make sure
appropriate decisions are taken on behalf of their
service users. It is not enough to say you simply
followed a doctor’s orders.
• Ensure DNAR Orders are filled out correctly with
the appropriate information and consent included
• Advance discussions about end of life care are vital
• It is not a ‘one size fits all’ approach
• Seek advice
When things go wrong
Ill-treatment or neglect
• Section 44 MCA
• An offence for a person (D) who has care of a
person (P) to ill-treat or wilfully neglect P when P
lacks capacity or D reasonably believes P lacks
capacity
• Care not defined – Lord Denning from 1954: “the
homely art of making people comfortable and
providing for their well being so far as their
condition allows.”
Ill treatment and neglect
Capacity in this context:
Will be the service user’s lack of capacity to make
decisions concerning his or her own care.
This emphasises the importance of having proper
capacity assessments in place, particularly if a service
user refuses care.
Ligaya Nursing and R
Ms Nursing was prosecuted under section 44 of the MCA for
wilful neglect – she was a trained mental health nurse who
ran a care home
Patient elderly lady with significant learning disabilities
(functioned around the level of a 7 year old child)
Able to make simple choices but without assistance she
would neglect herself
Alleged lack of care to patient’s personal hygiene and failing
to maintain her room in a clean condition and replace dirty
bedding.
Ligaya Nursing and R
Ms Nursing said that would try and help the patient who
would sometimes refuse to accept her help and in
circumstances like these she felt it was wrong to override her
wishes e.g. the patient expressed a strong dislike for having
her toe nails cut until the point they became painful.
The Court of Appeal noted that the MCA promotes the
autonomy of the individual and that “actions or omissions, or
a combination of both, which reflect or are believed to reflect
the protected autonomy of the individual needing care do not
constitute wilful neglect.”
Important to reflect this in care plans/records.
R v Patel
Nurse convicted for wilful neglect. Appealed to the Court of Protection.
Failure to carry out CPR on a patient in a nursing home.
Patient had been suffering from pneumonia. This had caused respiratory
arrest which in turn caused cardiac arrest. CPR probably would not have
saved his life.
But test does not include causation leading to suffering or injury to
health (which is the test for children).
No DNR order in the man’s room or over his bed.
Proper medical practice required CPR to be given in those circumstances.
Nursing home standard practice was to administer CPR in those
circumstances and the policy of the home provided “if in doubt
resuscitate”.
R v Patel
Emphasises the importance of having up-to-date end of life
care documentation in place
One other case involved a nursing home that had blanket
DNAR orders in place (the opposite problem) but these were
not patient specific – just signed by a GP and put on the file!
Staff misunderstood the remit of the order and decided not
to actively support a patient who died. It went to an inquest
and a neglect verdict was entered.
It is also important to ensure best interests decisions are
properly recorded where the patient lacks capacity (as well
as a clear record of the decision relating to capacity)
Coroner’s case
A patient in a care home deteriorated over several
days and a doctor was not called. The patient died.
Minimal nursing observations were made in the days
prior to death.
The coroner concluded that an Advanced Care Plan
document had influenced the decision not to seek
medical attention – this recorded a preference of the
family that their loved one should not be admitted to
hospital and not resuscitated.
Coroner’s case
The sister was aware of the ACP but did not
understand it to be a direction to staff not to admit
her brother to hospital in any circumstances. It was
simply recording a preference for him to be cared for
in the care home.
The coroner was concerned about a lack of
understanding on the part of the nursing staff about
the MCA.
The coroner concluded there had been a gross
failure of basic nursing care.
Some challenges
Embedding the MCA framework across all settings – role for
CQC but also local authorities and Clinical Commissioning
Groups;
Training for GPs and doctors in acute hospitals about the
MCA;
End of life care – ensuring that providers act lawfully particular difficulties arise in the context of DNAR decisionmaking and End of life care ; and
More broadly, entitlement to treatment for the elderly
CQC Fundamental Standards
Due to be introduced from October 2014
Out for consultation at the moment until 4 April
(available on the Department of Health website)
Most of these will be directly prosecutable including
those linked to MCA compliance – person-centred
care and need for consent
This means CQC will not have to serve a warning
notice first
Proposal for unlimited fines (not £50,000 per
offence)
Selected Resources
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Internal Policies and Procedures
MCA Codes of Practice
Office of the Public Guardian booklets
Social Care Institute for Excellence resources
National Council for Palliative Care booklets
CQC guidance
Contacts - Ridouts LLP
Neil Grant – Partner
020 7317 0347
neil@ridout-law.com
Paul Ridout – Partner
020 7317 0341
paul@ridout-law.com
www.ridout-law.com