Why should you read this?
When something goes wrong in health and social care, the people affected and staff often say, "I don't want this to happen to anyone else." These 'Learning from safety incidents' resources are designed to do just that. Each one briefly describes a critical issue - what happened, what CQC and the provider have done about it, and the steps you can take to avoid it happening in your service.
Regulation 11 requires that care and treatment of people using services must only be provided with the consent of the relevant person.
When a person is asked for their consent, information about the proposed care and treatment must be provided in a way that the person can understand.
The Mental Capacity Act explains how consent to care and treatment should be obtained. The Act provides the following principles:
- A person must be assumed to have capacity unless it is established that the person lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success.
Where a person is considered to lack the mental capacity to consent, Section 4(7) of the Mental Capacity Act states these people should be consulted (if it is practicable and appropriate to do so) about what would be in the person's best interests:
- anyone named by the person as someone to be consulted
- anyone caring for the person or interested in the person’s welfare
- anyone granted lasting power of attorney by the person
- any deputy appointed for the person by the court.
Enforcement by CQC
In August 2022, we issued an NHS trust with two fixed penalty notices for breaches of Regulation 11. The trust failed to sufficiently assess a patient’s capacity to consent or involve his family or lasting power of attorney before he was given treatment.
The patient was a 55-year-old autistic man who had been deaf since birth. He communicated using British Sign Language (BSL) and lip reading.
For two procedures, including an endoscopy, the trust failed to involve the patient’s family or consult his lasting power of attorney before the treatment took place. For a third procedure, the lasting power of attorney was consulted.
The trust had also not taken any steps to help the patient consent to this treatment, such as arranging a BSL interpreter.
For these failures to obtain consent we issued fixed penalty notices to the trust totalling £8,000.
What happened next?
In investigating this incident, we found that the failings by the trust in managing consent related to:
- staff not completing training
- carrying out oversight, audits and monitoring.
We also found failures in the trust’s documentation around capacity assessments.
During this investigation and ongoing engagement with the trust, we looked at trust-wide policies to ensure other people using the trust’s services wouldn’t have the same experience.
The trust implemented systems to improve how they support people and we were satisfied that the trust had training and policies in place, as long as they were followed.
What can you do to avoid this happening?
Organisations shouldn’t assume people lack capacity simply because their communication needs are different. Instead they should fully explore all options around people’s preferences.
The National Institute for Health and Care Excellence has produced guidance covering decision-making. It aims to:
- help health and social care practitioners support people to make their own decisions where they have the capacity to do so
- keep people who lack capacity at the centre of the decision-making process.
The Mental Capacity Act Code of Practice says what you must do when you act or make decisions on behalf of people who can’t act or make those decisions for themselves.
The Accessible Information Standard aims to make sure that health and care services give people who have a disability, impairment or sensory loss:
- information that they can access and understand
- any communication support that they need
We have recently published our report, ‘Who I am matters’. This highlights that people with a learning disability and autistic people are still not being given the quality of care and treatment they have a right to expect when they go to hospital.