Last summer the CQC was provided with new powers to regulate providers around the best interests’ provisions of the Mental Capacity Act 2005. Regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 concerns consent of service users. Before 18 June 2012, the regulation required services to have arrangements in place to obtain consent from service users and act in accordance with that consent. That provision, however, ignored the fact that consent is only relevant to those who have capacity to give it. For those without capacity, others must make decisions on their behalf in their (the service user’s) best interests in accordance with the Mental Capacity Act 2005 and taking into account the Code of Practice.
Regulation 18 now requires that in relation to the care and treatment provided for the service users who lack capacity and do not have someone who can lawfully make a decision for them (i.e. a donee of a Lasting Power of Attorney, a deputy appointed by the Court of Protection or the Court itself), the registered person must have suitable arrangements in place for establishing, and acting in accordance with, the best interests of the service user.
The regulation then goes on to provide that Section 4 of the Mental Capacity Act 2005 (the section that deals with best interests) applies for the purposes of the regulation. In other words, CQC can enforce the best interests’ provisions of the Mental Capacity Act in respect of services that it regulates.
CQC now has its own expert inspectors trained in Mental Capacity who are challenging providers during inspections to demonstrate compliance with the Mental Capacity law. It is therefore essential that all staff understand the fundamental principles and can apply them in practice.
As with any area of compliance, providers must be able to produce evidence to demonstrate compliance. Where there is uncertainty about capacity, suitably qualified staff should carry out mental capacity assessments. The assessments should specify any issues that the service user does not have capacity to decide and note whether anyone else has power to make those decisions on their behalf. The assessments should be reviewed at regular intervals or where circumstances change.
As regards best interests, which is the area of Mental Capacity law that regulation 18 expressly incorporated into the CQC regulatory regime, managers and staff must understand what ‘best interests’ means and how to decide what is in the best interests of service users, including who to consult when reaching that judgment. Staff should be aware of the Mental Capacity Act Code of Practice and should consult it where appropriate. Providers should be able to evidence that appropriate training is provided around this area, and that the effectiveness of training is assessed when staff have supervision sessions with managers.
Mental capacity is likely to become an increasing focus of attention for CQC because it goes to the heart of empowering service users and ensuring that they are at the heart of service provision. The underlying principles are commendable and simple, and there is little excuse for providers to ignore them. Occasionally, quite difficult cases may arise and providers should ensure they seek legal help promptly so that the issues can be quickly resolved before they are queried by inspectors.