Lack of supervision on the Mental Capacity Act and Deprivation of Liberty Safeguards

The House of Lords committee on the Mental Capacity Act (MCA) have been warned by CQC, social workers and senior practitioners that more needs to be done to aid interpretation and implementation of the MCA and DoLS.

Speaking to the committee, the CQC revealed they had written to a number of local authorities raising concerns about their role as ‘supervisory bodies’ under the DoLS.  Currently, councils have the responsibility of considering applications from care homes or hospitals to deprive a person of their liberty on the basis of 6 assessments.

CQC Chief Executive, David Behan said “We do not have a responsibility for assessing the role of local authorities in commissioning decisions that are made.  As a regulator, our responsibilities are focused on the provision of care and the quality of that provision.  That said, this year we have written to local authorities if we feel our monitoring has exposed whether they have been carrying out their supervisory responsibilities in an appropriate way.  Where we have identified that we feel supervisory bodies have not been discharging those responsibilities, we have written to those authorities and asked them to review how they are taking forward those supervisory responsibilities.”

He went on to reveal that where concerns had been raised, CQC had conducted further inspections of care homes and hospitals in the relevant area to check whether the local authority concerned had made improvements.

Although CQC no longer inspect local authority adult social services functions, last year local authorities were invited to submit assessments of their work with regard to their MCA and DoLS monitoring practices.  CQC’s latest annual report states the success of their ability to scrutinise supervisory bodies would “depend to a significant extent on the willingness of local authorities to collaborate with CQC.”

Separate to CQC, social workers and senior practitioners have commented on the lack of information provision for the interpretation of legislation.  Lorraine Currie, a social worker and Shropshire council’s commissioner for the MCA and DoLS stated “We have not really had anywhere to look to answer the questions: what is the definitive interpretation of the legislation?; how do you actually want us to act in this situation; is it good to have lots of DoLS requests or is it actually bad to have a lot of DoLS requests…there is so much data, and yet we are missing that very central direction.”

These criticisms follow the removal of regional and national MCA leads from the Department of Health in 2011.  The removal of which has been criticised for being carried out too soon in response to government austerity cuts.  Since then no further guidance has been provided from central government on case law.  The government and directors of adults’ social services need to take a stronger practice lead on interpretation of the MCA and DoLs practice.

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