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Mental Capacity still not well understood

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Weighing up a tough decision: Man sat thinking on sofa

There are several key organisations that exist to protect people’s rights with regards to the Mental Capacity Act and its application. These include the Care Quality Commission (CQC), Office of the Public Guardian (OPG) and Court of Protection (COP). However, while each of these bodies has an important role to play, we should remember that it is every person’s responsibility to raise a concern if a suspected breach of the Act has taken place.

Updates from the CQC

The CQC publishes regular reports on its activities with a view to sharing lessons learnt and updating guidance. For example, in May 2022, the CQC published an update looking at Regulation 11, which states that consent must be given before any care or treatment can be provided.

Meanwhile, in a report released in January of this year, the CQC shared a case from the previous summer, where a 55 year old man with autism had experienced a breach of the MCA concerning treatment. This included insufficient assessment of capacity to consent, or to consult his assigned Lasting Power of Attorney (LPA). On investigation, it was found that the Trust had failed to properly document Mental Capacity Assessments. It also had several other related failings in terms of staff training and monitoring.

This is by no means the first time that an organisation has been found to fail in its responsibilities under the Mental Capacity Act or Mental Health Act. Even in the last year there have been numerous cases documented by the CQC including Dorset, Devon and London, among others.

MCA still not well understood

Way back in 2013, the CQC published a report claiming that the Mental Capacity Act was ‘not well understood’. Almost a decade later and it seems that there has been little progress and this is still very much the case.

What is perhaps a little concerning for us as health and care professionals is that there is soon to be a major shirt and expansion of the Act with the launch of the new Code of Practice, which will introduce the new Liberty Protection Safeguards.

According to the latest draft and consultation, the Court of Protection will have a much more focused role to deal with challenges and complex cases. This should hopefully remove some of the strain of Community Deprivation of Liberty Orders from their responsibilities. There will also be an expansion of monitoring powers to include the Office for Standards in Education, Children’s Services and Skills (OFSTED).

To find out more about the Mental Capacity Act, and the forthcoming changes with the new Code of Practice, please get in touch. We offer a range of training packages to support understanding around the Mental Capacity Act and how it applies in practice. We can also support you with bespoke consultancy services, as well as Mental Capacity Assessments for complex cases.

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