In October 2010, Care Quality Commission (CQC) published Guidance for registered providers of care, treatment and support services (for example, care homes) on how the Mental Capacity Act 2005 (MCA 2005) affects the way they make decisions on behalf of adults who lack capacity to make decisions for themselves. (1)
CQC is the independent regulator of health and adult social care services in England. The Guidance is part guidance, part "soft" compliance, and should be read in conjunction with CQC's Essential Standards of Quality and Service (essential Standards), which provides for a series of compliance outcomes that have to be met. (2)
WHY DO IT?
Health and social care professionals who work with adults who lack or have reduced capacity are under a duty to have regard to the Code of Practice that accompanies the MCA 2005 (MCA Code). It is vital that staff comply with it as a failure to do so can be used as evidence in civil or criminal proceedings before a court of tribunal.
In fact, very recently, a public authority was ordered to pick up a substantial bill for legal costs for failing to ensure that its own staff were aware of their obligations under the Act. (3)
The Guidance has a series of outcomes (a different set of outcomes to those described in the Essential Standards, of which more below). Among these are that people who use registered care, treatment and support services will be encouraged to make their own decisions wherever possible (and if not possible, will be included in best interests decision making); services and their staff are aware of their duties and responsibilities under the Act and that human rights will be respected.
There is a strong theme of compliance in the Guidance and, in this sense, puts the guidance contained in the MCA Code on a strong practical footing. It tells registered providers what they need to make sure they are doing, and what evidence CQC can ask for to make sure that providers are complying with those obligations.
To illustrate this, the Guidance describes the process for assessing an adult's capacity to make a particular decision at the time it needs to be made, but then goes on to state that services need to:
* have a copy of the MCA Code available for staff to use;
* make sure that staff induction includes learning about how the MCA Code and the Deprivation of Liberty Code of Practice (DoLS Code) affect their work; and
* make sure that assessments of capacity using the two stage test are being properly recorded.
In some way, CQC Guidance goes further than the MCA Code. …