The Care Quality Commission (CQC) has recently issued two fixed penalty notices to University Hospitals Birmingham NHS Foundation Trust totalling £8,000. Their investigation relates to the failure to seek consent to care for and treat a patient in their care.
The patient, a 55-year old man (referred to as AB) had a diagnosis of epilepsy and autism and was admitted to Good Hope Hospital in Birmingham on six separate occasions between May 2019 and October 2019. AB is also deaf since birth and communicated through British Sign Language (BSL) and lip reading.
The CQC investigated the trust’s care and treatment of AB in relation to three medical procedures. In their investigation the CQC found that the trust did not comply with Regulation 11 of the Health and Social Care Act 2008, which requires registered persons to obtain consent from the relevant person when providing care and treatment to them. The same regulation also states that if someone is 16 or over and is unable to give consent because they lack capacity, the registered person must act in accordance with the Mental Capacity Act 2005.
In their investigation, the CQC found that the trust had made no attempt to arrange for a BSL interpreter, involve the patient’s family, or consult with his Lasting Power of Attorney when seeking consent for two of the procedures. The CQC also found that AB lacked the capacity for all three procedures, without an assessment of his mental capacity being carried out. It also found that in each case, no details were recorded for how a best interest decision was arrived at.
This fine has put into the spotlight the importance of compliance with the Mental Capacity Act 2005. This includes ensuring that suitable consent being obtained, and a mental capacity assessment undertaken where there is any doubt or evidence that an individual concerned may lack capacity to make a decision that needs to be made (in this case, to decide to have the three medical procedures). The NHS Trust in this case had wrongly assumed that AB lacked capacity due to his complex needs or difficulties communicating. No one can be deemed to lack capacity to make a decision without a capacity assessment (to make that specific decision) being undertaken and properly recorded. It also highlights the importance of the presumption of capacity in 1(2) of the Mental Capacity Act 2005; “a person must be assumed to have capacity unless it is established that he lacks capacity”.
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