Posted by Sara Isenberg, Senior Associate
The right to decide: report on deprivations of liberty
The Local Government and Social Care Ombudsman’s review, ‘The Right to Decide: Towards a greater understanding of mental capacity and deprivation of liberty’‘ makes difficult reading. It brings into sharp focus the struggles faced by the industry in meeting its obligations relating to the Mental Capacity Act and in particular in respect of Deprivations of Liberty.
The Ombudsman confirmed that one in five social care complaints were about this area and importantly, more than two in three of those complaints were upheld.
Where can you improve to avoid complaints?
So, how can you avoid CQC findings showing you are acting in a non-compliant manner and where can you improve to avoid complaints?
As far as possible, capacity assessments should be carried out on prospective residents before any admission. This way, before a resident even joins a home, staff should have a fairly clear idea of the level of care which will be required, the circumstance in which the person is likely to live, and, importantly, whether the resident has the mental capacity to consent to his or her care arrangements.
If it is apparent at this early stage that the resident lacks the capacity to consent to arrangements and that the other five qualifying criteria the assessors would consider have been met, not least the best interests requirement, there should be no delay in applying for a standard authorisation from the Local Authority. Indeed, it may even be appropriate to consider self granting an Urgent Authorisation.
Best interest assessments
The Review also highlighted the regrettably all too common failure to correctly carry out best interest assessments, in particular failure to adequately involve families (and possibly close friends) in the best interest making decisions process.
So, again, to make sure your duties are fulfilled, you should be asking yourself: do you hold all relevant peoples contact details? Have they been consulted if and when a best interest decision has had to be made for a relative resident? Forging good relationships with families can be very helpful for both providers and families in ensuring the resident’s best interests are being met and that providers are satisfying their obligations under the Mental Capacity Act and Code of Practice.
We anticipate seeing a sharp rise in these issues being highlighted in CQC inspection reports which may lead to enforcement action being taken.
What to know more detail of the review?
The Local Government and Social Care Ombudsman’s review can be read in full here.
We have extensive experience assisting providers with the challenges presented by the ever-changing regulatory landscape. If you need advice on CQC registration, challenging CQC inspection reports or enforcement action, please contact our specialist Social Care team.
If you need further advice on meeting your responsibilities in respect of Deprivation of Liberty Safeguards or capacity assessments contact Sara Isenberg directly.
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