The Care Quality Commission (CQC) issued two fixed penalties to University Hospitals Birmingham NHS Foundation Trust totalling £8,000 for failing to seek consent to care and treatment of a patient who was admitted to Good Hope Hospital on six occasions between May and October 2019.

The patient, a 55-year-old man referred to as AB, had a diagnosis of epilepsy and autism. AB was also deaf and communicated using British Sign Language (BSL).

The CQC found that in relation to three medical procedures AB received, the Trust did not comply with Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires registered persons to gain consent from the relevant person when providing care and treatment to them. The Regulation also states that where a person over 16 lacks mental capacity and is unable to provide consent, the registered person must act in accordance with the Mental Capacity Act 2005.

Further issues identified by the CQC were:

• Failures in relation to the completion of training, auditing and monitoring around issues of consent and mental capacity assessments.
• Failure to arrange a BSL interpreter for AB and to consult his family members, or persons with his Lasting Power of Attorney in relation to two procedures.
• Failure to document how AB’s best interests decisions were arrived at.

This case demonstrates the importance of health and social care providers having robust procedures, processes and training in place regarding mental capacity and consent. It also demonstrates the importance of staff understanding how an individual communicates and empowering that individual to communicate. We anticipate that the introduction of the Oliver McGowan Mandatory Training on Learning Disability and Autism will assist in preventing instances like those in this case from occurring in the future.

The Mental Capacity Act 2005 has been in place for a number of years and we are still seeing instances like this arise; so on reflection, the above case also emphasises the importance of providers commencing their preparation for the Liberty Protection Safeguards (LPS) which are expected to be introduced in early 2023. Organisations should begin to prepare now to ensure that the principles of the Mental Capacity (Amendment) Act 2019 are well understood by all members of staff and that the correct policies and procedures are in place to safeguard individuals from unlawful deprivation of their liberty. For a more in-depth view of the LPS, see our ebriefing on the Deprivation of Liberty Safeguards replacement.