CQC sharpens focus on provider compliance with Mental Capacity Act in regulation overhaul

The Care Quality Commission has sharpened its focus on providers’ compliance with the Mental Capacity Act 2005 as part of its overhaul of adult social care regulation outlined today.

In every inspection, care homes and community-based providers will be quizzed on whether consent to care and treatment is always sought in line with legislation and guidance, the CQC said today as it issued handbooks to providers on its new regulatory approach.

This is one of 16 mandatory key lines of enquiry (KLOE) that CQC inspectors will probe providers during inspections, to inform decisions on whether they should be rated ‘outstanding’, ‘good’, ‘requires improvement’ or ‘inadequate’ under the new ratings system.

This marks a strengthened approach to monitoring compliance with the MCA from that set out in a consultation on the new system published in April, where there was no specific, mandatory KLOE on consent to care, with MCA issues covered separately in other KLOEs.

In its response to the consultation, the CQC said the shift meant the MCA and consent to care issues were receiving the “right level of focus”.

To assess providers’ compliance with the KLOE on consent to care, inspectors are being asked to probe whether:

• staff understand the relevant requirements of the MCA and, where appropriate, other relevant legislation, case law and guidance;
• staff make best interests decisions in line with legislation when service users lack the capacity to make them;
• use of restraint of people who lack the capacity to consent to care is clearly monitored and in line with legislation, and action is being taken to minimise its use;
• staff understand the difference between lawful and unlawful restraint practices.

Inspectors, who now specialise in adult social care rather than work across services, will base their judgement about the effectiveness of a service on its performance against the consent KLOE. Besides effectiveness, services will also be judged against four other key question – whether they are safe, well-led, responsive and caring – and performance against each will contribute to their overall rating.

The regulator has issued separate handbooks for providers of residential and community care services, in relation to the inspection framework that came into force on 1 October.

Chief inspector of adult social care Andrea Sutcliffe said the handbooks were about making real her ‘mum test’ – the idea that inspectors should assess any service on the basis of whether it was good enough for their own family.

She said: “On their visits, I will ask our inspection teams to consider whether these are services that they would be happy for someone they love and care for to use. If they are, then we will celebrate this through our ratings. If they are not, we will take tough action so that improvements are made.”

The handbooks also include information on the CQC’s new intelligent monitoring tool, which uses a series of indicators to identify risks to service users and will determine when the regulator inspects services. Indicators include concerns expressed by staff, an increased number of death notifications and frequent changes of registered manager. Where these are reported, they will be followed up as part of the inspection process.

Care and support minister Norman Lamb,welcomed the new guidance: “This marks a turning point for the way we care for people in this country. Gone is the tick-box exercise for inspecting care homes and home care – now we are listening to the views of the people who rely on these services and have tougher checks to make sure they are getting safe, compassionate care from staff who are supported by good managers.”

Des Kelly, executive director of voluntary sector provider body the National Care Forum, added: “The publication of provider handbooks by CQC is an important step in changing the way in which adult social care services in England are inspected, assessed and rated.”