Sylvia Rushbrooke

Dear Department of Health,

Please can you advise who or what enforces the MCA 2005?

Who or which department is responsible for implementing, ensuring compliance and monitoring compliance in LAs?
CCGs?
GPs surgeries?
and care homes?

Can you supply the last 5 circulars from the DH sent to CCG LAs etc re compliance of MCA 2005? implementation of the MCA 2005 ? and monitoring quality assurance of compliance of the MCA?

Does the LGO have to have regard to the MCA 2005 in its deliberations re complaints of non compliance by LAs who ignore the MCA 2005?

Yours faithfully,

Sylvia Rushbrooke

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6 Attachments

Dear Ms Rushbrooke,

Please find attached the Department's response to your recent FOI request.

Yours sincerely,

Alison Tingle
Freedom of Information Officer
Department of Health

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Our ref: DE-1037617  

 

Dear Ms Rushbrooke,
 
Thank you for your correspondence of 7 June to the Department of Health’s
Freedom of Information team about the Mental Capacity Act 2005 (MCA 2005).
 I have been asked to reply.

You asked for your email to be treated under the Freedom of Information
(FOI) Act.  However, as most of your email asked for general information
rather than requesting recorded information, the Department of Health has
not considered that part of your correspondence under the provisions of
the FOI Act.  My colleague Alison Tingle replied to you directly on 21
June about your question that is covered by FOI (our ref: FOI-1036714).

 

With regard to who or what governs the MCA 2005, the Act came fully into
force on 1 October 2007.  It is designed to provide a legal basis for
providing care and treatment for people aged 16 and over, who lack the
mental capacity to give their consent.

 

The Ministry of Justice has overall responsibility for the Act but works
with the Department of Health on those aspects of the Act which relate
directly to the health and social care system.

 

Following a number of recommendations in the post-legislative scrutiny of
the Act by the House of Lords Select Committee published in March 2014,
both Departments agreed to jointly strengthen oversight of implementation
of the Act, recognising that a wide range of bodies all have a distinct
role to play in ensuring compliance with the law.  The Department of
Health has therefore jointly established:

 

* the Mental Capacity Implementation Group, that brings together the
main national level statutory partners; and

* the National Mental Capacity Forum, chaired by Baroness Finlay, that
focuses on supporting local level implementation of the Act –
information on the Forum is here:
[1]www.scie.org.uk/mca-directory/forum/index.asp.

 

Local authorities, clinical commissioning groups, care homes and GP
surgeries should all be implementing and ensuring compliance with the MCA
2005.  Support and guidance for them is provided by a number of bodies,
including NHS England and the Association of Directors of Adult Social
Services.  For example, NHS England’s National Mental Capacity Act and
Deprivation of Liberty Safeguards Sub Group supports providers and
commissioners to make sure the MCA 2005 is implemented.

 

The Care Quality Commission (CQC), as the regulator for health and care
providers, is responsible for inspecting care homes, hospitals and GP
surgeries.  The importance of working within the MCA 2005 is reflected in
the CQC’s inspections, which assess how well providers are using the Act
to promote and protect the rights of people using their services.  Under
the Act the CQC also has a duty to monitor the Deprivation of Liberty
Safeguards in all hospitals and care homes in England, and publishes a
report on this every year.

 

You may be interested to see the Department of Health’s update on
implementation of the MCA 2005, that was published in 2015.  The report –
Mental Capacity Act 2005 – Valuing every voice, respecting every right –
provides information on roles and responsibilities and a copy is attached
for your information.

 

The Local Government Ombudsman is an independent body and you may wish to
contact it directly about how it takes the MCA 2005 in to account in its
work.

 

I am sorry I can’t be more directly helpful.

 

Yours sincerely,
 
Mary Heaton
Ministerial Correspondence and Public Enquiries
Department of Health

29 June 2016

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Sylvia Rushbrooke

Dear Department of Health,

Many thanks for your response
However I still do not know who enforces the Act when authorities etc ignore and do not comply?

The LGO as an independant body as stated, are they exempt from compliance of the MCA Act that I believed was a National Act for compliance by all ?

What bodies etc are exempt from compliance of the Act?

Who should breaches of the Act be reported to at the DH? or should breaches of the Act be reported to another body? if so who would that be?

Yours faithfully,

Sylvia Rushbrooke

Do Not Reply, Department of Health and Social Care

Our ref: DE-1040913  

 

Dear Ms Rushbrooke,
 
Thank you for your further correspondence of 3 July about the Mental
Capacity Act 2005.  I have been asked to reply.

As previously explained, local authorities, care homes and local NHS
organisations should all ensure compliance with the Act.  It is important
that these organisations can be held to account if people believe they are
not doing so.  They are therefore required to have a formal complaints
process that people can use to raise concerns.

 

People who remain dissatisfied after raising a complaint with an NHS
organisation can ask the Health Service Ombudsman, who is independent of
the NHS and of Government, to review the case. 

 

People who remain dissatisfied after raising a complaint with a local
authority or a care home are entitled to ask the Local Government
Ombudsman, who can conduct independent investigations into complaints
about local authorities, to investigate. 

 

As you are aware, the Care Quality Commission (CQC) is the independent
regulator for health and care providers.  People can raise concerns about
a care home with it direct.  While the CQC does not have responsibility
for investigating and responding to complaints, it can use that
information as part of its assessment of whether a provider is meeting the
registration requirements.

I hope this reply is helpful.

Yours sincerely,
 
Bill Wright
Ministerial Correspondence and Public Enquiries
Department of Health

 

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Sylvia Rushbrooke

Dear Department of Health,
Many thanks
So there is no enforcement other than service users having to use the complaints process that is self policing and in itself often non complaint suffering the same issues as the authorities themselves who have not complied

You state;
As previously explained, local authorities, care homes and local NHS
organisations should all ensure compliance with the Act.

Please advise how they are supposed to ensure compliance ie compliance officers? MCA leads? - who within the authorities or what department is responsible for ensuring compliance?

you state;
It is important that these organisations can be held to account if people believe they are
not doing so. They are therefore required to have a formal complaints
process that people can use to raise concerns.

If service users are forced to make complaints re non compliance of the MCA 2005 then it is clear the authority being complained of at that point does not intend to comply and their interpretation of the Act often to their advantage not the service user who lacks capacity and cannot complain and no best interest recorded rationale is documented as is obligatory as per DH circular 2008 - why should service users be expected to make complaints re non compliance of a government Act that already has a legal framework to be complied with? as laid down - that is not our responsibility as service users to try and enforce a governement Act and time is of the essence when dealing with the elderly having their rights ignored - it seems no one is interested in compliance on the ground including MCA leads for authorities

Yours faithfully,

Sylvia Rushbrooke

Do Not Reply, Department of Health and Social Care

Our ref: DE-1042051  

 

Dear Ms Rushbrooke,
 
Thank you for your further correspondence of 13 July about the Mental
Capacity Act 2005.  I have been asked to reply.

I appreciate your comments about the NHS complaints procedure and about
non-compliance among service providers. 

 

The role of the Department of Health and its ministers is to put in place
a strategic framework for the NHS to work within and provide overall
health service funding.  The Secretary of State for Health has ultimate
responsibility for ensuring the whole system works together to respond to
the priorities of communities and meet the needs of patients. He is
accountable to Parliament for the provision of the health service in
England, but he is not responsible for intervening in local or individual
cases.

 

The Health and Social Care Act was introduced in 2012 and was designed to
create a more independent, patient-centred NHS.  NHS organisations operate
independently of the Government and are autonomous in their
decision-making. 

 

The Department and its ministers believe that health services are best
delivered locally, by clinicians working with GPs and patients to provide
the highest quality services for local people.  Therefore, in line with
the Government’s commitment to devolve power to communities, decisions
about NHS services are essentially a matter for the NHS locally, and it
would be inappropriate for the Government to intervene. 

 

NHS organisations are therefore held to account by their users, through
the statutory complaints procedure, and by independent regulators such as
the Care Quality Commission, NHS Improvement, and the Medicines and
Healthcare Products Regulatory Agency.

 

New and existing health and care regulators are responsible for
safeguarding the interests of patients and the wider public.  Most health
and social care professionals are registered with one or more of these
independent professional regulators, which help protect the public by
ensuring that professional standards are met and that service providers
adhere to appropriate regulations and legislation.

 

I hope this reply is helpful.

Yours sincerely,
 
Larissa Georghiou
Ministerial Correspondence and Public Enquiries
Department of Health

 

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D. Speers left an annotation ()

If as you state ' Therefore, in line with
the Government’s commitment to devolve power to communities, decisions
about NHS services are essentially a matter for the NHS locally, and it
would be inappropriate for the Government to intervene. '

1) Please advise ;what exactly is the Minister for Health's role in the Health service?
2) Also please advise is your comment;he 'CQC also has a duty to monitor the Deprivation of Liberty
Safeguards in all hospitals and care homes in England, and publishes a report on this every year.' confirmation that CQC inherited the Mental Health Act Commission remit of 'safeguarding the rights of detained patients' ?Please advise is compliance is poor in many areas How does CQC ensure safeguarding?

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