CQC fines NHS trust for failing to seek consent to care and treatment

The CQC served two fixed penalty notices, totalling £8,000, on University Hospitals Birmingham NHS Foundation Trust for breaches of Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Regulation 11 requires registered persons to obtain the consent of the relevant person when providing care and treatment to them. For those individuals 16 or over and unable to give consent because they lack capacity, the registered person must act in accordance with the Mental Capacity Act 2005.

The fines followed the CQC’s finding that the Trust had fallen short of the requirements of Regulation 11 when providing care and treatment to a 55-year-old man, who we will refer to as Mr X. It found that the Trust had made assumptions about Mr X’s capacity and should have made “more effort to communicate" with Mr X when seeking his consent for treatment.

The case

Mr X, a deaf man with diagnoses of autism and epilepsy, was admitted to Good Hope Hospital in Birmingham on six occasions between 12 May 2019 and 6 October 2019. He communicated via British Sign Language (BSL) and lip reading.

On three occasions, in September, October, and November 2019, Mr X underwent treatments to fit feeding tubes, intended to provide him with nutritional support.

The CQC found that on each such occasion, the Trust had made decisions about Mr X’s capacity without sufficient assessment and had failed to secure Mr X’s consent prior to giving the treatments. They found that the Trust had made no attempts to arrange a BSL interpreter for Mr X or to involve his family members when obtaining consent for the procedures. On two of the three occasions, the CQC found that the Trust had not contacted Mr X’s Lasting Power of Attorney. On all three occasions, the CQC found that the Trust had not adequately recorded capacity assessments and best interests decisions.

The regulator also noted that, while the Trust had implemented policies and training to do with consent and capacity, it had not done enough to ensure ongoing internal compliance.

Commenting on the case, CQC Head of Hospital Inspection Bernadette Hanley said:

“I hope other trusts will learn from this, and ensure a high importance is placed on people’s communication needs being met. Organisations shouldn’t assume people lack capacity simply because their communication needs are different. Instead they should fully explore all options around people’s preferences to ensure equality every time.”

A renewed focus

These fines serve as a salutary reminder of the importance of getting consent right, particularly when linked to mental capacity.  While there have been numerous enforcement actions relating to Regulation 12 safe care and treatment, this case demonstrates CQC’s increased appetite to take criminal enforcement action in relation to a breach of Regulation 11. As such, it is reflective of the CQC’s renewed and explicit focus on addressing inequalities in healthcare, particularly around those with protected characteristics.

This blog was written with the support of Emily Wilkinson, trainee solicitor.

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