CQC, 'University Hospitals Birmingham NHS Foundation Trust pays fixed penalties of £8,000 for failures around consent' (7/10/22)
Trust fined (1) The Trust had failed, in relation to a patient's medical treatment, to comply with Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (requiring consent or MCA 2005 compliance) by: (a) not attempting to arrange a BSL interpreter, involve family members, or consult with a Lasting Power of Attorney; (b) failing to carry out a sufficient capacity assessment; (c) failing to record any details of the best interests decision-making process. (2) There were also generic failings within the Trust in relation to the consent particularly when linked to mental capacity.
Text of press release
The Care Quality Commission (CQC) has issued two fixed penalty notices to University Hospitals Birmingham NHS Foundation Trust totalling £8,000 for failing to seek consent to care and treatment of someone in their care.
A 55-year-old gentleman (who we will refer to as AB), who had diagnoses of epilepsy and autism was admitted to Good Hope Hospital in Birmingham on six occasions between 12 May 2019 and 6 October 2019. AB had also been deaf since birth and communicated via British Sign Language (BSL) and lip reading.
These fixed penalty notices relate to the trust’s care and treatment of AB at Good Hope Hospital in relation to three medical procedures, which occurred in September, October and November 2019.
CQC found that on these three occasions, the trust did not comply with Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, requiring registered persons to obtain the consent of the relevant person when providing care and treatment to them. Regulation 11 also states if someone is 16 or over and is unable to give consent because they lack capacity, the registered person must act in accordance with the Mental Capacity Act 2005.
The three procedures where CQC found consent failures, were feeding tubes, aimed at providing nutritional support to AB, who was struggling with food.
CQC’s investigation found the trust had made no attempts to arrange a BSL interpreter for AB, involve his family members, or consult with his Lasting Power of Attorney when seeking consent for two of the procedures. In relation to the third procedure, the same applied, but contact was made with the Lasting Power of Attorney. CQC’s investigation found it was decided that AB lacked capacity for these three procedures, without a sufficient assessment of his mental capacity being carried out. CQC also found that in each case, no details were recorded as to how a best interest’s decision was arrived at.
CQC found failings by the trust in relation to the issue of consent, particularly when linked to mental capacity. These failings were in relation to the completion of training, and the conducting of oversight, audits and monitoring. The investigation found there were also failures in relation to the trust’s documentation around capacity assessments.
These issues of consent came to CQC’s attention through their routine review of reported serious incidents. The trust had reported it as a serious incident and provided more information when requested following their internal review.
During this investigation and via ongoing engagement with the trust, CQC looked at trust-wide policies to ensure other people using the trust’s services wouldn’t encounter the same problem. CQC were satisfied that the trust had training and policies in place as long as they were followed.
Bernadette Hanney, CQC Head of Hospital Inspection, said:
“Although this gentleman had complex health needs, he wasn’t given the opportunity to make decisions about his own care, every time, in the way that everyone should be able to expect. The trust assumed he didn’t have the capacity to make decisions or be consulted on consent to three of his medical treatments.
“The trust should have made much more effort to communicate with him in a way that he understood, every time, such as via a British sign language interpreter, or via a familiar face such as his family or power of attorney who he could lip read.
“For the failures to obtain consent we have issued fines to the trust of £8,000 which they have paid. We’re also aware that CQC’s focus on this, has already led to the trust making improvements in the processes that all staff should follow.
“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.”
CQC are fully committed to reducing inequalities in healthcare, particularly around those with protected characteristics. CQC have recently encouraged those who are deaf or hard of hearing to share their experiences of health and social care via a campaign, to help CQC monitor how services are meeting their needs. People can find out more about the campaign, and submit experiences on the CQC website.
The trust’s fixed penalty notices will remain on their provider page on the CQC website for three months following the issue date on 22 August 2022.
Text of notice on provider page
On 22 August 2022 CQC served two fixed penalty notices to University Hospitals Birmingham NHS Foundation Trust, Mindelsohn Way, Birmingham, B15 2GW totalling £8000.00, by way of criminal enforcement action for failures in respect of ensuring care and treatment is only provided with consent of the relevant person. The trust failed to ensure that where a person was aged 16 or over and unable to give consent because they lacked capacity to do so, that they acted in accordance with the Mental Capacity Act (2005) which is also required in accordance with Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the Regulations’). The regulated activity which the fixed penalty notice was issued for was in relation to treatment of disease, disorder or injury
There were three identified failures, two of which related to the same procedure where consent was required. In all three incidents, we failed to receive evidence of a sufficient Mental Capacity Assessment being undertaken. We failed to receive evidence that a British Sign Language interpreter was sought, or family members and the Lasting Power of Attorney spoken with when seeking consent for these procedures (with the exception of the third procedure, where the Lasting Power of Attorney was contacted) and we failed to receive evidence of suitably completed consent forms. CQC found failings by the trust in relation to the issue of consent, particularly when linked to mental capacity. These failings were in relation to the completion of training, and the conducting of oversight, audits and monitoring. The investigation found there were also failures in relation to the trust’s documentation around capacity assessments.