The CQC published on 29.1.13 its third annual report upon the operation of the MHA 1983. It contains discussion and/or recommendations relating to matters MCA 2005 related, including:

  1. an expectation that change will be seen in certain areas of recurring concern in the care and treatment of people subject to the MHA 1983, including that:

"Clinical staff must be appropriately trained in assessing and recording whether the patient has mental capacity to make decisions and whether they consent to treatment. Ongoing dialogue with the patient is essential. This conversation or dialogue should consider what treatment a person prefers and also how a person would like to be treated in the future (advance planning)."

  1. a – disturbing – section in the chapter upon the use of ‘Coercion in practice’ relating to de facto detention (pp.34-35), highlighting both the scale of de facto detention of notionally voluntary patients and (allied to this) staff confusion about their legal status, an example being where:

"One member of staff described the patient as being ‘on’ a section 5 of the Mental Capacity Act. When the Commissioner explained that no-one can be ‘on’ a section 5 of the Mental Capacity Act, and that the powers of that act cannot, in any case, authorise deprivation of liberty or detention, the member of staff said that the patient was ‘sort of detained’. This demonstrates how potential confusion about the powers of the Mental Capacity Act can be increased through imprecise use of language to describe patients’ legal status."

  1. discussion (p.57) of the case of Sessay v (1) South London & Maudsley NHS (2) Met Police) [2011] EWHC 2617 (QB) [2012] 2 WLR 1071 and of confirmation therein that MCA powers cannot be used by the police as authority to transport patients to hospital-based places of safety where this amounts of a deprivation of liberty;
  2. a detailed discussion of the complex issues which arise around ascertaining a patient’s capacity to consent to treatment (pp. 69-71), including the following significant passage:

"The [MHA 1983] Code of Practice requires clinicians to assess patients’ capacity to consent to or refuse treatment at the points where such consent is discussed, and record these assessments in the patients’ notes. Some clinicians have questioned whether this conflicts with  the first principle of the Mental Capacity Act, which states that people should be assumed to have capacity. In CQC’s view, where a person is in the situation of requiring specialist inpatient mental health care under the powers of the Act, the assumption of capacity should be backed up by an evidenced record. The Mental Capacity Act Code of Practice also states that professionals should never express an opinion about a person’s capacity to make a decision without carrying out a proper examination and assessment.

An incorrect assumption that a patient subject to powers of the Mental Health Act has capacity to agree to treatment may deprive that patient of the statutory safeguard of a second opinion. In CQC’s examination of over 2,500 records in 2011/12, 42% did not indicate that a capacity assessment had taken place on admission, and 36% had no record of a capacity assessment at the end of the three-month period or at the last administration of medication

The levels of non-compliance with the Code of Practice consent to treatment guidelines have been an ongoing problem in mental health services from the introduction of the safeguards in the Mental Health Act, and have been featured in every report to Parliament by the monitoring bodies for that Act. In particular, many previous reports have noted poor practice in operating the safeguards and questioned the reality of consent apparently given by patients.

CQC continues to have concerns that not all services give sufficient regard to patients’ wishes, or attention to their capacity to make decisions."