Birmingham NHS Trust fined over failure to obtain consent to treat Deaf patient

University Hospitals Birmingham (UHB) NHS Foundation Trust has had to pay £8,000 in fines after they failed to obtain consent to care and treat a Deaf patient.

The 55-year-old British Sign Language (BSL) signer, who was also autistic and epileptic, was admitted to Birmingham’s Good Hope Hospital six times between May and October 2019.

In September, October and November that year, the patient underwent three medical procedures involving feeding tubes – with the healthcare watchdog the Care Quality Commission (CQC) handing two fixed penalty notices over these three operations.

As part of their investigation, the CQC found UHB “made no attempts” to arrange a BSL interpreter when seeking consent for the three procedures, and had breached health regulations.

They also failed to involve his family members when it came to seeking consent, they said.

Under 2014 legislation, registered healthcare professionals have to obtain consent from the “relevant person” before providing them with care and treatment.

If a patient over the age of 16 is unable to do so because they lack the capacity, the Mental Capacity Act 2005 states decisions about their healthcare must be in their “best interests”.

In each of the three cases, no details were recorded about how a decision in the patient’s “best interests” was reached.

Meanwhile, for two of the procedures, the CQC discovered the NHS Trust failed to consult with the gentleman’s Lasting Power of Attorney – an individual legally authorised to make decisions on another person’s behalf relating to their welfare.

Failures were also identified over “the completion of training”, oversight, audits and monitoring, as well as the trust’s documentation around assessing capacity.

Bernadette Hanney, CQC’s head of hospital inspections, 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 lipread.

“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.”

Responding to a request for comment, a UBH spokesperson provided The Limping Chicken with a statement in which they said the Trust’s thoughts “remain with this gentleman’s family” during “what must continue to be a very difficult time for them”.

The statement continues: “Following his death in 2020, the care and treatment that he received at our hospitals, during 2019 and 2020, was carefully examined. The Trust proactively raised the case with the CQC and we have fully cooperated with their subsequent investigation.

“We have accepted the Fixed Penalty Notices, and accept that there were specific failings in the process of obtaining appropriate consent, which we have learnt from.

“However, we are assured that the relevant procedures were clinically appropriate in the circumstances and this failure to obtain correct consent did not impact on his care, or ultimately his death.

“The gentleman’s family has not raised any concerns with us about the clinical care and treatment provided to him by our staff.”

Details of the fixed penalty notices will remain on the Trust’s CQC profile until 22 November, three months after the fines were first issued.

By Liam O’Dell. Liam is an award-winning Deaf freelance journalist and campaigner from Bedfordshire. He can be found talking about disability, theatre, politics and more on Twitter and on his website.