Leading social care interest groups from across the care sector
are calling on the Government to urgently rethink its Mental
Capacity (Amendment) Bill that is now at a crucial
parliamentary stage.
Concerns about the legislation are outlined in a new paper ahead
of the House of Lords committee stage when it will be
scrutinised by peers. The paper reflects the views of a wide
range of organisations that represent people using support
services, their families, care provider organisations and
infrastructure bodies.
The Bill aims to provide
legal safeguards required under the European Convention
on Human Rights and will replace the existing Deprivation of
Liberty Safeguards (DoLS) with Liberty Protection Safeguards
(LPS). The aim is to reform the process for authorising
arrangements that enable people who lack capacity to be deprived
of their liberty so they can consent to care (an example of a
deprivation of liberty would be preventing someone from leaving a
care home of their own free will). The Bill will affect
the human rights of over 300,000 people in England and Wales
including those with dementia, learning disabilities and brain
injuries. Under the proposals, care managers would have now
responsibility for arranging these human rights assessments.
Changes to the existing, unwieldy system are necessary and the
sector has worked with the Law Commission in preparing its
independent report to the government ahead of the reforms. But
the government’s proposals fail to mirror the Law Commission
model – today’s paper calls on the Government to go back to
the recommendations of the Law Commission’s original review.
One major concern is that these proposals undermine the
safeguards that protect people who lack capacity to make
decisions about their care. The Bill introduces a
conflict of interest for registered managers who would be
responsible for carrying out assessments (providers may face
allegations they are depriving someone of their liberty to fill a
vacancy).
The group is also uneasy about the focus on
how reforms will save an
estimated £200m a year which calls into question
the motives for change. There are also fears about the
financial and practical impact of care providers fulfilling their
new LPS responsibility at a time when the sector is already
under enormous strain.
Other worrying aspects of the Bill include:
- the lack of focus on the views of the person being assessed –
people and their families are worried there is no requirement to
consider the person’s own wishes
- the implications of transferring responsibility for dealing
with the backlog of DoLS assessments from local authorities to
providers.
- confusion arising from the creation of three disparate
systems for managing the LPS, in care homes, community care
settings and hospitals.
- the lack of definition or acceptability of the term
‘unsoundness of mind’ – DoLS apply to people with a “mental
disorder” but LPS apply to people of “unsound mind” – there is no
definition of what this stigmatisingterm means.
Judy Downey, Chair of the Relatives and Residents Association
said:
“It is neither fair nor appropriate to give care home managers
these new responsibilities for vulnerable and often isolated
people. It requires them to be judge and jury about
decisions in which they themselves could be involved. Our
helpline hears too many stories of conflicts of interest within
families or with care homes, which benefit from the independent
professional oversight now provided by Best Interest
Assessors. Care home managers are already overburdened
with a range of ever-increasing responsibilities in what is a
demanding and challenging role.”
Dr Rhidian Hughes, VODG chief executive, said:
“The care sector has huge concerns about the potential conflict
of interest and the cost saving motives involved in the
government’s proposals. The reforms seem entirely at odds
with the ethos of care and services which focus on respecting the
rights and choices of people using care services. The government
must go back to the drawing board and reconsider the Law
Commission’s original model of reforming the laws designed to
safeguard people who need support. People’s rights must be
protected and we’re ready to work with government to get this
legislation fit for purpose.”
Professor Martin Green, chief executive of Care England, said:
“The Bill in its current form is simply unworkable and should it
be railroaded through Parliament there are real dangers that the
people that it seeks to protect will suffer a great injustice and
inadequate safeguards. The government needs to go back to
the first principles and align the Bill with the recommendations
of the Law Commission which itself conducted an extensive in
depth study of the situation.”
Notes for editors
The paper, A cross-sector representation of issues and
concerns relating to the Mental Capacity (Amendment) Bill,
is available here.
The following organisations are releasing the briefing:
Action on Elder Abuse
Association for Real Change
Association of Mental Health Providers
Associated Retirement Community Operators
Care England
Care Association Alliance
Care Provider Alliance
Learning Disability England
National Care Association
National Care Forum
National Dignity Council
Shared Lives Plus
Registered Nursing Home Association
Relatives & Residents Association
United Kingdom Homecare Association
Voluntary Organisations Disability Group
