Leaders react to mental capacity proposals

November 5, 2018

Ministers must eliminate the conflict of interest within the ‘troubled’ mental capacity proposals, according to leaders in the social care sector.

The Government’s mental capacity proposals, set out in the Mental Capacity (Amendment) Bill, continues to attract criticism because of the conflict of interest embedded within some of the principles of the draft legislation.

Sector leaders have already set out their position that those managers with a controlling interest over care and support businesses should not be in charge of processes and decisions to deprive people of their liberty.

There is no question that reform is much needed and a properly constructed Bill would be a welcome development. Sector leaders have urged the Government to collaborate with the sector to get the principles within the legislation right and fit for purpose.

In the latest development, further concerns about the Bill have been raised, this time by the Joint Select Committee. The objectivity of deprivation of liberty processes, under the Government’s proposals, have again been called into question.

Judy Downey, Chair of the Relatives & Residents Association said, 'The Joint Committee on Human Rights has joined the chorus of disapproval about this Bill. It has highlighted the fact that the Bill does not meet the requirements of the European Convention on Human Rights. Let’s hope that the Government takes notice and urgently redrafts the Bill accordingly.'

The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3rd July 2018. Sector leaders welcomed the very first discussion with senior officials and Ministers on 25th October 2018 – a meeting that was held with provider, commissioner and charity representatives.

Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said, 'We are pleased that Government is now meaningfully beginning to engage with the sector. We still have a number of concerns about the Bill, a significant one being the conflict of interest issues. We see the conflict of interest as a threat to good care for individuals which risks placing providers in an unfair position where their integrity could be questioned because of a badly thought through Bill.'

Care providers recognise the need for reform but emphasise that this Bill must not be rushed through Parliament without the current weaknesses within it being completely resolved.

Professor Martin Green OBE, Chief Executive of Care England, said, 'We want to work jointly with the DHSC and Ministers and we welcome the interest shown by them at our meeting last week. We hope the many detailed items which were discussed have been captured by officials and will now be actioned in terms of government amendments to the Bill.'

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