Social care interest groups warn that mental capacity reforms are not fit for purpose

October 9, 2018

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.

According to the Social Care Institute for Excellence (SCIE), about two million people in England and Wales lack the capacity to make decisions for themselves. Those people are cared for by around six million people, including a wide range of workers from the social care sector, from care home managers to domiciliary care workers. With the Bill in its current state, there is concern that those working with the best interests of those they care for are facing difficult conflicts of interest and high pressure decisions.

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 stigmatising term 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.”

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.”

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