Government urged to collaborate with care sector – not oppose it – in reform of mental capacity laws

October 22, 2018

As peers prepare to scrutinise reforms to mental capacity legislation, care sector leaders are calling on government to listen, engage and work with them to protect human rights safeguards.

The Mental Capacity (Amendment) Bill, currently in the House of Lords and due to reach the next committee stage today, seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLs). It aims to change the legal safeguards for people who lack capacity to consent to their care or treatment and place more responsibility on the individual provider. This has raised questions surrounding conflicts of interest and impartiality.

Groups that represent the interests of people who use services, families and carers, independent and voluntary social care providers and others have made it clear that they all have serious concerns about the proposed changes.

Sector leaders agree that reform is necessary because the current system is under-resourced and unworkable. But concerns continue to mount over the government’s plans which they say will save local authorities £200 million or more each year without any evidence that this will be achieved. These proposals will dilute human rights safeguards for the most vulnerable including older and disabled people who will often lack the capacity to speak for themselves.

This renewed call to listen and consult with the sector comes as the Department of Health and Social Care formally declined to answer Freedom of Information Access (FoIA) requests outlining its engagement with the sector on the Bill. This decision has now been put to appeal.

At the earlier committee hearing ministerial lead Lord O’Shaughnessy (Parliamentary Under Secretary of State for Health) announced concessions to some aspects of the proposals. For example, campaigners have called for the new scheme to apply to 16 and 17 year olds and that the stigmatising term “unsound mind” should be replaced. It now seems likely that these amendments will be brought forward.

But key concerns remain and many within the social care sector have been quick to make it clear how they feel about what needs to be done.

Professor Martin Green, chief executive of Care England, said,

“This is the last chance saloon for the House of Lords to amend this poorly drafted Bill. We have particular concerns about shifting responsibilities onto care home managers when there is a clear conflict of interest. Peers have scrutinised the Bill in depth and many have expressed their concerns, but the government seems determined to rail road the Bill through Parliament to the detriment of those most vulnerable in society.”

Jan Burns, chair of the National Dignity Council, said,

“The National Dignity Council share the message expressed within the cross-sector statement for the government to collaborate with the social care sector not oppose it. We also share many of the concerns raised regarding the proposed Bill, specifically highlighting what appear to be, inequalities and impracticalities that could severely impact on people who use services and those who care for them. Dignity is about treating people with compassion, kindness, and respect – human rights are all at risk of erosion if the Bill stands as proposed.”

Erica Lockhart, co-chair of the Care Associations Alliance, said,

"Local care associations have joined with local authorities to state their dismay at the proposals. Both parties are clear that care managers cannot provide an impartial service, and that the inherent conflict of interest this places of providers must be removed for the new legislation to be workable."

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