9th October 2018

Press Release - Mental Capacity Reforms

Alongside colleagues from leading social care interest groups National Care Association is concerned that mental capacity reforms are not fit for purpose

National Care Association is 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 (including National Care Association) 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).

National Care Association 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.

Nadra Ahmed OBE, Executive Chairman of National Care Association said

“the MCA was a crucial piece of legislation which was designed to ensure that the needs of service users in our care were safeguarded and reviewed. The challenge has been that that the implementation was not appropriately funded and so providers are often put into untenable positions when local authorities are unable to respond timely to requests.

With this in mind we have supported a review, but what has been laid before us is a shift of responsibility which adds an additional burden on an already stretched service manager and the potential of a challengeable conflict of interest.

With a substantial backlog with applications currently sitting with LA’s it is not reasonable to expect the sector to bail them out when providers themselves are facing financial challenges based on an unsustainable underfund for care.

We believe it is important to take a pause in the passage of the bill and consider how we can collectively reach a sustainable position in the best interest of the service users”

END

For further information please contact Nadra Ahmed on 01634 716615 press@nationalcareassociation.org.uk

Notes for editors

The paper, A cross-sector representation of issues and concerns relating to the Mental Capacity (Amendment) Bill, is available here.

The briefing is published by the following organisations:

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