Care inequality

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Glenys Thornton on the dire state of the government’s new mental capacity legislation

The House of Lords today continues to scrutinise the Committee stage of the Mental Capacity (Amendment) Bill – legislation that seeks to amend the Mental Capacity Act to replace a framework known as the Deprivation of Liberty safeguards (DoLs). A framework that impacts on those lacking the capacity to consent to caring arrangements, whether in hospital, a care home or another setting.

Three months on from Second Reading – with a summer parliamentary recess along the way – the government is now telling us that this Bill was a simple improvement based on the Law Commission’s work of two years and its draft Bill. Not so.

We have overcome the problem of producing amendments in the middle of a long recess for a Committee session on our first day back. We have also spent the past few weeks discussing concerns with dozens of stakeholders, who themselves have been struggling to be heard because of the government’s rush to get the Bill through the Lords. No doubt apprehensive about the serious and considered scrutiny it would face. 

Either way, a consensus is forming that the Bill as it stands is “not fit for purpose” – as one group of carers and residents in care homes, told us. The concerns that we expressed at Second Reading are now writ large. Moreover, the message from local government, health practitioners, social workers, charities and families is that the power that is to be given to care home managers to prepare cases for mental capacity assessment is dangerous – lacking both capacity and capability.

There are virtually no safeguards for the person being assessed, no guarantee that their family or people close to them will be involved, and no automatic right to have an advocate. Plus the care home manager will decide on their “best interests”. We know it takes years for a social worker to qualify to do mental capacity assessments. But the government are proposing managers will get half a day of “familiarisation”. No wonder, some care home groups are expressing an unwillingness to take on that task.

The check in the system is that local authorities (with whom the legal responsibility for deprivation of liberty sits) will conduct a tick box exercise on the assessment – without seeing the person concerned. One of two things are likely to happen at that point. As the body which could end up in costly legal proceedings, the council will return the forms demanding more evidence, potentially creating a bureaucratic delay. Or they will let the assessment through and some injustices will take place, followed inevitably by court cases.

Then there is also a potential conflict of interest in care homes, where full occupancy means financial sustainability. Why would they look for alternative solutions for someone who may or may not qualify in terms of their mental capacity? 

Among the many problems with the Bill are that fact that it contains nothing about ascertaining the wishes or feelings of the cared for person. The consultation about whether they need to be deprived of their liberty must put them at its heart. That means advocacy must be made available right from the start of the assessment. The legislation as it stands only allows access to an AMCP (approved mental capacity professional) if they object to the process. That is both inadequate and fails to recognise that some people will be unable to object. 

In the Bill’s current form, it falls short of Article 5 of the European Convention on Human Rights – regarding individual liberty and security. Indeed, what Ministers have yet to properly explain is why, when the Law Commission draft of the Bill did contain all the safeguards, the government has dropped them.

The many amendments that have been tabled to the Bill will attempt to test its many flaws. And there will be a push for enough time before Report stage to seek remedies and make the legislation serve the interests of our most vulnerable fellow citizens.

Baroness Glenys Thornton is Shadow Health Minister in the House of Lords. She tweets @glenysthornton 

Published 15th October 2018

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