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Mental capacity reforms are not fit for purpose, say social care groups

October 9, 2018

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. 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.

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.

“The care sector has huge concerns about the potential conflict of interest and the cost saving motives involved in the government’s proposals,” said Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG).

“The reforms seem entirely at odds with the ethos of care and services which focus on respecting the rights and choices of people using care services. The Government must go back to the drawing board and reconsider the Law Commission’s original model of reforming the laws designed to safeguard people who need support. People’s rights must be protected and we’re ready to work with government to get this legislation fit for purpose.”

Another aspect of the Bill which social care groups are worried about are the implications of transferring responsibility for dealing with the backlog of DoLS assessments from local authorities to care providers. Judy Downey, chair of the Relatives and Residents Association said it was 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,” said Ms Downey.

“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.”

Another major concern is that, according to the groups which have signed the paper, these proposals undermine the safeguards that protect people who lack capacity to make decisions about their care.

“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,” said Care England chief executive Professor Martin Green.

“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.”

  • The paper, A cross-sector representation of issues and concerns relating to the Mental Capacity (Amendment) Bill, is available at: https://www.vodg.org.uk/wp-content/uploads/20181008-LPS-cross-sector-briefing-with-logos-FINAL.pdf
Judy Downey

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