Groups claim mental capacity reforms ‘not fit for purpose’

Representative bodies have expressed concerns regarding responsibilities care home managers will be under from proposals set out in the Government’s Mental Capacity (Amendment) Bill.

The legislation, which aims to better protect vulnerable people and ease the burden on local authorities, involves streamlining Deprivation of Liberty Safeguards (DoLS) to help reassure families as well as save councils an estimated £200m a year.

The bill comes on the back of a Law Commission review that highlighted problems with DoLS and proposed they be ‘replaced as a matter of pressing urgency’.

Despite backing the Government’s intention to review legislation and accepting DoLS needs replacing, pressure groups have expressed concerns with elements of the bill, which reached committee stage at the House of Lords last week.

Whilst registered care providers are required to assess individuals to determine that they can meet the person’s needs and undertake care planning, they are not required to assess to protect people’s liberty.

Under proposals care home managers will be responsible for these assessments when that person lives in a care home.

Association of Directors of Adult Social Services (ADASS) said planning care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are different things. It argues this to be a new activity, requiring new skills and resources.

Glen Garrod (pictured), ADASS president has ‘serious concerns’ about the bill. ‘It is essential these issues are fully understood and that the implications are clear for local authorities as both commissioner and responsible body under this bill.

‘What is of critical importance however is that the system that replaces DoLS has to be an improvement on its predecessor, not least for the sake of those who need it to safeguard and protect their human rights.’

Care England and the Care Provider Alliance said while DoLS arrangements were ‘unwieldy and should be replaced’ the proposed legislation was concerning.

Describing the bill as ‘not fit for purpose’, Professor Martin Green, Care England chief executive, said: ‘If we are agreed in the final outcome, namely protecting the vulnerable, then the Government must draw on the expertise contained in the Law Commission’s extensive report and start again with due consideration to all parties involved in protecting those in need backed up by proper consultation and impact assessments.’

The bill, which already has more than 90 amendments from peers, has also been questioned by the Voluntary Organisations Disability Group.

Its chief executive Dr Rhidian Hughes described the bill as ‘ill-conceived and flawed’. He said: ‘The way the bill has been handled suggests that the goal is saving money, rather than a thoughtful process that prioritises people’s best interests. In its current form, the bill is not fit for purpose. It requires substantial changes to ensure we have a civilised and effective way of taking life-changing decisions with and for people who need the most support.’

A Department of Health and Social Care spokesperson said: ‘The Mental Capacity (Amendment) Bill introduces a new system that will increase the protection of some of the most vulnerable people in society.

‘We have engaged widely with a range of stakeholders, including social care providers, and will continue to do so ahead of implementation of the new system.’