Care leaders have urged the Government to urgently rethink its Mental Capacity (Amendment) Bill as it enters a crucial stage in Parliament.
The leaders have outlined concerns about the legislation that aims to provide legal safeguards under the European Convention on Human Rights and replaces the existing Deprivation of Liberty Safeguards (DoLS) with Liberty Protection Safeguards (LPS).
Professor Martin Green, chief executive of Care England, said: “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.
“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 leaders say the proposals undermine the safeguards that protect people who lack the capacity to make decisions about their care. They argue it introduces a conflict of interest for registered managers who would be responsible for carrying out assessments, leaving providers open to the allegation they are depriving people of their liberty to fill a vacancy.
The group is also uneasy about the reform’s focus on saving money, arguing it calls into question the motives for the legislation.
There are also concerns about the financial impact on care providers of fulfilling their LPS responsibility when the sector is under enormous strain.
Judy Downey, Chair of the Relatives and Residents Association, said: “It is 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.
“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.”
A Department of Health and Social Care spokesperson responded: “Our Mental Capacity (Amendment) Bill will introduce a new system to increase the protection of some of the most vulnerable people in society. This will reduce the number of people waiting for authorisations by simplifying the process and making it less cumbersome for people.
“Care homes will not be deciding authorisations – the bill ensures that authorisations for people to be deprived of their liberty in care homes are determined by responsible bodies such as local authorities or CCGs, who will carefully scrutinise applications made.”