Judy Downey, Chair and CEO of The Relatives & Residents Association, tells CHP worrying elements remain in the Mental Capacity (Amendment) Bill, despite some of the sector’s concerns being taken on board
The unexpected introduction of the Mental Capacity (Amendment) Bill in the Lords in July was greeted by an almost unprecedented chorus of disapproval. At first, the Department of Health and Social Care (DHSC) ploughed on regardless but eventually began to engage with sector representatives: a powerful coalition speaking out unequivocally and giving voice to those too often unheard in relation to their own liberty. We were all reinforcing the same arguments and focusing on the serious conflicts of interest, failure to consult and, generally, pleasing no one.
Eventually DHSC began to listen, the Bill has now been amended and the pivotal role formerly allotted to the home manager has been abandoned. However, some worrying aspects of the original Bill still remain and there are still many features which continue to render it unfit for purpose. The amendments have stopped it falling apart completely but it is in a patched state and even with the current proposed amendments, still feels uncomfortable.
Over 40 organisations are now calling for an urgent pause in the Bill pending further consultation with families, practitioners and vulnerable people. It also calls for a draft code, an Equality Impact Assessment and an updated resources impact assessment to be published, and that the imminent review of the Mental Health Act should be taken into consideration before moving forward.
Major worrying gaps and assumptions remain. For example, despite the fact that DHSC placed huge emphasis on the need to reduce the massive backlog of those waiting for assessment, it is now moving the burden back to local authorities. But who will pay and how is independence to be assured with reduced revenues and current price pressures on local authorities to place people quickly and to avoid fines over hospital stays?
The numbers will surely increase due to the proposals to extend the remit of the legislation to those in supported living settings and receiving home care. There is still no mention of resources and no updated impact assessment following the original one, which estimated the changes would have no cost implications, which is hard to believe.
Access to justice remains vague and weak, as does the provision of advocacy. There is still no requirement to inform the person of their detention and the right to appeal or clear right of access for families to the essential documentation. There is no guarantee that there will be independent Approved Mental Capacity Professional (AMCP) involvement where the person makes no objection, including cases where the person’s family are concerned. This is a crucial omission due to the preponderance of cases where the individual is not overtly objecting but those closest to them are aware of their feelings, their unhappiness and the consequent negative effects of their placement on them. It must be explicit on the face of the Bill that this kind of assumption must be avoided. It was just this kind of case which prompted the original deprivation of liberty safeguards legislation. The person’s individual wishes and feelings i.e. their best interests, must be explored in depth by those with relevant accredited professional qualifications without any vested interests.
The Bill needs to enable restrictions of liberty to be fully considered before they are irrecoverable. Otherwise vulnerable individuals will continue to lose their tenancies and their liberty and then have little alternative. It matters that they receive the precious safeguards and rights they deserve in a properly funded and resourced system.