Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Andrew MacTaggart, Best interests assessor (MCAB07)


I am a qualified Best Interests Assessor working within the current Deprivation of Liberty Safeguards legal framework. My job is to act as an independent practitioner to assess people who lack mental capacity in care homes under the DOLS legislation. I am independent from the care home, the persons family, the commissioners of the persons care and anyone else interested in their care. My role is to make sure that vulnerable peoples detention in a care home or hospital is appropriate and necessary. Under the proposed liberty safeguards this independence will be lost.

People in care homes and hospitals are some of the most vulnerable people in society. The vast majority of people I assess have dementia. You don’t have to look to far before you realise that you know someone with dementia. People in care homes are often placed there by other people, family or professionals. In many cases they don’t want to be there. They can become distressed and upset in not being allowed to leave asking to return home to a loved one or family member. They can have personal and intimate care forced upon them by care staff in their best interests. In a lot of cases the person will hit out, scream, shout, bite and scratch the carers providing the care. Physical restraint is sometimes necessary. They can be given mood altering and behaviour modifying medication to sedate them and which often has significant side effects. In some cases medication is hidden in people’s food and drinks as they don’t want to take it. Sometimes decision are made by other people, including the care home or hospital, to prevent family or friends from visiting the person. Whilst this may sound concerning, in a lot of cases these individual restrictions are appropriate for one reason or another to prevent harm to the person and this is where I come in.

I complete an independent assessment for each of these people ensuring that the care and restrictions in place for that person are appropriate and proportionate. Often they are, however there are cases where people may be being restrained when this is unnecessary or where someone can actually live at home with their husband or wife with commissioned support. This is where the real value of having an independent assessor lies as I can through my assessment make changes to improve peoples lives. I visit the care home. I speak to the person, their families and the care staff in the home. I read through the care records held at the home, which in some cases paint a completely different picture to information I have been given by managers and staff at the care home. All this will be lost under the prosed liberty safeguards.

Under the new proposals my role will be reduced to reading and evaluating submitted to me by the care home. I will be dependent upon the information they choose to provide me. I wont have to visit the home or see the person. The care home manager will be the one who decides whether the care plan they have created and the restrictions they impose are proportionate and appropriate. The care home manager will be the one who decides whether a persons is objecting to their care and placement and whether the person would benefit from independent advocacy. Whilst assessments will be signed off by the local authority, this will only be based on information provided. All of this significantly dilutes the safeguards in the system and people’s legal rights. In essence the new Liberty Protection Safeguards allow the ‘gaoler’ to decide whether a person should be subjected to the ‘gaoler’s’ restrictions and it is the ‘gaoler’ to determine if their restrictions are necessary. The ‘gaoler’ will also be the one who decides whether a person is objecting to the restrictions imposed. The ‘gaoler’ is the one with all the power whilst also having a vested financial incentive for the person to remain in their care home.

I appreciate that there are a lot of things for the committee to consider regarding the proposed Liberty Protection Safeguards, however for me the most important thing is maintaining that a thorough assessment is carried out by someone independent who has no interest in the persons care and arrangements to ensure that if someone is in care home they require the restrictions and deprivation imposed upon their liberty.

I accept that the current DOLS legislation is ‘unwieldly’ and expensive but all it would have taken was to amend the current system rather than create something that will fail the most vulnerable people in society.


Andrew MacTaggart

Best interests assessor

January 2019


Prepared 15th January 2019