Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Kay Matthews (MCAB12)

Dear House of Commons Public Bill Committee

My views on the Mental Capacity (Amendment) Bill

I work for the Deprivation of Liberty Safeguards team for the Borough of Poole local authority. I trained as a social worker around the same time as the Mental Capacity Act and DoLS were introduced so I have followed it my whole career. I have been a Best Interest Assessor since 2011 and have worked for the DoLS team since 2017.

This is what I would like to see in the new Act:

· Wishes of the person- past and present. I would like the person’s wishes- what they want, what they would have wanted- to be central to the assessment. I would like it stipulated that people making decisions on behalf of the person ought to support the person who lacks capacity to make the decisions they would have made if they still had capacity; that the person’s wishes are to be followed unless there is evidence that there is or could be seriously dangerous or significantly distressing consequences for the person.

The reason I say this is, in practice, some staff and relatives see a lack of capacity as a green light to over-ride the wishes of the person to meet their own needs (which are usually to feel less personally or professionally anxious about the person). I’ve seen this happen again and again over the last 10 years. To counteract this, there could be a paragraph written to make it clear that the MCA is an enabling Act designed to support people to make the decisions they would have made.

· I would limit the power of care home managers and private hospitals to assess or detain people as this could be a conflict of interests. Also, in practice they can get it wrong (this is not usual, but it happens), I have found people that had capacity who’d been assessed to not have capacity by the care home, and who have been restricted against their will for various reasons including lack of staff creativity, misunderstanding of the law or staff shortage.

· I would like DoLS conditions to remain- these are often essential in making a person’s daily life less restrictive.

· Mental Health Assessors. These are not necessary in some cases where there is a clear and current relevant diagnosis given by a consultant psychiatrist. Consideration could be given to allowing BIAs who work in integrated mental health teams and BIAs who are AMHPs to fulfil the mental health assessor role. With the agreement that if there is any doubt or ambiguity to refer to a medical mental health assessor.

The reason I say this is that a person with, for example, moderate Alzheimer’s will usually have had many documented assessments and this diagnosis will not change so it seems superfluous to pay a medic to reassess this annually if there is no ambiguity.

· I would like to see a part about capability. If someone can’t do something they would like due to lack of capability, they ought to be supported to do it, rather than being prevented from doing so. A usual example is care homes preventing a person from leaving the home due to the risk of falls or getting lost. They blanket-ban the person from going out alone, even into the garden, rather than thinking of safe ways they can meet their needs. The BIA will usually go through this with the care home but it would be good to have it in the actual Act.

Thank you for your time.

Kay Matthews

AMHP/BIA/Social Worker

Deprivation of Liberty Safeguards (DoLS) Team

January 2019


Prepared 15th January 2019