Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by David Parker (MCAB15)

Dear Public Bill Committee

I am writing to you to express my deep concerns with the Mental Capacity (Amendment) Bill, currently being debated in the House of Commons .

I am writing as a Social Worker, AMHP and BIA and would like to start by saying that DoLS is far from perfect. It is cumbersome and bureaucratic. However it helped to protect the rights of incredibly vulnerable individuals. This Bill simply does not offer that protection and so I feel it is actually worse than DoLS. 

A major issue is the amount of responsibility held by the care home staff and the conflict of interest this creates. I know changes have been made in the House of Lords to limit staff in home undertaking assessments. However care home staff could still be involved in the assessment. Under the proposed system care home staff would be responsible for assessing whether the care they themselves provide is necessary and proportionate as well as assessing whether an individual was objecting to the placement (therefore having control whether an AMCP is brought in to independently assess the placement). It is inconceivable to think no care home would fudge these assessments as it is simply in their financial interests to assess their care as necessary and proportionate and that no individuals in their care are objecting.

The review by the council becomes little more than a paper exercise, rubber stamping what the home has said. Councils will have no duty to inspect homes even if they are unhappy with the paperwork. I can assure you, being a council employee and knowing the financial decisions they are being forced to make, that councils will not inspect if they have no duty to do so. This will result in a revolving door of paperwork with the individual stuck in the middle possibly receiving very poor, overly restrictive care or being a victim of abuse. 

This level of self assessment is very worrying, please remember Winterbourne View and Mid Staffs happened during a time when the CQC allowed self assessment. The abuse of vulnerable adults will continue and these proposals will make it easier for abuse to occur and to go unnoticed for longer.   

Conflict of interest and potential for abuse are not my only concerns with the amount of responsibility sitting with care home staff. DoLS assessments are not simple or easy to do well, certainly if the expectation is your assessment could stand up to the scrutiny of a judge at the Court of Protection. Most of the assessments in DoLS, quite rightly, remain in the new proposals. Assessing capacity, deprivation of liberty and even objection are not straightforward and these assessments are frequently influenced by case law. To put this into context I regularly come across doctors, even Consultant Psychiatrists, who struggle with assessing capacity, deprivation of liberty or objection. I have received BIA assessor training, mandatory yearly BIA refresher training and I undertake my own continuous professional development (reading text books, blogs, attending seminars etc.) to stay on top of the law and what is required of me in the role of BIA. These proposals expect unqualified care staff to be able to understand and complete these assessments with next to no additional training. 

I'm not sure if you all have been to many care homes, or if you have whether they are ones were individuals funded by local authorities (not high cost) are placed. This is certainly not a criticism but it may be you have an unrealistic idea of what a care home is like and what staff work there. These are run on small margins with often all unqualified and low paid staff doing their best with the little time and resource they have. To be clear most homes have no nursing or qualified staff on site and the staff there struggle to provide a decent level of care with a lack of time and high number of residents. While most are caring the quality of the recording and legal literacy is very poor, in urban areas many staff have English as a second language. 

Care plans are often brief, out of date, incomplete, "cut and paste" or all of the above. Their in house capacity or best interest assessments and the DoLS form care homes do complete, the referral form (Form 1), are almost universally filled in incorrectly and consistently show a lack of understanding of what constitutes deprivation of liberty, a best interest decision or a lack of capacity to make a decision.  I am not criticising care home staff for this, as mentioned above many significantly more qualified professionals get these issues confused, however to expect these staff to do satisfactory assessments, given their lack of time, qualification and additional training, is quite simply delusional. 

What I expect will happen is given the high amount of assessments being sent back by councils, the home staff will simply learn what to write to have the paperwork accepted. This will result in copy and paste assessments that have little bearing on reality but are simply written to ensure they are not sent back.  

The choice of who undertakes the assessment should be down to the local authority for those in care homes and there should be a requirement in for professionals to undertake all assessment.

The role of the AMCP is too small, only in cases where the person is identified as objecting. However often the individual is unable to object but family members or others may be very against the placement and the placing authority is simply n ot doing what it should. In this case an AMCP should be triggered. An AMCP should also be involved if the person has no family or friends or if they are on covert or antipsychotic medication. The supply of AMCPs should not just rest with the local authority but all responsible bodies.

A reduction in advocacy is also a concern. F or residents with no appropriate person there is no automatic right to an advocate. It would need to be assessed if it was in their best interests. This is quite frankly an outrageous use of best interests to limit access to services and would likely be incompatible with the ECHR. This could not be viewed as supporting the right to appeal one's deprivation of liberty. Access and rights to advocates need to be increased, such as if considered needed by the AMCP or responsible body.

I am also very concerned about the possibility of conditions being removed under the new scheme. Under DoLS I feel the ability to apply conditions to an authorisation is a real protection. Whether this is to require the home to request a medical review for an individual with dementia prescribed antipsychotics, to request an Occupational Therapist to assess whether a physical restriction (lap belt, bed rails etc) is necessary or to have a best interests meeting with family around personal care that an individual finds upsetting. These can all have a real positive impact on people's lives. 

Another issue is the wishes of the person seem to have been sidelined and lumped together with everyone else’s views. The views of the person should be a separate assessment as holding the person front and centre is really the ethose of the Mental Capacity Act.

I have not spoken to a single colleague or professional who thinks these proposals are anywhere near satisfactory and all are very concerned. I am not sure who the Department for Health have consulted with as most professional bodies (Law Commission, Care England etc.) aren't happy with it either.

The impact statement I have seen states that the changes from the Law Commissions proposals led to a 47% cost reduction. It seems the Department of Health is trying save costs on the back of the rights and safety of some of the most vulnerable in our society.

I apologise if some of my language has been blunt but I feel it demonstrates how concerned I am. Please consider these concerns and the concerns of so many others. This Bill needs significant changes or otherwise vulnerable people will suffer.

Yours sincerely,

David Parker

January 2019

 

Prepared 15th January 2019