Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Tracey Hennis (MCAB31)

My name is Tracey Hennis, I am a qualified Social Worker and Best Interest Assessor HCPC Registration SW50053. I have been carrying out Deprivation of Liberty Safeguards Assessments since 2012. I have completed over 500 DoLS assessments. I would like to offer suggestions for amendments with regards of The Mental Capacity Amendment Bill.

1) Wishes and beliefs on the person. This requirement should be at the forefront of the assessment for EVERY individual. I can site many occasions where I have been able to advocate for a person’s Article 8 Rights following consultation. I will cite two examples to aid clarity; An elderly lady (Mrs A) who valued her privacy selected a bedroom prior to admission to a care home, but within a month was placed in a shared room with another woman (she did not know) without any consultation with her Mrs A she did not have the ability to challenge this as she felt it may affect the care she received. Within a week of my involvement she was back in a single room.

On another occasion and elderly man (Mr X) was placed in 24-hour care from hospital following a stroke. He was of the belief that he would be returning to his flat. I scrutinised his previous capacity assessments and care plans etc which clearly stated that he was only going to the home for a short period. When he was reviewed, his mental capacity was not reassessed, and his views were not gained appropriately. When I and the Section 12 Doctor assessed, he had regained capacity and was fully aware of his situation. He and his family were devastated that he no longer had his flat to return to. Mr X was emotional when he told me, ‘I hate it here and now I am stuck here’. This man had fought in the war for this country and his basic rights were not even considered at the most vulnerable time in his life. There will be many more Mr X’s if this new Bill is not amended.

2) Approved Mental Capacity (AMCP) My professional experience is that many individuals do not necessarily object openly. It is often when we engage the person and unpick their situation that objections arise to aspects of their care plan. I do not believe that care home staff have the necessary skills or inclination to carry out the assessment. It is very alarming to think that this is even a consideration. I have visited many care homes and see how overwhelmed staff are with the vital care of the residents. This will add unnecessary administrative burdens to them and is, in my view a conflict of interests. This needs external scrutiny by independent professionals who have many years’ experience in health and social care with knowledge of appropriate law.

3) Advocacy. In my professional experience, individuals without family members do not have their wishes and views respected the same. Mrs A is an example of this. The Bill should be amended to ensure that vulnerable people have access to advocacy. I regularly come across individuals subject to DoLS who are frightened that if they complain this will have an adverse effect on the quality of their care.

4) Care Home Managers; I have spoken to a number of Care Home Managers who are very worried about this additional responsibility. They rightly say that they are busy enough with the care of the residents and readily admit that they do not have the skill set for this additional task. In my professional opinion this is a conflict of interests and will lead to many vulnerable residents’ rights being ignored, which will cause unnecessary suffering. Currently knowledge of DoLS in care homes is at best haphazard, for example, managers often do not understand that capacity is situation and time specific and will provide a blanket ‘lacks capacity’ to all aspects of a person’s situation. Although home managers are responsible for the care of residents, they are also managing a business concern and need to fill the beds, realistically they will not want the additional administrative burden of addressing objections. I recommend that consideration of Managers is removed.

5) Renewals. Three years is far too long for a vulnerable person to be without external scrutiny of their detention. Remember, if that person has no family and is unable to have access to advocacy, they will only see care staff- and often feel unable to tell them for fear of repercussions. 12 months should be the longest period, provided if all is well with their care.

9) Professional Assessments Currently DoLS Assessors have many years of professional experience and knowledge gleaned from their various roles. For examples I have worked On LA Learning Disability, Older peoples, Adults with disability Teams and have worked with various long-term conditions such as Huntington’s, MS, Dementia, etc. I have skills in assessment, developing and monitoring services, knowledge of various conditions, medications, law etc. I am a registered professional and am required to keep up my knowledge and skills. Surely this is beneficial for vulnerable people who need the appropriate professionals to assess their complex circumstances? I strongly recommend that registered professionals complete the assessment.

January 2019


Prepared 15th January 2019