Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Tracey Cave, Social Worker/AMHP/BIA, BIA Team, Middlesbrough Council (MCAB57)

These are comments and views I have been asked to collate from BIA colleagues within Middlesbrough Council:

- Initially concerns have been raised that the LPS is not in line with the Mental Capacity Act principles. For example it does not afford vulnerable people the rights they deserve in terms of right to appeal against their deprivation. It relies on an impartial body (namely the care home) to start the process. This in our view is clearly a conflict of interests as the care home have an invested interest in having the person in their care financially, so it is unlikely they will find the care they provide not in the persons best interest. This is unless the individual presents with problematic behaviours which in itself highlights another issue.

- The one capacity assessment which can be used for several years and will become generic is unfair and unjust to the individual, as capacity is decision specific hence not Mental Capacity Act compliant, as previously stated.

- The prospect of individuals being on a 3 year authorisation is scary as there is little to no external oversight into this as the care homes will be arranging and consulting themselves. Conflict of interest impacts again. There is a concern that objections from individuals will not get acted on. For example numerous times we ask care homes if the relevant person is objection to their care arrangements, the care homes say no and then we find that they are constantly asking to go home and pulling at doors.

- Knowledge with regards to the legislation e.g. Mental Capacity Act and DoLS is poor in some care homes from our experience. We have set up training and care home forums to improve this and provide a greater understanding of the process and how it should be applied. However they still do not apply it appropriately and even believe when the Mental Health Assessor has attended to d=complete the capacity assessment a DoLS has been authorised. This is a great concern if they are going to be the king pin within the LPS.

- Care Homes will be charging the service user the administration cost for the LPS and if they are objecting, in effect they are being charged for their own prison, for which they have no right of appeal.

- We have cases (Learning Disabilities) care managed by Health and Continuing Health Care. These have been taken to the Court of Protection by the Local Authority due to the BIA’s concerns that the care and support is not in that individuals best interests. Health are not providing the level of care the individuals need which would have had detrimental consequences for them. There is a concern with regards to health and also care home under the LPS of who is going to review their processes, and monitor this as under the LPS these individuals would not have been assessed by the BIA who is an independent assessor and would not have made it to the Court.   

- In relation to the changes regarding Relevant Persons Representative (RPR) to Appointed Person (AP) there are no legal responsibilities for them to visit on a regular basis. The concern regarding this is an AP could visit in the first year and not then until year three is that remains. Therefore this negates this role as an added extra safeguard for individuals.

- 16 & 17 year olds will be covered by the LPS however current case law is debating the legislation surrounding this and an appeal is being taken to the Supreme Court in relation to parental responsibility and the ability of whoever holds that can deprive a child of their liberty without any safeguards in place. Care teams will not argue with parents that agree to work with them, however the issues will occur when parents may disagree. All 16 & 17 years old I feel need to have an independent advocate if this appeal is not successful.

- There are concerns that the current proposed LPS are polar opposites to the law commission’s proposals and also with regards to safeguarding individuals and supporting their Human Rights. The speed of the Bill  getting rushed through is also a worry as the point was to improve the legislation to safeguard vulnerable individuals not transport us back full circle for an increase of Steven Neary (2011) cases to occur.

Please find these comments and concerns helpful in your consultation and we would be happy to be contacted further for support.

January 2019


Prepared 16th January 2019