Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Penny Calthrop (MCAB73)

My name is Penny Calthrop, I am a qualified and experienced social worker and also a qualified best interests assessor. For the past 2 years I have been working for Notts County Council undertaking Deprivation of Liberty Safeguards(DoLS) Assessments, in the specialist team set up for this purpose. I obviously have a keen interest in the proposed Liberty Protection Safeguards(LPS), as they will effect changes to the protection of the most vulnerable people that the role seeks to help protect.

I would like to comment that it appears the government is rushing this bill through parliament with little time for consideration or consultation-the Commons consultation was opened just before Xmas, when many are on holiday, away from work and preoccupied with festivities. It also coincides with brexit which is uppermost in many minds, including politicians. There is no formal process of consultation with practitioners in place.

For the purpose of these comments on the proposed amendments to the Liberty Protection Safeguards Bill I write in a personal capacity, although with the benefit of experience of daily application of the Mental Capacity Act/Deprivation of Liberty Safeguards.

· There is no provision in the amendments/LPS for the opinion of the vulnerable adult. This was included within the DoLS assessment process. This is surely central to the rights of the individual and I do not understand why this has been removed? The bill should have a separate assessment or section for the views of the individual.

· Funding-the estimates of the numbers of those who will be eligible for a LPS assessment seems to be plucked from thin air, especially considering the expansion to include those in their own homes which can only be guessed at! The numbers applying for appeal is likely to rise, as many assessments will be carried out pre admission to homes when objections will be at their highest. The reason for the amendments in the first place is the woeful underfunding by government of the DoLS system-we don't want a repeat! If the funding is lacking there will be poor quality assessments and as with DoLS a backlog of cases meaning unauthorised deprivations.

· The assessments and who will carry them out....there has surely to be some independence and separation of LPS from the care providers? Consider 'Winterbourne'-if these proposals had been in place, those running the home would have self authorised and self approved all the treatment of those individuals. There must be robust protection laid down in legislation about who assesses, self assessment by care home managers/senior staff is a conflict of interest . From my day to day experience of carrying out DoLS assessments in care homes, I can report that many staff(including managers) do not understand what constitutes a 'restriction' and therefore are not able to consider a less restrictive alternative. There also remains a woeful lack of understanding about mental capacity assessments and when these are required. I haven't met a single home manager during my work who wishes to take on assessing under the LPS. The bill should be amended so that only registered professionals undertake the assessment concerning whether an individual is deprived of their liberty and that it is necessary and proportionate.

· Real case example- A recent home I visited noted as an 'activity' for a man of around 60 yrs 'going out for a cigarette'. He was wheelchair dependent and would be wheeled outside the exit door of the home. He never went out apart from that. A previous DoLS assessment had highlighted as a 'Condition' the need for access to external activities. A 'paid representative' (under DoLS ) then found the home were not adhering to this condition and flagged this to the local authority. I visited, reassessed, spoke with the resident concerned and discussed at some length with the home owner and staff, pointing out it was not reasonable to expect this man to be so restricted within the home. The following week on re contacting the home I was informed that they had put in place 3x weekly trips away from the home. The resident had been taken to Tesco to shop and the staff member told me he was so happy on his return, talking about his purchases and what he planned to buy the following week-she said she had never seen him smile so widely.

· The point being this man had no one to speak up for him. Would this outcome have been achieved without an independent assessor visiting? Would this have been flagged without the visit by the paid representative available under DoLs? The home would have self assessed and agreed the restrictions on him as being necessary and proportionate, without considering his need and right for access to be allowed out.

· Access to advocacy-the bill needs to increase the right to an advocate at any point in the process. Under DoLS there is an automatic right for an advocate if there is no one to consult.

· Conditions-can be attached and enforced as part of a DoLS assessment, but not included within LPS. These are so important for outcomes for the vulnerable adult! (see example above). Needs to be added into the bill directly so there is a legal basis.

· Renewals-should not be for the proposed 3 years duration! Highly questionable without a formal review of the detainment. (Consider the Mental Health Act and short length of detentions under this). Amend to 1 year.

· Approved Mental Capacity Professional(AMCP)-replaces best interest assessor role. Current proposal is that only those identified as objecting qualify for an assessment by an AMCP. There need to be additional triggers-for example; objections by others; if no family or others to speak up for them; covert medication.

· AMCP -how will Responsible Bodies such as CCG's & NHS bodies undertake the pre authorisations assessments without adequately trained/skilled staff? Responsibility is placed in the bill on local authorities for AMCP's, so unless health bodies train their staff they will be approaching local authorities for appropriately qualified staff to undertake the authorisations that are their responsibility. The bill needs to be amended to ensure responsible bodies train their own staff for the authorisations it requires.

January 2019

 

Prepared 22nd January 2019