Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by the Association of Directors of Adults Social Services (ADASS) (MCAB77)

The Mental Capacity (Amendment) Bill

About us - The Association of Directors of Adults Social Services (ADASS)

The Association of Directors of Adults Social Services (ADASS) is a registered charity which aims to further the interests of people in need of social care by promoting high standards of social care services and influencing the development of social care legislation and policy. The membership is drawn from all the serving directors of adult social care employed by local authorities in England.  Our objectives include:

· furthering comprehensive, equitable, social policies and plans which reflect and shape the economic and social environment of the time.

· furthering the interests of those who need social care services regardless of their background and status

· promoting high standards of social care services

Social care provides care, support, and safeguards for those people in our communities who have the highest level of need and for their carers. Good care and support transforms lives, helping people to live good lives, or the best they can, in a variety of circumstances.

 

About the Bill

ADASS supports the safeguarding of people’s rights where they may not have the capacity to make significant decisions and where they may be deprived of their liberty. This is a fundamentally important safeguard for people who are in extremely vulnerable circumstances and whose human rights may be compromised. We support a proportionate approach through a streamlined assessment process focusing on whether care might be given differently and whether any restrictions are the least that are absolutely necessary.

It is recognised that much of the detail regarding implementation is likely to be worked through in the development of the Code of Practice. 

In our September statement ADASS supported the inclusion of 16 and 17 year olds in the scope of the Bill . ADASS also raised some concerns about the Bill as drafted and has since work ed with the Government and other stakeholders to inform amendments that would make it more fit for purpose. A co-produced approach is supported , as most likely to achieve a Bill that works for all .

The concerns raised in September related chiefly to the role proposed for Care Home Managers in the process for a person who lives in their care home , and to a) capacity, b) competence, c) perverse incentives and potential conflicts of interests, d) additional cost (for training and for additional capacity) and e) whether and how such costs will be resourced.  ADASS believes t hese matters are relevant to all settings, including independent hospitals , NHS hospitals and a person’s own home , as well as care homes .

T he Bill must be fit for purpose to uphold the human rights of individuals, regardless of whether they fund their own care or their service is funded by a local authority or a CCG.  It is also essential to ensure that there is no risk to the quality of service provided.  It is important that t hese issues are fully understood and that the implications are clear for local authorities as both commissioner and responsible body under this Bill. T he system that replaces DoLS must be an improvement on its predecessor, for those that need it to safeguard their human rights. 

The a mendments made during the Lords stages have gone some way to address these matters. At the end of the 3 rd reading in the Lords, it was acknowledged by Lord O’Shaughnessy that further work was still required and that the Government would continue to work with stakeholders and bring forward further amendments in the Commons .

ADASS agrees that there is still some way to go on this work to ensure the Bill is fit for purpose and is committed to continue working with the Government and other stakeholders on the Bill , the Code of Practice and other implementation requirements to support getting the new system right .

January 2019

 

Prepared 22nd January 2019