Joint Committee on the Draft Mental Incapacity Bill Written Evidence

135.Memorandum from the National Care Standards Commission (MIB 1170)

  1.1  The National Care Standards Commission (NOSO) was established by Government through the Care Standards Act 2000 and came into operation on 1st April 2002. We are a non-departmental public body accountable to Parliament through the Secretary of State for Health. We regulate social care and private and voluntary healthcare services in England and encourage improvement in the quality of those services.

  1.2  The mental incapacity bill is likely to have a significant impact on the services regulated by the NCSC and on some of the NCSC's own decision-making. Some broad examples include:

    —  Assessment of capacity in relation to tenancy agreements or other contracts signed by service users. This has a bearing on whether care is provided in a service user's own home which in turn affects how the service is regulated by the NCSC.

    —  Staff employed as carers in relation to service users who lack capacity or sometimes lack capacity (fluctuating capacity) are routinely involved in assisting service users with decision-making on a day to day basis. The Bill and associated Code of Practice will help to provide a yardstick which the NCSC can use when evaluating the service against some of the relevant regulations and standards.

    —  The new Criminal Offence introduced by the Bill in relation to ill treatment or wilful neglect of a person who lacks capacity will help underpin the Commission's Adult Protection role in partnership with other agencies.

  Comments on specific elements of the Bill are as follows:

2.   The key principles (presumption against lack of capacity and best interests principle)

  2.1  These are welcomed by the NCSC as endorsing current good practice. It is valuable to have included the checklist in relation to "best interests" within the draft legislation. In regulated settings the NCSC would wish to see evidence of consultation in line with clause 4(2) including recorded details of the views of those consulted.

  2.2  The Assessment of Capacity is a key issue—it is assumed that the Code of Practice will supply more detail as to how to assess the elements listed in clause 2(1) of the Bill. The published decision of the Care Standards Tribunal (Alternative Futures Limited v National Care Standards Commission), states that there should have been "an independent assessment of capacity" noting that it is not for the relatives, advocates, the service provider or the NCSC to assess capacity.

  2.3  The NCSC would welcome any direction within the Code of Practice as to both how capacity should be assessed and who should do so.

  2.4  The issue of independent advocacy is one which the Commission would like to see included as a right within the Bill as a means of bolstering the "best interests" principle in relation to key decision-making. This would assist, for example, in relation to the decision-making about where a person lacking in capacity should live. A recent consultation meeting chaired by the NCSC and attended by a range of advocacy groups and related organizations indicated that there is a significant lack of advocates throughout England.

3.   The General Authority

  3.1  The Commission welcomes the clarification about the lawfulness of informal decision-making on behalf of a person that lacks capacity. This form of decision-making occurs on a day to day basis in care homes across the country. The restrictions on the general authority (clause 7 of the Bill) are viewed as an essential safeguard to ensure that this general authority is not used to support abusive or restrictive practices.

  3.2  Some further clarification as to triggers for referring issues to the Court of Protection would be useful. For example, are there certain categories of decision-making that will need to be considered by the Court of Protection, rather than under the general authority or will referral to the Court of Protection only occur when there is a dispute about best interests

4.   Lasting powers of attorney

  4.1  As the lasting power of attorney incorporates decision-making about welfare matters as well as financial matters this may require adjustments within regulated services to ensure that the LPA is involved in matters such as the service user plan, annual reviews etc.

  4.2  In order to fulfil its Royal Commission function, the NCSC has also been involved in gathering information as part of care home inspections, about the number of service users subject to power of attorney processes, enduring power of attorney processes and guardianship orders. It may be appropriate to similarly gather information about LPA's following the enactment of the Bill.

5.   New Criminal Offence

  5.1  The new offence is welcomed as enhancing the protection of people who lack capacity. The Commission would favour an extension of this as a criminal offence to ill treat or wilfully neglect any vulnerable adult, not just those who lack capacity. This would help redress the balance between child protection having a statutory basis whilst adult protection does not.

6.   Code of Practice

  6.1  As earlier comments have indicated this would be a key document which the NCSC would wish to have a role in shaping.

  6.2  It is anticipated that this initial submission in relation to the bill will be expanded upon following further consultation within the organisation, which it was not possible to complete within the timescale available.

August 2003

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