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
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
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
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
issueit 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
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.