Joint Committee on the Draft Mental Incapacity Bill Memoranda


Response to the Draft Mental Incapacity Bill


1  The Association of Directors of Social Services (ADSS) is a network of Directors in England and Wales. It conducts most of its business through a series of Committees, including Disabilities, Older People and Resources.

2  Local Authorities with Social Services Responsibilities have a direct interest in the content of the draft Bill and its implementation. They have substantial involvement with a large number of people with mental incapacity, including older people, people with learning disabilities, and people with mental health problems. The involvement of Social Services Departments includes the following:

  (i)  Assessment and Care Management of people with community care needs.

  (ii)  Functions under the Mental Health Act (1983) including: assessments for compulsory detention or guardianship; and circumstances when the Director of Social Services is appointed as a Receiver by the Court of Protection.

  (iii)  Local agency lead in multi agency adult protection arrangements.

  (iv)  Provision of community care services and residential care.

  (v)  Commissioning community care and residential care from the voluntary and independent sector.

3  The commissioning and delivery of services for people with mental incapacity is increasingly undertaken in partnership with the NHS, including arrangements under Section 31 Health Act. In particular, the majority of adult mental health services in secondary care are now delivered through integrated management arrangements with mental health trusts.

The Bill

4  The ADSS has previously commented in brief on the proposals (Appendix 1). The ADSS broadly welcomes the proposals contained within the draft Bill as a significant and long overdue step forward in providing a legal framework for people with mental incapacity. The Bill has significant implications for service delivery and there will be costs associated with implementation. These need to be reflected in the Formula Spending Share settlement between Local Authorities and Government. The ADSS would like to ensure an ongoing dialogue with the Department for Constitutional Affairs and the Department of Health throughout the development of the Bill and the Codes of Practice. The following comments address particular aspects of the draft Bill.

  Appendix 2 includes a draft submission to the Department for Constitutional Affairs on the impact of the Bill on Local Authorities.

5  Part 1:  Persons who lack capacity

  Clauses 1-5:   Preliminary

Clause 3:  The presumption against lack of capacity is crucial. We are concerned about the risks to individual liberty, and to the possible increasing demands for public services to intervene in lives of people, and would welcome a strengthening of the wording of this section in the Bill, and in the Code of Practice.

Clause 4:   Best Interests

    The Code of Practice should give guidance on the matters that need to be taken into account, noting the guidance and case law in 'Making Decisions: A Guide for Social Care Professionals'.

Clause 5:   We note the extension of powers from those under the current Mental Health Act and the need to consider the impact on childcare and child protection practice.

Clause 6:  The General Authority: this clause needs additional guidance in the Code of Practice as follows:-

    (i)  for people, including care staff who act under this authority

    (ii)  the relationship with duties under the Care Standards Act

    (iii)  the relationship with Appointeeship procedures and the management of benefits

Clause 7:  The Code of Practice should address the relationship with proposals for Compulsory Community Treatment under the Mental Health Bill, which we presume will replace the current provisions for Guardianship under the Mental Health Act 1983.

Clauses 8-13:  Lasting Powers of Attorney

    Our main concern under these clauses is the scope of Social Services responsibilities when it is suspected that donees of LPAs are abusing their authority. Social Services have established Adult Protection arrangements under the Department of Health's 'No Secrets' Guidance, and these could provide a local framework under which these matters are considered.

    (i)  the role of Adult Protection arrangements should be addressed in the Code of Practice.

    (ii)  Clause 10: as with Clause 7 this requires guidance in the Code of Practice regarding the use of Compulsory Community Treatment powers (currently Guardianship) in the Mental Health Bill.

Clauses 11-20: General Powers of the Court and the appointment of deputies.

Clause 15:  We note the inclusion of an adult protection dimension: 'the lawfulness of an act, omission or course of conduct in relation to that person' which is an addition to current requirements under the Mental Health Act.

Clause 16:  Powers to make decisions and appoint deputies: general

    This clause has significant implications for Directors of Social Services. The current arrangements under the Mental Health Act allow for Directors to be appointed as Receivers to manage the financial affairs of people with mental incapacity. There is widespread variation in the use of this power by Social Services Departments. The new proposals extend the powers to welfare decisions. The implications include the following:

    (i)  Directors will need to review their local policy and practice on the use of discretionary powers under incapacity legislation.

    (ii)  the extension of the powers to welfare decisions is likely to result in additional demands on services which are already at capacity.

    (iii)  the extension of powers could require Directors and Social Services staff (and Elected Members) to engage in decisions of an ethical nature that they have not previously been required to take.

    (iv)  additional demands on information systems.

    (v)  the performance or other reporting and review arrangements that may be placed on Local Authorities.

Clause 17:  As with Clause 7 the Code of Practice should identify when powers under the Mental Health Act would be more appropriate.

Clause 19(7):  Local Authorities must be entitled to charge on an equivalent basis to other bodies for carrying out duties under the Act. A fair and consistent charging mechanism is likely to be achieved only if determined by the Court. Local Authorities would expect to be able to charge for all costs associated with undertaking duties under the Act including administration costs and additional care management (social work input).

Clauses 23-25: Advance decisions

    This is a welcome inclusion in the Bill. Effective implementation of this section will require a public information strategy, including the need for a structured approach to life planning, the making of wills, etc; and the role of the private and voluntary sectors in these matters.

    The Act or Code of Practice should define treatment, including whether this is the same definition as in the Mental Health Act Code of Practice.

    The implications of these proposals for Social Services:

    (i)  advance decision should be considered as part of an assessment of community care needs (some Mental health Trusts now include Advance Directive documentation in their Care Programme Approach assessment, but this is not yet common practice).

    (ii)  there are considerable training implications for care staff. The arising practice issues need to be included in the new Social Work degree; and in the range of training for non-professionally affiliated staff. It should be noted that the majority of care staff will not have a professional qualification.

    (iii)  some experience from USA suggests that the preparation of Advance Directives raises ethical and spiritual/religious issues for a person and those involved in their care, e.g. refusing life sustaining treatment, and for which people are ill prepared to consider. Competency to practice in this area requires a degree of 'ethical and spiritual literacy'.

Clauses 26-29:   Excluded decisions: no comment.

Miscellaneous and Supplementary

Clause 30:  Code or Codes of Practice

    This response to consultation includes reference to matters that should be contained within Codes of Practice.

    The ADSS would expect to be consulted during the preparation and revision of a code of practice; and likewise all Local Authorities and NHS bodies. Effective communication with these bodies can be achieved through the weekly Chief Executives Bulletin issued electronically by the Department of Health, and with Local Authorities through the ADSS Bulletin.

Clause 31:  Ill Treatment and Neglect

    The Code of Practice or other guidance should clarify the liability of the Director of Social Services as a deputy if an employee commits an offence under this clause.

6  Part 2:   The Court of Protection and the Public Guardian

Clause 34:  The Court of Protection. The inclusion of provision of more local and accessible Courts is welcome.

Clause 39:  Power to call for reports

      The new power for the Court to require a local authority to arrange for a report to be made is noted. We request further information on why this power is required, the anticipated demand, and the criteria for using the power. We also seek an assurance that Local Authority staff will not be used as a substitute or replacement service for Lord Chancellor's visitors.


Clause 41:  Court of Protection Rules

      The implementation of the provisions in the Bill would be facilitated by the publication of a publicly accessible version of the Rules to assist the public and professionals in the preparation of applications.

Clause 45:  Costs

      Local Authorities would expect to be awarded costs for expenses incurred in the course of proceedings in the Court of Protection.

      Legal aid should be available to parties in proceedings.

Clause 47-49:  The Public Guardian and Lord Chancellor visitors: no comment.

7  Part 3:  General    No comment.

8  Matters not covered in the Bill:  We note the comment in the Explanatory Notes that the Hague Convention of the International Protection of Adults 2000 and request consultation on the provisions to be inserted into the Bill prior to its introduction to Parliament.

John Dixon

Director of Social Services West Sussex

Chair of ADSS Disabilities Committee

Appendix 1

Francene Graham

Joint Committee on the Draft Mental Incapacity Bill

Scrutiny Unit, Room G10,

House of Commons,

London SW1P 3JA

Dear Francene Graham

Draft Mental Incapacity Bill Consultation

I was disappointed and somewhat alarmed to hear today that the consultation on the draft Bill closes on 1st September, a date that has not previously been communicated to me or my colleague Directors of Social Services. The proposals contained within the draft Bill have significant implications for Councils with Social Services Responsibilities, and both individual authorities and the ADSS collectively require sufficient time and notice to prepare a useful response. When the draft Bill was published on the 27 June the accompanying letter from Chris Walker said quite clearly 'Once it is established the (Joint) Committee will let people know the timescale to which it is working.' This has not happened. I would however like to make the following comments:

The ADSS broadly welcomes the proposals contained within the draft Bill as a significant and long overdue step forward in providing a legal framework for people with mental incapacity.

The assumption against lack of capacity is a crucial principle, and if possible this should be strengthened in the Bill and in the Code of Practice.

The Bill contains a number of proposals that require more detailed examination e.g. the implications for Authorities concerning advance statements; and the implications for Directors and Elected Members of welfare matters included in the scope of Lasting Powers of Attorneys. In addition, Councils with Social Services Responsibilities (CSSRs) have the lead for adult protection, and have established partnership arrangements that could provide a useful local framework to address the protection issues arising from the legislation.

The ADSS expects CSSRs to be actively involved in the development of the Code of Practice. There is a substantial level of expertise within Social Services Departments that would add value to the quality of the Code.

The timescale for consultation that was imposed subsequent to publication of the draft Bill was too short and inadequately communicated to major stakeholders. The ADSS notes that consultation events have been planned by the Department into the Autumn and expects that the formal response from the ADSS will be accepted beyond 14th October, the last consultation event that we have been notified of.

The Partial Regulatory Impact Assessment acknowledges both that the Department of Constitutional Affairs 'is seeking to reduce centrally issued guidance and devolve more responsibilities to the NHS/Councils with Social Services Responsibilities'; and that the costs of complying with the legislation will be borne by a number of stakeholders including CSSRs. CSSRs must be fully consulted, and with reasonable timescales, in the forthcoming impact assessment.

Further consultation on the draft Bill must be more effectively communicated with stakeholders. The launch of the draft Bill was communicated through the Department of Health's Chief Executive's Bulletin, and this is an effective vehicle for communication with the NHS and CSSRs. In addition, information should be sent to the ADSS, with me as the contact point.

I would be grateful if you would acknowledge receipt of this letter and give me your response to the points raised, in particular a commitment for effective consultation and communication about work in progress concerning the draft Bill.

Yours sincerely

John Dixon

ADSS Chair of Disabilities Committee

Appendix 2



The Draft Mental Incapacity Bill: Impact Assessment

This document supplements the Association of Directors of Social Services (ADSS) formal response to the draft Mental Incapacity Bill.

1  The Code of Practice

Proposals for issues to be covered include:

  Clause 3:    Presumption against lack of capacity.

  Clause 5:    The impact on child care practice and relation with other statutory guidance and processes.

  Clause 8-13:    Lasting Power of Attorneys

      (i)  links with multi agency adult protection arrangements

      (ii)  the link with powers under the Mental Health Bill/Mental Health Act.

      (iii)  Deputies and their responsibilities in relation to legislation covering confidentiality and access to information.

  Clause 23-25:  Advance Decisions

      (i)  advance decisions as part of the consideration in an assessment under the Community Care Act and Mental Health Act.

      (ii)  there is considerable other guidance required, some already available that should be incorporated in the Code.

  Clause 39:    Power to call for reports

      (i)  the criteria used to decide when Lord Chancellor's Visitors and Local Authorities are to be asked to provide a report.

      (ii)  guidelines and a template for reports.

  Clause 41:    Court of Protection Rules

      An accessible version of the rule would provide assistance in preparing applications for the Court.

  Clause 45:    Costs

      Reference to guidance published by the Court on what costs can be recovered for assisting in proceedings.

2  Guidance

  The ADSS would support the production of central guidance and would encourage Social Service Departments to share local guidance where this is available.

3  Impact of the Bill

3.1  Practice Issues

  The Bill has wide implications. Some authorities estimate that fifty per cent of older people receiving social care services have some degree of cognitive impairment, in addition to adults with mental health problems and people with learning disabilities in receipt of social care.

3.2  The introduction of the Bill could require a review of current assessment and care management practice, including risk assessment. These are concerns that the Bill could result in additional demands on Social Services from the public, relatives and friends, and other care professionals, to intervene in people's lives when there are signs of mental incapacity. There are particular pressures when an individual is in a hospital bed. Issues of delayed discharge, reimbursement and risk averse practice could compromise an individuals choice. In order to promote the independence of the individual within a framework of acceptable risk it is essential to base care decisions on a sound assessment of need and risk. Failure to do this will limit independence and could result in unnecessary use of residential care resources. The Code of Practice will be crucial to assisting individual's professionals and carers in these decisions.

3.3  Some authorities have suggested that whilst risk assessment and management practice in adult mental health services is well developed this is not so in other services. It is worth considering the case for the development of tools to assess and manage risk including that arising from mental incapacity, that are more widely applicable.

3.4  The best interests of an individual will be promoted by easy access to independent information, advice and advocacy. We would like to know what proposals are being developed to enhance access to these services through the voluntary and independent sector, including the resources made available.

  Local Authorities do not have the duty, or the resources, to secure the provision of support and advocacy, which is usually best provided by independent bodies.

3.5  Training and continuing professional development

  Many of the paid carers working with people with mental incapacity will not be professionally qualified. Significant additional training resources will need to be deployed to ensure that staff operate within the framework of the Bill and Code of Practice. This will include staff employment directly be local authorities, and those employed in voluntary, and independent sector who provide services under care contracts with local authorities.

3.7  The requirements of the Bill will clearly need to form part of professional training. Social Services Departments will also clearly need to ensure the existing workforce have adequate training, development, and access to guidance and advice. Some authorities may chose to develop local mental incapacity practice guidance, based on the Code of Practice and national guidance. Given the multi disciplinary nature of care, it would be desirable for much training to be developed on a multi agency basis with NHS, voluntary and independent sector staff. Existing multi agency training in adult protection will also need to be revised.

3.8  Finance

  The Bill is expected to result in increased costs to Local Authorities arising from additional demand for assessment and interventions under the welfare provisions for Court Deputies, and the provision of Court reports. There will also be additional costs from training, and central support costs including legal advice and preparation of papers for the Court.

3.8  The Bill makes provision from the recovery of costs in legal proceeding, and other duties carried out for the person with incapacity. Local Authorities will expect to establish charging policies and procedures to recover costs for some services provided.

3.9  There may be other financial implications that are advantageous to Local Authorities.

  (i)  Local Authorities occasionally incur debt from individuals with mental incapacity that has to be written off. Early intervention and the establishment of robust financial arrangements could ensure the appropriate collection of charges for care.

  (ii)  A proactive response with local solicitors and voluntary sector advice and advocacy agencies to the Bill could promote the development of life planning, including the making of wills, Lasting Powers of Attorney, and advance decisions. This would assist Local Authorities in determining an individual's best interests, and minimise the need for Local Authority intervention.

3.10  Information

  Local Authorities will need to provide staff and service users with a range of information. This is covered elsewhere in this report. Electronic information systems will need to be review to ensure that activity in connection with the Bill is captured and can be aggregated for performance management purposes.

3.11  The Bill and explanatory notes make no reference to the roles and responsibilities of Deputies in relation to consent and access to information on confidential records. Local Authorities will need to be advised of their powers and duties in managing the information of people who are unable to consent to disclosure; and of its responsibilities when the Director of Social Services is a deputy.

John Dixon

Director of Social Services West Sussex

Chair, ADSS Disabilities Committee

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