Joint Committee on the Draft Mental Incapacity Bill Memoranda

Re: Draft Mental Incapacity Bill (Cm 5859) July 2003 Submission of Evidence

Francene Graham


Room G10

House of Commons



August 29th 2003

Dear Madam

Re: Draft Mental Incapacity Bill (Cm 5859) July 2003 Submission of Evidence

My Name is Simon Cramp, and I am a person with a mild Learning Disability. I am a trustee of two major charities - Royal Mencap Society, and a Housing Association called New Dimensions Group which through its operating companies provides housing to people with Learning Disabilities. I am also a Freelance Consultant working in the field of Advocacy and promoting people's rights. I am also involved in a lot of the work set out in Valuing People (Cm 5086, March 2001).

I will now set out from your terms of reference what I like about the Bill and where it can be improved.

The issues the Bill tackles have, of course, been discussed for a very long time. However, I believe the consultation process has fallen short of the ideal because a lot of people who could be affected by the Bill know nothing about it. Groups like Mencap and People First have done something to publicize the Draft Bill; but while I am a very involved part of these groups and I was aware that a Draft Bill was on its way, if I had been a member of say Joe Public I would have not possibly have picked this up. Learning Disability and other disabilities are still not news worthy or on the top of people's agenda. That is a pity when the Bill touches so closely on people's lives.

Are the objectives of the Draft Bill clear and appropriate? Yes, but I believe it was a good move on the Government's part to set up a Joint Committee; and hopefully the Government will find it useful in its future thinking.

What I like in the Bill, and where it can be improved: I believe the Government has drafted the Bill with good will, and tried to give it as much flexibility as possible. However, we hope for further listening to people with learning disabilities both in refining the Bill and in drawing up the Codes of Practice.

The Bill and the Codes between them need to make sure that:

  • The priority is people being allowed to make their own decisions.
  • There is encouragement of listening to people who don't use words but can communicate by other means.
  • People who need help in making or stating their decisions have the support of independent advocacy and circles of support.
  • Supporters for people are those who know them well and are chosen by them - supporters they are comfortable with.
  • Disabled people and others with decision-making problems are allowed time to make decisions with support, rather than being rushed into someone else's decisions.
  • Where urgent decisions have to be made - for example there is a life-threatening condition to deal with - there is still hard listening to the person himself or herself and to those who know them well, including the doctor in medical cases.

The Code could usefully take as an example of an important decision that is not urgent the decisions needed around a holiday for a severely disabled person. Another more significant example would be where someone lives (in cases where the person can not simply decide that for themselves).

I welcome the safeguards in the Bill to protect vulnerable people from abuse of their affairs, but I think there need to be rights of appeal against assumptions being made that they are not able to make decisions, and against decisions made by others that seem to be abusive. The Bill as it stands does not encourage independent advocacy by individuals or by circles of support - in vetting decisions about competence, in vetting decision making by alternative decision makers, and in supporting appeals.

We have lost in this draft the obligation of Social Services Departments to protect vulnerable people where their interests are being threatened.

I hope these points will be useful to the Committee and to the Bill.

Yours Sincerely

Simon Cramp

Freelance Consultation

My Address is

Mr Simon Cramp

20 Middleton Drive




S43 3HS

Draft Mental Incapacity Bill - Written Submission from Care UK plc

1.  Introduction

1.1  Care UK plc is pleased to make a written submission to the Joint Committee on the Draft Mental Incapacity Bill.

1.2  Whilst broadly welcoming the draft Bill, our submission is not intended to focus on the detail of its wording, rather it is intended to identify practical operational issues, which we consider, will be relevant when considering its implementation.


2.  Care UK plc

2.1  Care UK plc is a leading independent provider of health and social care services. We operate as a specialist care outsourcing business working in partnership with the NHS and Social Services to deliver health and social care solutions across the UK.

2.2  Care UK plc has two operating divisions, residential care and community care, both of which provide care to a range of people including older adults with physical and mental health needs, adults with learning disabilities and adults with severe and enduring mental health needs.

2.3  Today Care UK provides care to more than 3,000 people in 75 residential and nursing homes, provides over 40,000 hours of homecare support a week via 35 home care branches and employs over 7,000 care staff across the country.

2.4  Care UK plc has also, as part of a joint venture with Afrox Healthcare Limited, recently been appointed preferred bidder for the provision of three Diagnostic and Treatment Centres.

3.  Persons Who Lack Capacity.

3.1 Care UK plc supports the principle set out in the draft Bill that a person must be assumed to have capacity unless it is established that he/she lacks capacity. This is consistent with the delivery of high quality person centred care and should ensure the involvement and empowerment of the service user in care planning.

3.2  What is not clear form the draft Bill is how capacity will be assessed and by whom. This could cause confusion and potential conflict between care providers and carers if not addressed either within the Bill or within the supporting code of conduct.

3.3  Care UK plc welcomes the inclusion of clause 4 relating to decisions made in the person's best interest. Whilst this gives broad protection to care support staff it may be worth giving greater clarity to what constitutes a persons best interest again, to prevent potential conflict with service users relatives. Sources of conflict which do arise, particularly in the field of learning disability, are where care staff seek to maximise opportunities in the community which relatives do not see as relevant or appropriate. Examples of this would be the choice of holidays, pursuing educational opportunities or even expenditure on personal items such as clothes. Whilst the care provider may feel these opportunities are in the "best interests" of an individual (and can demonstrate this within a care plan) relatives may not feel this to be the case.

3.4  Care UK plc would respectfully suggest reference should be made within the draft Bill to a role for independent advocacy in determining what is in a "persons best interest".

3.5  Operationally, Care UK plc would also wish to highlight concerns it would have if consultees (as defined in 2 (d)) are risk averse in their approach to care. This may result in users becoming more dependent on services. It may therefore be worth including a reference within the draft Bill that would see a person best interests specifically linked to maintaining independence.

3.6  Furthermore, operationally within a residential or nursing setting, the care provider has a responsibility to protect the health and safety of all users and staff within a unit. The draft Bill does not currently reflect this. In theory at least, a decision could be made that is deemed to be in a person's best interest but which is contrary to protecting the health and safety of others. For example, it may be suggested that as a person has always smoked he/she should be allowed to do so whenever he/she so wishes. This may not be in the best interests of others if, resources do not permit appropriate support to facilitate this, within a residential unit and may lead to a fire hazard.

3.7  It is suggested therefore that the draft Bill needs to refer to the balance of acting in a person's best interest and the general health and safety of others.

4.  The General Authority

4.1  Care UK plc supports the view that the protection given to staff through the general authority clause will be a benefit that will enable daily decisions on behalf of service users, to be made with more confidence. What will be crucial in ensuring this general authority is used lawfully is ensuring all staff are appropriately trained.

4.2  To this end there may well be additional costs to delivering this training to all staff. In addition there may well be a need for greater guidance to be given within the code of practice for care staff that act under this authority.

4.3  Whilst supporting the general authority provision as it affects professional care support staff Care UK plc would wish to raise concerns about potential conflict that may arise in a residential care setting when others seek to act within the general authority powers. It would appear that there is no distinction made between a professional carer and other carers both of whom may believe they are acting in a person's best interest. Disputes could occur which it is assumed would need to be referred to the court for resolution.

4.4  Again Care UK plc would suggest that consideration should be given within the draft Bill to both the role independent advocacy could play here and to the establishment of a local arbitration process to resolve disputes before referring to court.

5.  Lasting Powers of Attorney

5.1  Care UK plc recognises the opportunity the introduction of Lasting Powers of Attorney (LPAs) gives to people, particularly with dementia to make plans for their future. It is arguable whether LPAs are applicable to people with a learning disability who may never have had capacity to confer decisions about their personal welfare, property and affairs.

5.2  Care UK plc welcomes the eligibility criteria and restrictions placed on donees of a lasting power of attorney. Operationally our concerns relating to LPAs would focus on where the donees may be considered to be abusing this power or where the requests of the LPA on behalf of the individual, are such that his/her needs cannot be met within the service provided. It is assumed that this would be avoided through regular care reviews involving the LPA but Care UK plc would be keen to avoid being caught in the middle of potential disputes between service commissioners (i.e. health and social services) and the LPA on this matter.

5.3  It may well also be worth within the draft Bill or code of conduct requiring the LPA to producing a written Power of Attorney plan. This could give general but clear directions as to welfare, property and affairs matters (including any advance decisions) and could be included in an individual's care plan. The production of such a plan would avoid confusion, and through regular review, would minimise abuse and ensure consistency.

6.  General Powers of the Court

6.1  Care UK plc welcomes the establishment of the new Court of Protection and has no specific comments to make in addition to those made earlier about seeking local resolution to disputes.

7.  Advance Decisions.

7.1  Care UK plc is aware that the inclusion of advance decisions in the draft Bill is widely supported but concurs with the view that effective implementation of this part of the draft Bill will require a public information strategy so that their purpose is clearly understood.

7.2  When implemented there will again be significant training requirements for care staff to ensure that advance decisions are lawfully implemented.

8.  Excluded Decisions

8.1  Care UK plc has no specific comments on excluded decisions.

9.  Miscellaneous and Supplementary

9.1  Care UK plc would welcome the preparation of a code of practice to underpin the draft Bill. It is anticipated that the code would address some of the issues contained within the response and that it would also give clarity to care providers.

10.  Parts 2 and 3 of the Draft Bill   

10.1  Care UK plc has no specific comments to make on parts 2 and 3 of the Draft Bill.

11.  Conclusions

11.1  Care UK plc welcomes the draft Bill and is grateful for the opportunity to comment on its content.

11.2  Whilst the Bill does give greater clarity and protection for all carers acting in the best interests of people without capacity, it is hoped that consideration will be given to the issues raised within this paper to prevent conflict and disagreements arising.

11.3  There will be practice and training issues that need to be addressed and resourced if the draft Bill is to be implemented successfully.

James Allen

Business Development Director

Care UK plc

3 October 2003

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