Re: Draft Mental Incapacity Bill (Cm 5859)
July 2003 Submission of Evidence
House of Commons
August 29th 2003
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
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
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
- 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
- Supporters for people are those who know them
well and are chosen by them - supporters they are comfortable
- 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.
My Address is
Mr Simon Cramp
20 Middleton Drive
Draft Mental Incapacity Bill - Written
Submission from Care UK plc
1.1 Care UK plc is pleased to make
a written submission to the Joint Committee on the Draft Mental
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
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
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
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
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
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
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.
11.1 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.
Business Development Director
Care UK plc
3 October 2003