Care England has expressed concern about the Mental Capacity (Amendment) Bill which amends the Mental Capacity Act 2005.
As the bill reached the reached the initial Committee Stage in the House of Lords yesterday, Care England chief executive Professor Martin Green OBE, has highlighted the inherent conflict of interest associated with placing Liberty Protection Safeguards assessment responsibilities on registered care home managers.
Among providers, there is a general consensus that the existing Deprivation of Liberty Standards (DoLS) arrangements are unwieldy and should be replaced. However, there are widespread concerns that aspects of the bill’s proposals erode the safeguards that currently protect people who lack capacity to make decisions about their care and treatment. “Such elements sit uncomfortably in services with a culture focussed on respecting the rights and choices of people receiving support,” Mr Green believes.
He says: “The Government must draw on the expertise contained in the Law Commission’s extensive report and start again with due consideration to all parties involved in protecting those in need backed up by proper consultation and impact assessments”.
The Voluntary Organisations Disability Group (VODG) is also calling for a “radical rethink” of the Mental Capacity (Amendment) Bill .
VODG is critical of the content, motive and ethos of the bill which, it says, already includes over 90 amendments from peers, reflecting the reservations that have met its passage through Parliament.
VODG says there is a potential conflict of interest created by placing LPS assessment responsibilities on care managers: the person responsible for maximising the use of the service will also be responsible for deciding if someone objects to being there. Providers may face allegations they are depriving someone of their liberty to fill a vacancy.
In addition, DoLs apply to the person’s best interests but LPS are based on what is “necessary and proportionate” with no absolute requirement to consider the person’s wishes.
Among other concerns, VODG highlights:
- the financial and practical impact on care providers fulfilling this new responsibility
- the lack of focus on the views of the person being assessed, their family or carers
- the lack of clarity on how LPS will be applied in settings beyond care homes and hospitals and the risk of a two tier system developing
- DoLS apply to people with a “mental disorder” but LPS apply to people of “unsound mind”, with no definition of what this stigmatising term means.
Dr Rhidian Hughes, VODG chief executive, said: “The way the bill has been handled suggests that the goal is saving money, rather than a thoughtful process that prioritises people’s best interests. In its current form, the bill is not fit for purpose.”