This is a guest post from Lorraine Curry reflecting on the government’s recent amendments to the Mental Capacity (Amendment) Bill. A handy succinct summary of those amendments has been provided by Tim Spencer-Lane, posted by Alex Ruck Keene. I blogged some brief thoughts on them here. They will be debated in Parliament today (21 November) and next week (27 November) as the Bill nears the end of its passage through the House of Lords. After this point it will become much harder to make any substantial changes to the Bill.
Lorraine Currie is a social worker, Best Interests Assessor,MCA/DoLS Lead and provides Independent MCA Consultancy. The views in this blog are her own, not those of any Council, any region or any membership organisation.
As a child I remember a time when I really wanted a pair of tan shoes. I would walk past the shoe shop every day with my mum and couldn’t stop looking at them. My mum explained all the reasons why these were not good shoes for school. Unusually, I won and she gave in and bought me the shoes. They were everything she said that they would be; uncomfortable, not practical, hard to walk in, and what’s more and they would not wear out so I was stuck with them. I got what I wanted, only to find I didn’t want it and it wasn’t right.
So the Mental Capacity Amendment Bill- why is it making me think of those shoes!
We have a crisis in DoLS, one created in my opinion by the large numbers of people now fitting the acid test definition and not one created by the scheme itself. At its heart the scheme could have been quite simple. It was, I believe, a case of not knowing when to stop. Too much detail prescribed, too much in primary legislation and far too much detail in regulations. So much so that a review of the forms was hampered by their content being specified in the Schedule. It’s virtually impossible to tweak or amend.
Then we had the Law Commission draft Bill. In my opinion it lacked some clarity and was potentially more bureaucratic and complex but it did protect rights and have the person at the heart of everything especially with the added changes proposed to the MCA itself.
In July we were all quite shocked to read the Bill which was introduced to Parliament, not even a close cousin of the draft Bill.
We have lobbied unanimously about Rights, Roles and Responsibilities.
And we have been heard, it seems.
The person’s wishes and feelings will be heard, this will be made clear. The responsibility for selecting who carries out assessments, determinations, consultation will be made by the Responsible Body and Care homes managers will not be able to do this where there is a conflict of interests. Unsoundness of mind will revert to mental disorder and the Bill will include 16/17 year olds.
We got the shoes!
After momentary celebration I think there is still a need to pause and reflect and still a need to press on as the Bill enters report stage, with further amendments.
Nothing has changed in relation to the role of AMCP, this is still dependent on objection only.
Nothing has changed in relation to the concepts of necessity and proportionality other than to consider the persons wishes and feelings. The clarity needed is around parameters; necessary for what reason and proportionate to what possibility?
Nothing has changed in relation to the person’s rights to be informed of their detention and the right to appeal.
These are steps in the right direction but I still fear for Responsible Bodies we may find ourselves wearing very uncomfortable shoes.
Effectively we have received back all responsibility to process in excess of 300,000 applications. There is a small glimmer of shared work with care homes but when would they ever do this and why and what with?
The Impact Assessment accompanying the Bill had zero cost for assessments and zero cost for medical evidence. This evidence will now need to be provided by someone with the necessary skills, knowledge and expertise this equals cost. And we are told that regulations may prescribe who this must be, this equals a return to DoLS type assessors. Local Councils will have the same large numbers of people who they currently need to process for DoLS and for Community Dol applications – nothing will change.
The assessments are slightly honed to; capacity, mental disorder and necessary and proportionate but best interests decisions will have to have been made first and someone will need to verify eligibility and that there is no conflict with a Deputy or LPA which is effectively the six assessments of DoLS. This will not be zero cost.
Renewals will be more straightforward and changes of setting should be in theory once we know how changes of responsible body will work. This may reduce some of the year on year costs.
I am struggling to see the savings in this scheme if it is properly funded and if it is inadequately funded I can only see backlogs growing. I think that if our voice is not heard we will be struggling to walk in ill-fitting shoes which we are stuck with. Worse than this we may end up with more than the current 100,000 people whose rights are not protected in any way because of a lack of adequate funding, a lack of a skilled workforce and a process driven system.
At this stage we need to focus our efforts on the further changes needed to make a scheme work. A key element is a definition of deprivation of liberty relevant to care and support, in order to focus protection on those who need it. We need to strengthen rights within the MCA itself by ensuring the excellent principles there are firmly embedded in practice. We need to strengthen the role of AMCP beyond objection only and link this to the concepts of necessity and proportionality giving clarity about their application, not opening further flood gates inadvertently by allowing harm to others to creep in unnoticed.
Overall we need a system which focusses support and expertise where it is most effective, which balances empowerment and protection, where professionals are looking to open doors rather than lock them. This way the most vulnerable receive both the safeguards they need and the rights they deserve, and if funded appropriately will this will happen in a timely manner. Then we will have new shoes which fit and are fit for purpose.
Lorraine Currie November 2018