A controversial proposed amendment to the Mental Capacity Act 2005 could see Care Home Managers playing a greater role in the decision to detain vulnerable people for years. The length of time that the person could be made subject to the restrictions without a review being carried out would also increase under the proposals from one to three years if the amendment is made.
The amendment has attracted criticism from charities and campaigners since the fact that the Care Home stands to profit from the person’s detention creates a clear conflict of interest if they are in any way involved with the decision. Those opposing the changes include leading charities such as the Alzheimer’s Society, Mind and the National Autistic Society who have warned in their letter that the proposals would create an “entirely unfit new system of protection”.
13 charities and rights groups sent a letter to the Times raising the concern that the changes could lead to “exploitation and abuse”. The letter called the Bill rushed, noting that it was drafted before anyone had seen its full response to the Independent Review of the Mental Health Act and therefore contained less safeguards than the Review recommended. It further noted that the Government had not clarified how additional protections would translate for 16 and 17 year olds who are now in scope of the new system. The letter suggests the changes would simply replace “one dysfunctional system with another”.
Following a decision in 2014 by the Supreme Court, a person under continuous supervision that would not be allowed to leave a hospital or care home must have their restrictions approved under ‘Deprivation of Liberty Safeguards’ (Dols). Dols involve the consideration of two independent assessors appointed by the Local Authority and typically an approval will take around four months. However, 48,000 people have to wait for more than a year for the decision to be made and Ministers have said that to clear the backlog, £2 billion would need to be spent. Consequently, changes have been proposed in the Mental Capacity (Amendment) Bill which would allow care home managers to arrange key assessments and decide whether the person should have access to advocacy or not. Michael Henson-Webb, Head of Legal at mental health charity Mind, emphasised that access to quality advocacy for all was essential to put the wishes and feelings of the individual at the heart of any decision being made.
227,000 Dols are approved every year and around half of these relate to people who have dementia. The Alzheimer’s Society is concerned that those in such a situation may not be able to comment frankly on the quality of care they receive, because it would be the care home managers in charge of asking such questions.
Some changes have been made to the original Bill as drafted in response to criticism, but commentators have said that these are not sufficient enough to ensure that decisions were made independent of care homes. Further, Mr Henson-Webb has noted that whilst thorough and independent reviews would be available to those objecting to the arrangements, those who were unable to object would be disadvantaged.
The bill is now at Report stage which means that MPs will have the opportunity to consider further amendments and to speak and vote on changes.
Those with elderly relatives who still have mental capacity should take steps to put both types of Lasting Power of Attorney in place to ensure that, should their relative lose capacity and a dispute arise over the person’s detention, they are involved with all health and care decisions. Failure to take this simple and comparatively cheap step could mean the need to apply for a Court order in the future, an arduous and lengthy process which costs significantly more money.