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Westminster changes to Mental Capacity Act threaten rights of vulnerable adults

16 Aug 2018 5 minute read

Elfed Williams, Director of Services, Conwy and Denbighshire Mental Health Advocacy Service

Over the last eighteen months, the Law Society has been reviewing the framework that is called Deprivation of Liberty Safeguards (DoLs) that is put in place when a person who lacks capacity is placed in a care home.  A Deprivation of Liberty, which is part of the Mental Capacity Act 2005, sounds onerous to many relatives when they first hear about it.  But it is there to ensure that there are checks and balances for the person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes.

The problem is that this process is clunky, can take a long time and many people are falling through the net because of the sheer volume of people now in the care system.  Basically, the present system is not fit for purpose hence the review by the Law Society.

My organisation provides the Independent Mental Capacity Advocates that assists those placed under a DoLs in Conwy and Denbighshire but there are other organisations that provide this service in every county throughout Wales.  As a team, we sat down to review the new proposals and as one were shocked to see what was intended to replace the present system.

The Law Society had made proposals which on the whole were sensible and would have made the process better but this is not what is going through Westminster, this has not been devolved to the Welsh Assembly.  I was so taken aback by what is being proposed by the Government in London that I took the unusual step of sending an open letter, as seen below, to Harriet Harman MP as Chair of the Human Rights Committee in Westminster.

If these proposals are passed into legislation the last place I would want to be is in a care home.

Dear Ms. Harriet Harman QC MP

As Director of Services for Conwy and Denbighshire Mental Health Advocacy Services, I feel I need to write to you as Chair of the House of Commons House of Lords Joint Committee on Human Rights regarding The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards and the Proposed Legislation on Liberty Protection Safeguards (LPS)

We provide the Independent Mental Capacity Advocacy service in our area of North Wales and I am extremely concerned about the content of the proposed above legislation, which, as it stands, appears to undermine the key protections and rights of vulnerable adults, which were introduced following the serious case review of Winterbourne View. I will be feeding into the consultation process, that is currently underway, but I also felt that I should bring to your attention our objections to the proposed changes to this legislation.

There are many flaws within this proposed legislation but my main concerns are in regards to increased responsibilities being proposed for Care Homes managers which will allow them:

  • to carry out a capacity tests on residents that are not objecting to residency in the care home – there appears to be no regards in the legislation to a person having fluctuating capacity or that the test is specific for the current situation – the care home manager might have a vested interest in saying a person is not objecting which raises major safeguarding issues and could be open to abuse.
  • to deciding who is to be appointed to act as an Appropriate Person – in most cases family members act in their relatives best interest but I have seen too many cases where this is not the case and without the current safeguards would have left the person placed in the care home open to financial or even physical abuse. Care Home managers should not be in a position in deciding whom to appoint as the Appropriate Person as they cannot be regarded as being independent and could come under undue pressure from family members again raising safeguarding issues.
  • to decide if a person is objecting to their placement – a care home manager might again have a vested interest, both financially and in time, in saying a person is not objecting but also to avoid an Approved Mental Capacity Professional (AMCP) visit. Was this not the reason why safeguards after Winterbourne were put in place to prevent this kind of thing happening again.
  • to decide if it is in the person’s best interest to have an advocate – there are some very good care homes but also many who do not welcome advocates entering their premises because we are an independent observer, which again raises safeguarding concerns.

Although this legislation is worded carefully in parts, the effect of this proposed legislation will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision-making power over people’s liberty and rights in the hands of organisations and their managers with a commercial interest in the outcome/decisions.

There is no argument that the Mental Capacity Act 2005 Deprivation of Liberty Safeguards required updating as it was no longer fit for purpose.  The proposed new legislation will be a step backwards and the changes instead of looking after people’s best interest appear to have become a cost-cutting exercise that can only lead to people’s human rights being removed.

At the very least, a radical rethink of these proposed changes to DoLS legislation is required. Can you please let me know if you will be suggesting amendments and supporting the well thought through and consulted upon proposals made by the Law Society when this piece of legislation comes before the Houses of Parliament.

I look forward to your reply.

Yours sincerely

Elfed Williams

Director of Services

Conwy and Denbighshire Mental Health Advocacy Service

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