20 Oct 2018

Government urged to collaborate with care sector – not oppose it - in reform of mental capacity laws

As peers prepare to scrutinise reforms to mental capacity legislation, care sector leaders are calling on government to listen, engage and work with them to protect human rights safeguards.

The Mental Capacity (Amendment) Bill, currently in the House of Lords and due to reach the next committee stage on Monday 22 October, seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLs). It aims to change the legal safeguards for people who lack capacity to consent to their care or treatment.

Groups that represent the interests of people who use services, families and carers, independent and voluntary social care providers and others have made it clear that they all have serious concerns about the proposed changes.

Sector leaders agree that reform is necessary because the current system is under-resourced and unworkable. But concerns continue to mount over the government’s plans which they say will save local authorities £200 million or more each year without any evidence that this will be achieved. These proposals will dilute human rights safeguards for the most vulnerable including older and disabled people who will often lack the capacity to speak for themselves.

This renewed call to listen and consult with the sector comes as the Department of Health and Social Care formally declined to answer Freedom of Information Access (FoIA) requests outlining its engagement with the sector on the Bill. This decision has now been put to appeal.

Commenting on the Department’s refusal to provide information Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG), said:

“We want to work with government on appropriate reform to the deprivation of liberty safeguards. Our belief is that this must be achieved in an open and transparent way. The engagement the Department of Health and Social Care has had with the sector over these important reforms is a matter of public interest.”

At the earlier committee hearing ministerial lead Lord O’Shaughnessy (Parliamentary Under Secretary of State for Health) announced concessions to some aspects of the proposals. For example, campaigners have called for the new scheme to apply to 16 and 17 year olds and that the stigmatising term “unsound mind” should be replaced. It now seems likely that these amendments will be brought forward.

But key concerns remains.

Judy Downey, chair of the Relatives and Residents Association, said:

“The Bill requires care home managers to be judge and jury all too often about decisions in which they themselves were involved. This worrying change loses the crucial independent element provided by a professional who has a duty to find out the wishes of the person concerned to provide the least restrictive option. The Relatives & Residents Association regularly has examples from our Helpline of serious conflicts of interest when vulnerable older people have been deprived of their liberty, and where both residents’ and relatives’ views have been dismissed or ignored.”

Gary FitzGerald, chief executive of Action on Elder Abuse, said:

“The principles of the Mental Capacity Act are intended to protect some of the most vulnerable people in our society, many of whom are frail, older people. Depriving someone of their liberty (essentially imprisoning them) is a major action that warrants strong safeguards and scrutiny. The current proposals to transfer this responsibility onto care providers is not only unfair to everyone concerned, but is also unsafe, dangerous, and hugely increases the risk of misuse and exploitation.”

Professor Martin Green, chief executive of Care England, said:

“This is the last chance saloon for the House of Lords to amend this poorly drafted Bill. We have particular concerns about shifting responsibilities onto care home managers when there is a clear conflict of interest. Peers have scrutinised the Bill in depth and many have expressed their concerns, but the government seems determined to rail road the Bill through Parliament to the detriment of those most vulnerable in society.”

Jan Burns, chair of the National Dignity Council, said:

“The National Dignity Council share the message expressed within the cross sector statement for the government to collaborate with the social care sector not oppose it. We also share many of the concerns raised regarding the proposed Bill, specifically highlighting what appear to be, inequalities and impracticalities that could severely impact on people who use services and those who care for them. Dignity is about treating people with compassion, kindness, and respect – human rights are all at risk of erosion if the Bill stands as proposed.”

Erica Lockhart, co-chair of the Care Associations Alliance, said:

"Local care associations have joined with local authorities to state their dismay at the proposals. Both parties are clear that care managers cannot provide an impartial service, and that the inherent conflict of interest this places of providers must be removed for the new legislation to be workable."

 Notes for editorsA cross-sector representation of issues and concerns relating to the Mental Capacity (Amendment) Bill, was published by a number of organisations representing people who use services, family and carer groups and independent and voluntary sector providers:

Action on Elder Abuse

Association for Real Change

Association of Mental Health Providers

Associated Retirement Community Operators

Care England

Care Association Alliance

Care Provider Alliance

Learning Disability England

National Care Association

National Care Forum

National Dignity Council

Shared Lives Plus

Registered Nursing Home Association

Relatives & Residents Association

United Kingdom Homecare Association

Voluntary Organisations Disability Group


The Freedom of Information Access request put to the Department of Health and Social Care on 13 September 2018:

“List the engagement the Department of Health and Social Care has had with the health and social care sectors to inform the Mental Capacity (Amendment) Bill. For each engagement please provide:
  1. An indication of whether it was a health or social care engagement
  2. The date of the meeting
  3. The number of participants
  4. The geographical location the meeting was held
  5. The minutes of the meeting (suitably anonymised) or a summary of the intelligence gathered or outcomes of the meeting.”
An extract of the DHSC response (received on 15 October 2018) reads:“DHSC has the information you have requested.To provide the information as it is currently framed would exceed the appropriate cost limit set out in the FOIA.Section 12(1) of the FOIA means public authorities are not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for the DHSC is set at £600, which represents the cost of one person spending 3.5 days determining whether we hold the information, and then locating, retrieving and extracting the information.”