Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

24.Supplementary memorandum from the Association of Directors of Social Services (MIB 1213)

  This submission supplements the oral evidence session on Tuesday 14 October 2003 (Questions 1-6 were covered in oral evidence).


  7.   Are you satisfied with the definition of the General Authority and should its exercise be monitored?

    (a)  The definition of the General Authority is not wholly satisfactory. This is in part due to concerns about other parts of the draft Bill to which Clause 6(6) refers and which provide the context. For example, as we said in our oral evidence, it is our view that the Bill should strengthen its emphasis on "P" as a citizen, whose needs and wishes are at the centre of the process, and who has access to a range of decision making support processes eg advocacy. If this formed part of the explicit framework of the Bill then some of the concerns about the scope of the General Authority would be alleviated.

    (b)  In addition, the phraseology of Best Interests in Clause 4(4) "if the person reasonably believes that what he does or decides is in the best interests of the person concerned" and of the General Authority Clause 6(1) "it is lawful for any person to do an act when providing any form of care for another person"are very broad. Following our written submission to the Joint Committee in September we have become increasingly aware of concerns from service users, in particular those with learning disabilities, who are concerned that the General Authority is something of a "carers charter" and could in practice undermine the progress made in person-centred planning and service provision that has been achieved in recent years. We do not have an alternative form of wording to suggest, but at the very least the Code of Practice would need to make the safeguards explicit.

    (c)  As we understand it, a significant purpose of the GA is to legitimise actions that are probably already taking place, and to support the wide ranging inputs from a range of family, friends, neighbours and professionals in their dealings with people who lack capacity.

    (d)  The potential scope for monitoring is huge, and it is probably neither desirable or feasible for the State to have a role in the comprehensive monitoring of the use of the General Authority. This is not a matter that we have considered in depth, but there are current examples of good practice that could be developed eg keeping a unified record of health and social care contacts in a log in the person's home. There is a good case for requiring records of the use of the General Authority in financial matters. There are, however, situations when there would be potential benefits in proactive monitoring eg where it is suspected that there is exploitation of "P", or where "P"s interests are being harmed by the conflicting actions of parties under this section. In these situations reference could be made to Local Authority Social Services' adult protection arrangements. Guidance on these matters could be addressed in the Code of Practice.

    (e)  It must be emphasised that Local Authorities have not been resourced for the additional responsibilities given them under the "No Secrets" guidance, and are not in a position to undertake additional responsibilities effectively without further resources. The ADSS would wish to engage in further discussions with the Department for Constitutional Affairs and the Department of Health regarding this.

    (f)  The final issue we would like to raise in this section is the interface between the use of the General Authority and arrangements for Appointeeship (and its monitoring) made by the Department of Work and Pensions. The current proposals in the Bill and the Explanatory Notes are largely silent on this issue. We would like to see some proposals of how these powers work together, and the requirements for the effective monitoring of Appointeeship.


  8.   We note your concern about cases of possible abuse of LPAs. What should be done to monitor them to prevent abuse? And what should be done to prevent abuse of existing EPAs if the Bill is enacted?

  We make the following suggestions:

    (a) A requirement for the registration of all LPAs/EPAs, and that their authority cannot be recognised without the production of the relevant certificate.

    (b)  Annual reporting on the use of powers (as is the case currently with Receivership Orders).

    (c)  Referral by the Court of Protection to a Lord Chancellors Visitor in cases of concern.

    (d)  National standards of practice for Lord Chancellors Visitors required to cary out these duties.

    (e)  Where sufficient grounds of concern are identified, a requirement to refer to local adult protection arrangements for a co-ordinated multi agency response.

    (f)  A statutory duty of Local Authority Social Services Departments to intervene when there are reasonable grounds to suspect abuse.

    (g)  There is a need to ensure that there are robust arrangements in place in each Local Authority, adequately resourced by the Department of Health.

    (h)  Powers to transfer the LPA/EPA to another suitable person or agency.

    (i)  There needs to be more research on the nature and extent of abuse in these areas to inform practice, including guidance on the factors that may indicate abuse, and effective methods of intervention.

John Dixon

Chair of ADSS Disabilities Committee, and

Director of Social Services, West Sussex County Council

Graham Collingridge

Member of the ADSS Mental Health Strategy Group, and

County Manager (Mental Health Strategy) Hampshire County Council

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