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
(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
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.
Chair of ADSS Disabilities Committee, and
Director of Social Services, West Sussex County Council
Member of the ADSS Mental Health Strategy Group,
County Manager (Mental Health Strategy) Hampshire