UK (MIB 1202)
1.1 Care UK plc is pleased to make a written
submission to the Joint Committee on the Draft Mental Incapacity
1.2 Whilst broadly welcoming the draft Bill,
our submission is not intended to focus on the detail of its wording,
rather it is intended to identify practical operational issues,
which we consider, will be relevant when considering its implementation.
2. CARE UK PLC
2.1 Care UK plc is a leading independent
provider of health and social care services. We operate as a specialist
care outsourcing business working in partnership with the NHS
and Social Services to deliver health and social care solutions
across the UK.
2.2 Care UK plc has two operating divisions,
residential care and community care, both of which provide care
to a range of people including older adults with physical and
mental health needs, adults with learning disabilities and adults
with severe and enduring mental health needs.
2.3 Today Care UK provides care to more
than 3,000 people in 75 residential and nursing homes, provides
over 40,000 hours of homecare support a week via 35 home care
branches and employs over 7,000 care staff across the country.
2.4 Care UK plc has also, as part of a joint
venture with Afrox Healthcare Limited, recently been appointed
preferred bidder for the provision of three Diagnostic and Treatment
3. PERSONS WHO
3.1 Care UK plc supports the principle set
out in the draft Bill that a person must be assumed to have capacity
unless it is established that he/she lacks capacity. This is consistent
with the delivery of high quality person centred care and should
ensure the involvement and empowerment of the service user in
3.2 What is not clear from the draft Bill
is how capacity will be assessed and by whom. This could cause
confusion and potential conflict between care providers and carers
if not addressed either within the Bill or within the supporting
code of conduct.
3.3 Care UK plc welcomes the inclusion of
clause 4 relating to decisions made in the person's best interest.
Whilst this gives broad protection to care support staff it may
be worth giving greater clarity to what constitutes a persons
best interest again, to prevent potential conflict with service
users relatives. Sources of conflict which do arise, particularly
in the field of learning disability, are where care staff seek
to maximise opportunities in the community which relatives do
not see as relevant or appropriate. Examples of this would be
the choice of holidays, pursuing educational opportunities or
even expenditure on personal items such as clothes. Whilst the
care provider may feel these opportunities are in the "best
interests" of an individual (and can demonstrate this within
a care plan) relatives may not feel this to be the case.
3.4 Care UK plc would respectfully suggest
reference should be made within the draft Bill to a role for independent
advocacy in determining what is in a "persons best interest".
3.5 Operationally, Care UK plc would also
wish to highlight concerns it would have if consultees (as defined
in 2(d)) are risk averse in their approach to care. This may result
in users becoming more dependent on services. It may therefore
be worth including a reference within the draft Bill that would
see a person's best interests specifically linked to maintaining
3.6 Furthermore, operationally within a
residential or nursing setting, the care provider has a responsibility
to protect the health and safety of all users and staff within
a unit. The draft Bill does not currently reflect this. In theory
at least, a decision could be made that is deemed to be in a person's
best interest but which is contrary to protecting the health and
safety of others. For example, it may be suggested that as a person
has always smoked he/she should be allowed to do so whenever he/she
so wishes. This may not be in the best interests of others if,
resources do not permit appropriate support to facilitate this,
within a residential unit and may lead to a fire hazard.
3.7 It is suggested therefore that the draft
Bill needs to refer to the balance of acting in a person's best
interest and the general health and safety of others.
4. THE GENERAL
4.1 Care UK plc supports the view that the
protection given to staff through the general authority clause
will be a benefit that will enable daily decisions on behalf of
service users, to be made with more confidence. What will be crucial
in ensuring this general authority is used lawfully is ensuring
all staff are appropriately trained.
4.2 To this end there may well be additional
costs to delivering this training to all staff. In addition there
may well be a need for greater guidance to be given within the
code of practice for care staff that act under this authority.
4.3 Whilst supporting the general authority
provision as it affects professional care support staff Care UK
plc would wish to raise concerns about potential conflict that
may arise in a residential care setting when others seek to act
within the general authority powers. It would appear that there
is no distinction made between a professional carer and other
carers both of whom may believe they are acting in a person's
best interest. Disputes could occur which it is assumed would
need to be referred to the court for resolution.
4.4 Again Care UK plc would suggest that
consideration should be given within the draft Bill to both the
role independent advocacy could play here and to the establishment
of a local arbitration process to resolve disputes before referring
5. LASTING POWERS
5.1 Care UK plc recognises the opportunity
the introduction of Lasting Powers of Attorney (LPAs) gives to
people, particularly with dementia to make plans for their future.
It is arguable whether LPAs are applicable to people with a learning
disability who may never have had capacity to confer decisions
about their personal welfare, property and affairs.
5.2 Care UK plc welcomes the eligibility
criteria and restrictions placed on donees of a lasting power
of attorney. Operationally our concerns relating to LPAs would
focus on where the donees may be considered to be abusing this
power or where the requests of the LPA on behalf of the individual,
are such that his/her needs cannot be met within the service provided.
It is assumed that this would be avoided through regular care
reviews involving the LPA but Care UK plc would be keen to avoid
being caught in the middle of potential disputes between service
commissioners (ie health and social services) and the LPA on this
5.3 It may well also be worth within the
draft Bill or code of conduct requiring the LPA to producing a
written Power of Attorney plan. This could give general but clear
directions as to welfare, property and affairs matters (including
any advance decisions) and could be included in an individual's
care plan. The production of such a plan would avoid confusion,
and through regular review, would minimise abuse and ensure consistency.
6. GENERAL POWERS
6.1 Care UK plc welcomes the establishment
of the new Court of Protection and has no specific comments to
make in addition to those made earlier about seeking local resolution
7. ADVANCE DECISIONS
7.1 Care UK plc is aware that the inclusion
of advance decisions in the draft Bill is widely supported but
concurs with the view that effective implementation of this part
of the draft Bill will require a public information strategy so
that their purpose is clearly understood.
7.2 When implemented there will again be
significant training requirements for care staff to ensure that
advance decisions are lawfully implemented.
8. EXCLUDED DECISIONS
8.1 Care UK plc has no specific comments
on excluded decisions.
9.1 Care UK plc would welcome the preparation
of a code of practice to underpin the draft Bill. It is anticipated
that the code would address some of the issues contained within
the response and that it would also give clarity to care providers.
10. PARTS 2 AND
3 OF THE
10.1 Care UK plc has no specific comments
to make on parts 2 and 3 of the Draft Bill.
11.1 Care UK plc welcomes the draft Bill
and is grateful for the opportunity to comment on its content.
11.2 Whilst the Bill does give greater clarity
and protection for all carers acting in the best interests of
people without capacity, it is hoped that consideration will be
given to the issues raised within this paper to prevent conflict
and disagreements arising.
11.3 There will be practice and training
issues that need to be addressed and resourced if the draft Bill
is to be implemented successfully.
3 October 2003