Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence



  1.1  Care UK plc is pleased to make a written submission to the Joint Committee on the Draft Mental Incapacity Bill.

  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.


  2.1  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 Centres.


  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 care planning.

  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 independence.

  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.


  4.1  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 to court.


  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 matter.

  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.


  6.1  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 to disputes.


  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.


  8.1  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.


  10.1  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

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