23.Memorandum from the Association of
Directors of Social Services (MIB 1040)
1. The Association of Directors of Social
Services (ADSS) is a network of Directors in England and Wales.
It conducts most of its business through a series of Committees,
including Disabilities, Older People and Resources.
2. Local Authorities with Social Services
Responsibilities have a direct interest in the content of the
draft Bill and its implementation. They have substantial involvement
with a large number of people with mental incapacity, including
older people, people with learning disabilities, and people with
mental health problems. The involvement of Social Services Departments
includes the following:
(i) Assessment and Care Management of people
with community care needs.
(ii) Functions under the Mental Health Act
(1983) including: assessments for compulsory detention or guardianship;
and circumstances when the Director of Social Services is appointed
as a Receiver by the Court of Protection.
(iii) Local agency lead in multi agency adult
(iv) Provision of community care services
and residential care.
(v) Commissioning community care and residential
care from the voluntary and independent sector.
3. The commissioning and delivery of services
for people with mental incapacity is increasingly undertaken in
partnership with the NHS, including arrangements under Section
31 Health Act. In particular, the majority of adult mental health
services in secondary care are now delivered through integrated
management arrangements with mental health trusts.
4. The ADSS has previously commented in
brief on the proposals (Annex 1). The ADSS broadly welcomes the
proposals contained within the draft Bill as a significant and
long overdue step forward in providing a legal framework for people
with mental incapacity. The Bill has significant implications
for service delivery and there will be costs associated with implementation.
These need to be reflected in the Formula Spending Share settlement
between Local Authorities and Government. The ADSS would like
to ensure an ongoing dialogue with the Department for Constitutional
Affairs and the Department of Health throughout the development
of the Bill and the Codes of Practice. The following comments
address particular aspects of the draft Bill.
Annex 2 includes a draft submission to the Department
for Constitutional Affairs on the impact of the Bill on Local
Part 1: Persons who lack capacity
Clauses 1-5: Preliminary
Clause 3: The presumption against lack of capacity
is crucial. We are concerned about the risks to individual liberty,
and to the possible increasing demands for public services to
intervene in lives of people, and would welcome a strengthening
of the wording of this section in the Bill, and in the Code of
Clause 4: Best Interests The Code of Practice
should give guidance on the matters that need to be taken into
account, noting the guidance and case law in "Making Decisions:
A Guide for Social Care Professionals".
Clause 5: We note the extension of powers from
those under the current Mental Health Act and the need to consider
the impact on childcare and child protection practice.
Clause 6: The General Authority: this
clause needs additional guidance in the Code of Practice as follows:
(i) for people, including care staff who act
under this authority;
(ii) the relationship with duties under the
Care Standards Act;
(iii) the relationship with Appointeeship procedures
and the management of benefits.
Clause 7: The Code of Practice should address
the relationship with proposals for Compulsory Community Treatment
under the Mental Health Bill, which we presume will replace the
current provisions for Guardianship under the Mental Health Act
Clauses 8-13: Lasting Powers of Attorney
Our main concern under these clauses is the scope
of Social Services responsibilities when it is suspected that
donees of LPAs are abusing their authority. Social Services have
established Adult Protection arrangements under the Department
of Health's "No Secrets" Guidance, and these could provide
a local framework under which these matters are considered.
(i) the role of Adult Protection arrangements
should be addressed in the Code of Practice;
(ii) Clause 10: as with Clause 7 this requires
guidance in the Code of Practice regarding the use of Compulsory
Community Treatment powers (currently Guardianship) in the Mental
Clauses 11-20: General Powers of the Court
and the appointment of deputies
Clause 15: We note the inclusion of an adult
protection dimension: "the lawfulness of an act, omission
or course of conduct in relation to that person" which
is an addition to current requirements under the Mental Health
Clause 16: Powers to make decisions and appoint
This clause has significant implications for Directors
of Social Services. The current arrangements under the Mental
Health Act allow for Directors to be appointed as Receivers to
manage the financial affairs of people with mental incapacity.
There is widespread variation in the use of this power by Social
Services Departments. The new proposals extend the powers to welfare
decisions. The implications include the following:
(i) Directors will need to review their local
policy and practice on the use of discretionary powers under incapacity
(ii) the extension of the powers to welfare
decisions is likely to result in additional demands on services
which are already at capacity;
(iii) the extension of powers could require Directors
and Social Services staff (and Elected Members) to engage in decisions
of an ethical nature that they have not previously been required
(iv) additional demands on information systems;
(v) the performance or other reporting and review
arrangements that may be placed on Local Authorities.
Clause 17: As with Clause 7 the Code of Practice
should identify when powers under the Mental Health Act would
be more appropriate.
Clause 19(7): Local Authorities must be entitled
to charge on an equivalent basis to other bodies for carrying
out duties under the Act. A fair and consistent charging mechanism
is likely to be achieved only if determined by the Court. Local
Authorities would expect to be able to charge for all costs associated
with undertaking duties under the Act including administration
costs and additional care management (social work input).
Clauses 23-25: Advance decisions
This is a welcome inclusion in the Bill. Effective
implementation of this section will require a public information
strategy, including the need for a structured approach to life
planning, the making of wills, etc; and the role of the private
and voluntary sectors in these matters.
The Act or Code of Practice should define treatment,
including whether this is the same definition as in the Mental
Health Act Code of Practice.
The implications of these proposals for Social Services:
(i) advance decision should be considered as
part of an assessment of community care needs (some Mental health
Trusts now include Advance Directive documentation in their Care
Programme Approach assessment, but this is not yet common practice);
(ii) there are considerable training implications
for care staff. The arising practice issues need to be included
in the new Social Work degree; and in the range of training for
non-professionally affiliated staff. It should be noted that the
majority of care staff will not have a professional qualification;
(iii) some experience from USA suggests that
the preparation of Advance Directives raises ethical and spiritual/religious
issues for a person and those involved in their care, eg refusing
life sustaining treatment, and for which people are ill prepared
to consider. Competency to practice in this area requires a degree
of "ethical and spiritual literacy".
Clauses 26-29: Excluded decisions: no comment.
Miscellaneous and Supplementary
Clause 30: Code or Codes of Practice
This response to consultation includes reference
to matters that should be contained within Codes of Practice.
The ADSS would expect to be consulted during the
preparation and revision of a code of practice; and likewise all
Local Authorities and NHS bodies. Effective communication with
these bodies can be achieved through the weekly Chief Executives
Bulletin issued electronically by the Department of Health, and
with Local Authorities through the ADSS Bulletin.<etClause
31:<ntIll Treatment and Neglect
The Code of Practice or other guidance should clarify
the liability of the Director of Social Services as a deputy if
an employee commits an offence under this clause.
6 Part 2: The Court of Protection and the
Clause 34: The Court of Protection. The inclusion
of provision of more local and accessible Courts is welcome.
Clause 39: Power to call for reports
The new power for the Court to require a local authority
to arrange for a report to be made is noted. We request further
information on why this power is required, the anticipated demand,
and the criteria for using the power. We also seek an assurance
that Local Authority staff will not be used as a substitute or
replacement service for Lord Chancellor's visitors.<etClause
41:<ntCourt of Protection Rules
The implementation of the provisions in the Bill
would be facilitated by the publication of a publicly accessible
version of the Rules to assist the public and professionals in
the preparation of applications.
Clause 45: Costs
Local Authorities would expect to be awarded costs
for expenses incurred in the course of proceedings in the Court
of Protection. Legal aid should be available to parties in proceedings.
Clause 47-49: The Public Guardian and Lord Chancellor
visitors: no comment.
Part 3: General No comment.
8 Matters not covered in the Bill: We
note the comment in the Explanatory Notes that the Hague Convention
of the International Protection of Adults 2000 and request consultation
on the provisions to be inserted into the Bill prior to its introduction
Draft Mental Incapacity Bill Consultation
I was disappointed and somewhat alarmed to hear
today that the consultation on the draft Bill closes on 1 September,
a date that has not previously been communicated to me or my colleague
Directors of Social Services. The proposals contained within the
draft Bill have significant implications for Councils with Social
Services Responsibilities, and both individual authorities and
the ADSS collectively require sufficient time and notice to prepare
a useful response. When the draft Bill was published on 27 June
the accompanying letter from Chris Walker said quite clearly "Once
it is established the (Joint) Committee will let people know the
timescale to which it is working". This has not happened.
I would however like to make the following comments:
1. The ADSS broadly welcomes the proposals
contained within the draft Bill as a significant and long overdue
step forward in providing a legal framework for people with mental
2. The assumption against lack of capacity
is a crucial principle, and if possible this should be strengthened
in the Bill and in the Code of Practice.
3. The Bill contains a number of proposals
that require more detailed examination eg the implications for
Authorities concerning advance statements; and the implications
for Directors and Elected Members of welfare matters included
in the scope of Lasting Powers of Attorneys. In addition, Councils
with Social Services Responsibilities (CSSRs) have the lead for
adult protection, and have established partnership arrangements
that could provide a useful local framework to address the protection
issues arising from the legislation.
4. The ADSS expects CSSRs to be actively
involved in the development of the Code of Practice. There is
a substantial level of expertise within Social Services Departments
that would add value to the quality of the Code.
5. The timescale for consultation that was
imposed subsequent to publication of the draft Bill was too short
and inadequately communicated to major stakeholders. The ADSS
notes that consultation events have been planned by the Department
into the Autumn and expects that the formal response from the
ADSS will be accepted beyond 14 October, the last consultation
event that we have been notified of.
6. The Partial Regulatory Impact Assessment
acknowledges both that the Department of Constitutional Affairs
"is seeking to reduce centrally issued guidance and devolve
more responsibilities to the NHS/Councils with Social Services
Responsibilities"; and that the costs of complying with the
legislation will be borne by a number of stakeholders including
CSSRs. CSSRs must be fully consulted, and with reasonable timescales,
in the forthcoming impact assessment.
7. Further consultation on the draft Bill
must be more effectively communicated with stakeholders. The launch
of the draft Bill was communicated through the Department of Health's
Chief Executive's Bulletin, and this is an effective vehicle for
communication with the NHS and CSSRs. In addition, information
should be sent to the ADSS, with me as the contact point.
I would be grateful if you would acknowledge
receipt of this letter and give me your response to the points
raised, in particular a commitment for effective consultation
and communication about work in progress concerning the draft
ADSS Chair of Disabilities Committee
ASSOCIATION OF DIRECTORS OF SOCIAL SERVICES
The Draft Mental Incapacity Bill: Impact
This document supplements the Association of
Directors of Social Services (ADSS) formal response to the draft
Mental Incapacity Bill.
1. THE CODE
Proposals for issues to be covered include:
|Clause 3:||Presumption against lack of capacity.
|Clause 5:||The impact on child care practice and relation with other statutory guidance and processes.|
|Clause 8-13:||Lasting Powers of Attorneys|
(i) links with multi-agency adult protection arrangements;
(ii) the link with powers under the Mental Health Bill/Mental Health Act;
(iii) Deputies and their responsibilities in relation to legislation covering confidentiality and access to information.
|Clause 23-25:||Advance Decisions|
(i) advance decisions as part of the consideration in an assessment under the Community Care Act and Mental Health Act;
(ii) there is considerable other guidance required, some already available that should be incorporated in the Code.
|Clause 39:||Power to call for reports|
(i) the criteria used to decide when Lord Chancellor's Visitors and Local Authorities are to be asked to provide a report;
(ii) guidelines and a template for reports.
|Clause 41:||Court of Protection Rules|
An accessible version of the rule would provide assistance in preparing applications for the Court.
Reference to guidance published by the Court on what costs can be recovered for assisting in proceedings.
The ADSS would support the production of central guidance
and would encourage Social Service Departments to share local
guidance where this is available.
3. IMPACT OF
3.1 The Bill has wide implications. Some authorities
estimate that 50 per cent of older people receiving social care
services have some degree of cognitive impairment, in addition
to adults with mental health problems and people with learning
disabilities in receipt of social care.
3.2 The introduction of the Bill could require a review
of current assessment and care management practice, including
risk assessment. These are concerns that the Bill could result
in additional demands on Social Services from the public, relatives
and friends, and other care professionals, to intervene in people's
lives when there are signs of mental incapacity. There are particular
pressures when an individual is in a hospital bed. Issues of delayed
discharge, reimbursement and risk-averse practice could compromise
an individual's choice. In order to promote the independence of
the individual within a framework of acceptable risk it is essential
to base care decisions on a sound assessment of need and risk.
Failure to do this will limit independence and could result in
unnecessary use of residential care resources. The Code of Practice
will be crucial to assisting individual's professionals and carers
in these decisions.
3.3 Some authorities have suggested that whilst risk
assessment and management practice in adult mental health services
is well developed this is not so in other services. It is worth
considering the case for the development of tools to assess and
manage risk including that arising from mental incapacity, that
are more widely applicable.
3.4 The best interests of an individual will be promoted
by easy access to independent information, advice and advocacy.
We would like to know what proposals are being developed to enhance
access to these services through the voluntary and independent
sector, including the resources made available.
Local Authorities do not have the duty, or the resources,
to secure the provision of support and advocacy, which is usually
best provided by independent bodies.
Training and continuing professional development
3.5 Many of the paid carers working with people with
mental incapacity will not be professionally qualified. Significant
additional training resources will need to be deployed to ensure
that staff operate within the framework of the Bill and Code of
Practice. This will include staff employment directly by local
authorities, and those employed in voluntary and independent sectors
who provide services under care contracts with local authorities.
3.6 The requirements of the Bill will clearly need to
form part of professional training. Social Services Departments
will also clearly need to ensure the existing workforce have adequate
training, development, and access to guidance and advice. Some
authorities may choose to develop local mental incapacity practice
guidance, based on the Code of Practice and national guidance.
Given the multi-disciplinary nature of care, it would be desirable
for much training to be developed on a multi-agency basis with
NHS, voluntary and independent sector staff. Existing multi-agency
training in adult protection will also need to be revised.
3.7 The Bill is expected to result in increased costs
to Local Authorities arising from additional demand for assessment
and interventions under the welfare provisions for Court Deputies,
and the provision of Court reports. There will also be additional
costs from training, and central support costs including legal
advice and preparation of papers for the Court.
3.8 The Bill makes provision from the recovery of costs
in legal proceeding, and other duties carried out for the person
with incapacity. Local Authorities will expect to establish charging
policies and procedures to recover costs for some services provided.
3.9 There may be other financial implications that are
advantageous to Local Authorities.
(i) Local Authorities occasionally incur debt from individuals
with mental incapacity that has to be written off. Early intervention
and the establishment of robust financial arrangements could ensure
the appropriate collection of charges for care.
(ii) A proactive response with local solicitors and voluntary
sector advice and advocacy agencies to the Bill could promote
the development of life planning, including the making of wills,
Lasting Powers of Attorney, and advance decisions. This would
assist Local Authorities in determining an individual's best interests,
and minimise the need for Local Authority intervention.
3.10 Local Authorities will need to provide staff and
service users with a range of information. This is covered elsewhere
in this report. Electronic information systems will need to be
review to ensure that activity in connection with the Bill is
captured and can be aggregated for performance management purposes.
3.11 The Bill and explanatory notes make no reference
to the roles and responsibilities of Deputies in relation to consent
and access to information on confidential records. Local Authorities
will need to be advised of their powers and duties in managing
the information of people who are unable to consent to disclosure;
and of its responsibilities when the Director of Social Services
is a deputy.
Director of Social Services West Sussex
Chair, ADSS Disabilities Committee