ASSOCIATION OF DIRECTORS OF SOCIAL SERVICES
Response to the Draft Mental Incapacity Bill
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
(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 protection arrangements.
(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 (Appendix 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.
Appendix 2 includes a draft submission to the
Department for Constitutional Affairs on the impact of the Bill
on Local Authorities.
5 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
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 Health Bill.
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 Act.
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
(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 to take.
(iv) additional demands on information
(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
(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
(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
(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, e.g. 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
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.
Clause 31: Ill 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
Clause 41: Court 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
Clause 47-49: The Public Guardian and Lord Chancellor
visitors: no comment.
7 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
Director of Social Services West Sussex
Chair of ADSS Disabilities Committee
Joint Committee on the Draft Mental Incapacity Bill
Scrutiny Unit, Room G10,
House of Commons,
London SW1P 3JA
Dear Francene Graham
Draft Mental Incapacity Bill Consultation
I was disappointed and somewhat alarmed to hear today
that the consultation on the draft Bill closes on 1st
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 the 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:
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 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.
The Bill contains a number of proposals that require
more detailed examination e.g. 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.
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.
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 14th October, the last consultation event that
we have been notified of.
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
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 Bill.
ADSS Chair of Disabilities Committee
ASSOCIATION OF DIRECTORS OF SOCIAL SERVICES
The Draft Mental Incapacity Bill: Impact Assessment
This document supplements the Association of Directors
of Social Services (ADSS) formal response to the draft Mental
1 The Code of Practice
Proposals for issues to be covered include:
Clause 3: Presumption against lack
Clause 5: The impact on child care
practice and relation with other statutory guidance and processes.
Clause 8-13: Lasting Power of Attorneys
(i) links with multi agency adult
(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
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
Clause 41: Court of Protection Rules
An accessible version of the rule
would provide assistance in preparing applications for the Court.
Clause 45: Costs
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 the Bill
3.1 Practice Issues
The Bill has wide implications. Some authorities
estimate that fifty 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 individuals 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.
3.5 Training and continuing professional development
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 be local
authorities, and those employed in voluntary, and independent
sector who provide services under care contracts with local authorities.
3.7 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 chose 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.
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
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
(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.
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
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