You would think that any changes to a piece of legislation such as the Mental Capacity Act 2005 would be a straightforward thing to do. Well, I would. The DoLs process was not working as effectively as it should have, so those that do took a look at how to make it work better. But sadly in the proposals put forward have failed.
Two major problems, firstly, the over reliance for implementation placed on the Code of Practice, a problem that frustrated the working of the Act from the outset. Secondly, it fails to protect a person’s rights! Strangely remiss one might say.
It fails in two ways, firstly by mangling the term ‘person’! In terms of consultation the proposed phrasing goes away from ‘consulting the person’, to ‘named people close to the person’! It has been argued in the House of Lords that this includes the person! Because they are a ‘people’ involved in their care!!
Let us take an example:
Fred is a forty-five year male who is living at home with two siblings. Fred has Downs Syndrome and has recently been diagnosed with an early onset of a form of dementia. Fred’s mother has died recently and said she wanted Fred to remain at home.
Fred’s happy at home and knows where he is and likes his routine, though he is becoming little forgetful and disorientated. Fred is placing more demands on his Siblings, who want him, in ‘his best interest’ of course, in a home.
They arrange for him to go into respite with the intention of it becoming permanent. The Care Home accepts him. On admission Fred becomes unsettled, anxious, asking to go home and is becoming agitated.
So, safeguarding and DoLs I think!
In the proposed changes the Care Home Manager will be responsible for arranging assessments and coordinating the process.
They will confirm:
- the arrangements give rise to a deprivation of liberty
- the person lacks capacity to consent
- the person is of ‘unsound mind’
- that the arrangements are necessary and proportionate
- whether the person is objecting to the arrangements
- the consultation with named people close to the person has taken place
- whether an independent mental capacity advocate should be appointed
This amounts to a blatant conflict of interest and potentially violates the rights of the individual.
In Fred’s case, he has been put into a home against his wishes and deprived of his liberty without any breach of the proposed changes.
His Siblings flog the house and the Care Manager has their bed occupancy target met.
Nowhere are the consequences of the decision considered. Fred will probably deteriorate more quickly and have a poorer quality of life.
The added pressure on Care Managers, the potential problems created by the subtle manipulation of words is in my opinion reprehensible and cynical behaviour and needs to be challenged robustly.