Care providers fear 'judge and jury' powers threaten elderly's rights

Care providers are urging the government to protect the human rights of elderly and disabled people from a "poorly-drafted" bill which proposes new powers for care homes and a potential conflict of interest.

Care leaders have expressed concern the government is not working with them to improve the Mental Capacity (Amendment) Bill, currently going through parliament, which intends to give care managers the responsibility for arranging human rights assessments.

‘Poorly-drafted’ Bill

“This is the last chance saloon for the House of Lords to amend this poorly drafted Bill”, said Martin Green, chief executive of Care England, which represents independent care home operators.

“We have particular concerns about shifting responsibilities onto care home managers when there is a clear conflict of interest”.

The Bill, which reached its next committee stage in the House of Lords on 22 October, seeks to replace ‘Deprivation of Liberty Safeguards’ (DoLs) which aims to ensure people in care homes and hospitals are cared for in a way that does not inappropriately restrict their freedom.

A DoLs assessment determines whether someone should be deprived of their liberty (if they do not have the mental capacity to make decisions about their own care). An example includes stopping someone from leaving a care home of their own free will.

Care providers are worried about a ‘lack of clarity’ from government, in relation to the Bill, concerning how they should balance the best interests of the individual against the need to protect others from risk, when they conflict.

The Bill will affect the human rights of more than 300,000 people in England and Wales including those with dementia, learning disabilities and brain injuries, who often lack the capacity to speak for themselves.

Mr Green added: “Peers have scrutinised the Bill in depth and many have expressed their concerns, but the government seems determined to rail road the Bill through Parliament to the detriment of those most vulnerable in society.”

DoLs backlog shifted to care homes

The proposed Bill aims to replace DoLS with new safeguards called Liberty Protection Safeguards (LPS). DoLs has been criticised by a 2017 Law Commission review for being too complex and bureaucratic.

The CQC’s State of Care report stated: “Variation in how providers implement DoLS and the MCA continues to be an issue, as are delays in local authorities assessing and authorising DoLS applications. This increases the risk of people being unlawfully deprived of their liberty.”

The new Bill aims to transfer responsibility for dealing with the backlog of DoLs assessments from local authorities to care home providers.

The backlog of DoLS applications that remain unfinished at the end of the year has grown from 108,545 in March 2017 to 137,065 in March 2018, an NHS Digital study reveals.

The average length of time it took a local authority to complete a DoLS application in 2017-18 rose to 138 days from 120 days in 2016-17. Some 11.4 per cent of DoLs applications took one year or more to complete.

‘Judge and jury’ powers for care homes

A coalition of care providers, charities and residents’ groups have joined forces to voice concerns about the proposed Bill.

Concerns relating to the Bill, have been published by the coalition including Action on Elder Abuse, Care England, National Care Forum, United Kingdom Homecare Association, National Care Association, Care Association Alliance, Care Provider Alliance, Registered Nursing Home Association and the Relatives & Residents Association.

Judy Downey, chair of the Relatives and Residents Association, said: “The Bill requires care home managers to be judge and jury all too often about decisions in which they themselves were involved.

“This worrying change loses the crucial independent element provided by a professional who has a duty to find out the wishes of the person concerned.

“The Relatives & Residents Association regularly has examples from our Helpline of serious conflicts of interest when vulnerable older people have been deprived of their liberty, and where both residents’ and relatives’ views have been dismissed or ignored.”

’Unfair, unsafe and dangerous’

Gary FitzGerald, chief executive of Action on Elder Abuse, said: “Depriving someone of their liberty (essentially imprisoning them) is a major action that warrants strong safeguards and scrutiny. The current proposals to transfer this responsibility onto care providers is not only unfair to everyone concerned, but is also unsafe, dangerous, and hugely increases the risk of misuse and exploitation.”

The government said the reforms will also save local authorities an estimated £200 million or more a year, while care providers feel the extra financial burden of clearing a DoLs backlog will put more strain on a care sector already facing multiple pressures.

Vic Rayner, executive director of the National Care Forum, which represents care home owners said the government needs to “work with the sector to find a solution that addresses the shortfalls of the status quo whilst still protecting the rights of some of the most vulnerable people. The current proposals will do neither.”

The Bill (introduced to the House of Lords on 3 July) aims to get rid of repeat DoLs assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.

Prior to peers in the House of Lords scrutinising the Bill on 22 October, a Department of Health and Social Care spokesperson said: “Our Mental Capacity (Amendment) Bill will introduce a new system to increase the protection of some of the most vulnerable people in society. This will reduce the number of people waiting for authorisations by simplifying the process and making it less cumbersome for people.

“Care homes will not be deciding authorisations – the bill ensures that authorisations for people to be deprived of their liberty in care homes are determined by responsible bodies such as local authorities or CCGs, who will carefully scrutinise applications made.”