Law Commission consultation and the #LBBill

The Law Commission consultation on ‘Mental Capacity and Deprivation of Liberty‘ closes in a week’s time (on 2 November 2015). The consultation has detailed proposals about new law to manage deprivations of liberty and restrictive care in a wide range of settings, including the family home. There are full and easy read versions of the consultation available. The Law Commission is the official law reform body and has an excellent strike rate in getting its proposals into law; so this consultation definitely matters.

The #LBBill team hope everyone will respond to the whole consultation (what can we say we’re optimists) but above all we need you to respond to the ideas in the consultation which reflect our draft Bill. The consultation is a fantastic opportunity to get some of the ideas in #LBBill into law, but this won’t happen unless there are lots of positive responses to this part of the consultation.

The discussion about the #LBBill ideas starts at para 6.87 of the full consultation document, where the consultation is considering ‘Safeguards when a placement is being considered’. After setting out some terrible cases (including Mark and Steven’s case) the consultation paper says at para 6.94 that ‘Cases of this sort have generated calls for law reform’ (damn right).

At 6.96 the paper summarises some of the key ideas in #LBBill, being:

1. The ban on the cost of care at home being capped by reference to the cost of residential care
2. The requirement to seek the most appropriate living arrangement, with the starting point being the person’s own choices and views – and approval need from the person or the Court of Protection
3. Duties on local authorities and the NHS to report on living arrangements and community support.

The Law Commission’s ‘provisional view’ on these ideas is at para 6.98-6.101. The Commission starts by highlighting the need for greater independent advocacy as a safeguard. However they say they are ‘interested in exploring the possibility of additional safeguards for the person, and their family and carers, when a move into accommodation is being considered’. The Commission specifically say that they would ‘welcome views on the proposals put forward in the LB Bill’.

There are then three questions, which are the questions to which we need supporters of #LBBill to respond:
· Question 6-10 Should local authorities and the NHS in England ever set personal budgets for disabled people living at home by reference to the cost of meeting the person’s needs in residential care? (Suggested answer: no, definitely not)
· Question 6-11 Should there be a duty on local authorities and the NHS…(1) to secure the most appropriate living arrangement for that person, which as far as possible reflects the person’s wishes and feelings; and (2) to seek the agreement of any done of a Lasting Power of Attorney or deputy, or a declaration from the Court of Protection? (Suggested answer: yes, then please explain why you think this would make a difference)
· Question 6-12 Should local authorities and the NHS be required to report annually on issues relating to living arrangements and community support? (Suggested answer: yes, see clause 6 of the draft Bill for what exactly we think they should report on)

Responses can be sent by email to Tim Spencer-Lane. You can just send an email responding to these questions and any others you have enough time or interest to answer (there is a summary of the questions on p201). There is also a postal address (1st Floor, Tower, Post Point 1.54, 52 Queen Anne’s Gate, London SW1H 9AG) although the Commission ask for email responses if possible.

Please respond if you can to help make sure we take this chance to get at least some of the #LBBill ideas into law.

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If you want to know more about the other areas generating a lot of debate, check out this article in Community Care by Andy McNicoll.

Day 7: Twelve Days of Christmas #LBBill

Day 7 of the #LBBill Twelve Days of Christmas sees us moving on to Clause 5.

Clause 5 is Mark Neary’s original idea, that state bodies should lose the right to make arrangements for where disabled people live away from their existing home without the new arrangements being approved. Approval would have to be obtained in all cases other than arrangements made under the Mental Health Act 1983 when a person is ‘sectioned’

The approval would come from a person with parental responsibility for a child under 16, from a young person or adult aged over 16 if they had the mental capacity to decide where they live for themselves, or from the Court of Protection for a young person or adult who lacked mental capacity to decide where they live. (The cut-off for parental approval is 16 because this is the age from which most of the provisions of the Mental Capacity Act 2005 apply, including the presumption of capacity and the supervision of the Court of Protection for those who can’t make their own decisions).

To make approval meaningful, the disabled person and family members would have to be given specified information about why proposed arrangements are the ‘most appropriate’ available and what other options have been considered. This will help disabled people and family members challenge proposed arrangements which do not meet the tests set out in Clause 4.

There’s an audio introduction to Clause 5 with easy-read images here:

At the moment we do not actually say in Clause 5 that if the necessary approval is not given then the proposed living arrangements cannot be made and the state body will need to support the disabled person in their own home.

We have had some feedback that we should spell this out. Do you agree?

Are there any other changes you would make to Clause 5?

Let us know what you think, on the feedback pages of the blog, on facebook, twitter, or by email. Thank you.