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.

What’s next for the #LBBill?

Despite the hard work of our supporters it is now clear that there will not be a sponsor for #LBBill from this year’s private members’ bill ballot. None of the top seven MPs who were the focus of our efforts seem to have a real commitment to disability rights and all have chosen to adopt other causes.

This is of course a huge disappointment for everyone, but we always knew changing the law to help make a reality of disabled people’s right to live in the community with equal choices would probably take some time. We will be back for the 2016 ballot armed with the knowledge gained from this year (see some initial thoughts below).

We don’t have to wait until next June though. We are expecting two other developments that could give us a chance to get the ideas in #LBBill into law:

1. The Law Commission (the official body responsible for improving and updating the law) has just published its consultation paper on a new scheme to govern ‘deprivations of liberty’, cases where disabled people are subject to continued supervision and control and are not free to leave where they live. In developing their thinking the Law Commission team have shown a real interest in #LBBill and a number of our ideas our featured and discussed within the consultation. We now need you all to respond to the consultation to ask the Law Commission to adopt as many of the #LBBill principles as possible in their draft legislation. As the Law Commission has an excellent strike rate at getting its draft bills adopted this could be an excellent route to get the #LBBill ideas into law.

2. The new Care Minister, Alistair Burt, has confirmed that there will be a response to the ‘No Right Ignored’ Green Paper in the autumn. The Green Paper has been criticised by some (see the response from People First England) but it did put forward a version of some of the ideas from #LBBill. After the summer we will be pressing the government to introduce legislation in line with #LBBill as its response to the Green Paper, that was what we asked for in the campaign response and we know Inclusion London also asked for this, we hope other individual supporters and organisations did too. We hope people will lobby their MPs about this when they return in September.

So what have we learned from the process of trying to get a sponsor for #LBBill after this year’s private member’s bill ballot? Here are some initial thoughts:

1. The supporters of #JusticeforLB and #LBBill continue to be brilliant in their passion and commitment to the cause. 337 MPs were contacted, with many of you managing to get your MPs engaged and willing to discuss the issues in the Bill. Unfortunately none of these MPs won the ballot this year, which is the nature of a lottery like this.

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2. With some notable exceptions, MPs are not yet ready, willing and/or able to engage properly with online campaigning. The level of response to tweets to MPs was low. MPs did better with email, but even then a surprising number of emails from constituents went ignored. Lots of others to Conservative MPs got identical template responses, which on the plus side at least means we got their attention sufficiently for someone to produce a template! We may need more offline campaigning next year. If people turn up to MPs’ surgeries in person they are a lot less easy to ignore than an email or tweet.

3. We almost certainly need to start earlier, and we could make use of some of the Parliamentary processes like All Party Parliamentary Groups to help get MPs ‘warmed up’ to the Bill before they get lobbied by their constituents. Of course, next year we will have the benefit of all this year’s work to build on.

4. None of the big disability organisations have really got behind the Bill. The National Autistic Society and Mencap sent a tweet each in support, but as far as we know that was the limit of the big charities’ public support. By contrast there has been brilliant active support from some disabled people’s organisations and individual disability campaigners. Would active support from the big charities have made a real difference this time? We’ll never know, perhaps we’ll find out in 2016.

5. There are fewer disability champions in the House of Commons that you might expect, and certainly fewer than we need. As such we all have a responsibility to make sure our MPs know that disability rights issues must be a priority.

So the struggle will continue into 2016 and beyond. But hey, why should we expect to change the law in short time when it’s taken two years to get precisely zero justice for LB himself?

All comments and suggestions on next steps are welcome below. You can also post any ideas here about the content of Draft 2 of the Bill or email us. We would very much appreciate events being held by local groups to discuss the Bill in the coming months, all the resources you should need are here.