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.