Mental capacity: Alarm over DH plans to extend direct payments

Department of Health plans to extend direct payments to people who lack capacity risk putting recipients at risk due to inadequate safeguards, campaigners have warned.

DH regulations published for consultation last week would place a duty on English councils to provide people who lacked capacity with a direct payment, managed by a third party, once certain conditions had been fulfilled.

Direct payments managers would not face a Criminal Records Bureau check if they were a close family member or a friend who had previously cared for the user. This group would also not need to seek a check from any personal assistant they hired to care for their loved-one.

Robin Van den Hende, policy and campaigns officer for Voice UK, the Ann Craft Trust and Respond, all of which campaign to protect people with learning disabilities from abuse, said this would not safeguard people who lack capacity, including those with later-stage dementia and severe learning disabilities.


He said, although close family should not face a check, friends who had been carers should, saying it was “quite conceivable” that some may be “dubious”.

On not enforcing CRBs on PAs hired by family or friends, he added: “If these CRB checks are not done there will be people who exploit the loopholes.”

The plans follow concerns over the safety of direct payment users after Skills for Care found just half had sought CRB checks from PAs they hired.

Attorneys or deputies

Toby Williamson, associate head of service improvement at the Mental Health Foundation, welcomed the fact that councils would first have to offer the management of the payment to attorneys or deputies already been appointed to manage the user’s affairs.

But should no attorney or deputy be available or willing to manage the payment, councils would have to ask somebody else, after consulting the user’s family and friends.

Williamson said the regulations did not lay out how such a person “would be properly assessed and deemed to be a suitable person”.

Take-up also an issue

However, Williamson also warned that more needed to be done to ensure adequate take-up of direct payments by people who lacked capacity.

He asked: “For many people who lack capacity, who is going to be asking on their behalf for a direct payment? He added: “I would not necessarily anticipate a rush of people unless there’s a considerable amount of awareness raising and training for social workers.”

The regulations also include plans to give councils the power – though not a duty – to offer direct payments to people receiving care under mental health legislation, who currently face a blanket exclusion. The DH said the decision not to place councils under a duty was to give authorities the discretion to withhold direct payments if they thought service users would not comply with their treatment conditions.


However, Williamson claimed this argument was flawed. He said that people with mental health problems should not have to use direct payments to purchase care that was compulsory. But he argued that councils should have a duty to provide direct payments to people under mental health legislation for any part of their care package that was voluntary.

He added: “There’s an unnecessary exclusion being made for people subject to mental health legislation.”

User-led organisation National Centre for Independent Living also raised concerns that the regulations would restrict access to direct payments. It said: “The proposed regulations retain the means for local authorities to arbitrarily prevent some people from accessing direct payments. There are insufficient means for appeal to local authorities to explain their actions.”

The consultation on the regulations ends on 11 November.

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