Community Care legal columnist Ed Mitchell delivers his verdict on the Law Commission’s proposals to reform adult social care.
The 17th century Scottish writer Andrew Fletcher said: “Let me write the songs of a nation and I care not who writes its laws.” But he never had to grapple with the residential care charging rules or try to secure himself a weekend of respite care.
Clear, intelligible legislation is an essential component of effective democracy and should not be under-estimated. That is why the unexpected next steps in the adult social care law reform project cause concern.
It should be acknowledged that the Law Commission has done a good job. The consultation process was inclusive, active and responsive. Even if you disagree with the commission’s proposals, you were given every chance to have your say.
Importantly, the commission recognised from the outset that this could not be a project to develop lawyers’ law. To achieve its objectives, a new adult social care act needs to be readily understood by those most affected by it.
The possibility that it may not do so has been increased by recent alterations to the plan for giving effect to the commission’s recommendations. The Law Commission is not now going to produce a draft bill. Its work, it seems, is over. It will fall to the UK government (for England) and the Welsh Assembly Government (for Wales) to produce draft legislation.
This is a pity. Application of the commission’s inclusive approach to the legislative drafting process would have helped produce adult social care law that fitted the information needs of its diverse audience.
The success of any legislation depends on the ease of the mental journey as messages pass from legal texts to legislative users’ brains. But legislative simplicity and ease of understanding have not always been government or parliamentary priorities. This is shown by the history of another fundamental piece of adult social care legislation, the Mental Capacity Act 2005.
The draft Mental Capacity Bill was criticised for obscuring its key messages within a mass of text. Fortunately, the bill was put through formal pre-legislative parliamentary scrutiny. A joint committee was established which received evidence from many interested parties who raised their concerns directly with legislators. These external insights resulted in a re-drafted bill built around accessible statements of general principle.
Subsequently, the Mental Capacity Act was amended by the Mental Health Act 2007, to insert provisions providing for a deprivation of liberty safeguards (DoLS) scheme. As any official who has to operate the DoLS scheme will confirm, the impenetrability of these provisions has become almost legendary. Importantly, they were not road-tested in the same way as the original Mental Capacity Bill.
The project for reform of adult social care law has started well. It is important that the implementation phase is carried out in the same spirit.
Both the UK government and the Welsh government should give commitments to allow formal pre-legislative scrutiny of a draft bill. Otherwise, the Law Commission’s good work risks being undone.
Further coverage of the Law Commission’s report
‘Service users should get direct payments for residential care’
Keep up to date with the latest developments in social care Sign up to our daily and weekly emails