Direct payments and mental capacity

Draft legislation aims to allow third parties to receive direct payments to purchase services for those unable to give consent, says Ed Mitchell (pictured)

What is the issue?

A key objective of the Department of Health’s personalisation agenda is to increase uptake of direct payments. The Health and Social Care Bill (clause 138), currently before parliament, would if passed remove some existing barriers.

What’s wrong with the existing direct payments legislation?

Section 57 of the Health and Social Care Act 2001 requires a service user to “consent” to receiving direct payments, instead of the direct provision of community care services.

This means that direct payments are not possible where a person does not have the formal mental capacity to consent to them. As a result, many service users with learning disabilities or poor mental health have not been able to access direct payments.

How would the Health and Social Care Bill deal with the capacity difficulty?

The Bill would allow for direct payments to be made to a third party instead of a service user lacking capacity. This would be subject to a condition that they are spent on purchasing services to meet a service user’s assessed needs.

Aren’t there risks in making payments to a third party?

Yes. This is why the Bill provides for conditions to be met before a third party would be authorised to receive direct payments.

Under the Bill, some third parties will automatically be able to receive direct payments. This would include deputies appointed for service users under the Mental Capacity Act 2005, provided that they fall within a description to be specified in regulations.

Normally, however, councils will have to approve third parties as suitable. Regulations could require family members to be consulted before a person is approved. Criminal Record Bureau checks and checks of the barred lists held by the Independent Barring Board (to be established under the Safeguarding Vulnerable Groups Act 2006) could also be required.

Additionally, third parties who misuse direct payments would be liable to repay them to the local authority concerned.

Could voluntary organisations receive direct payments?

Yes. Under the Bill, there is nothing to prevent direct payments being made to voluntary organisations in order for them to purchase the care services required by a service user. Existing direct payment support groups may well wish to expand their operations to include (in due course) direct purchasing of services on behalf of clients.

How can service user involvement be secured?

Conditions could be imposed on the use of direct payments. These could require service users to be consulted, and otherwise involved in, decisions taken about the services purchased by a third party with the direct payment.

Do these changes apply in Wales?

Yes, they do, but under the Bill the Welsh ministers of the Welsh assembly government are to decide when the new arrangements are to come into force in Wales. For England, the health secretary decides.

What are the key implications for local authorities?

Clearly, all local authorities need to prepare for far greater numbers of service users receiving services purchased through direct payments. In addition, they will need to establish procedures for authorising third parties to receive direct payments.