Extending direct payments to people who lack capacity

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One year after people who lack mental capacity were given the right to use direct payments, Mithran Samuel finds take-up is disappointing

People who lack mental capacity have been able to use direct payments for the past year – but safeguarding bodies have warned the new system could leave vulnerable people open to abuse.

They were dismayed that Criminal Records Bureau (CRB) checks were not required when personal assistants were hired to care for people who lack capacity.

This applies in cases where a payment is being managed on the service user’s behalf by a family member or a friend who had been a carer, as opposed to someone with a more distant relationship to them.

While direct payment users in England who have capacity can hire a PA without a CRB check, adult safeguarding charities such as the Ann Craft Trust, Respond and Voice UK felt more regulation was needed, given the vulnerability of those who lack capacity.

One year on, Ann Craft Trust chief executive Deborah Kitson is unaware of any safeguarding issues. But she remains adamant that the law ought to be tightened to mandate CRBs for PAs in such circumstances.

“Perpetrators will gravitate towards the opportunities [for abuse],” she says. “My feeling is that, for the family carers’ sake, it’s quite awkward to ask the next-door neighbour to be checked. If it were mandatory it would be ‘I’m really sorry but you’re going to have to be checked’.”

Peter Morgan, chair of the Practitioners’ Alliance Against the Abuse of Vulnerable Adults, says there are success stories of personal assistants working with people who lack capacity. In such cases there is a key role for social workers to play in monitoring arrangements to pre-empt safeguarding issues. “That’s where social work skills come to the fore, assessing that level of need and coming up with a proportionate response,” he says.

Though safeguarding has been the main difficulty surrounding the hire of PAs for people who lack capacity, sourcing enough specialist staff has presented further problems.

This can be difficult for people with profound and multiple learning disabilities, says David Congdon, head of campaigns and policy at Mencap. “We have come across cases where it’s been hard to recruit people with specialist skills for very individualised services,” he says.

Support for extension

Mencap strongly backed the extension of direct payments to clients lacking capacity, but Congdon fears carers managing payments have not received enough support to make it work.

“If you have a situation where you need to arrange staff to cover 24 hours a day, seven days a week, you’re running a mini-business,” he says. “For many carers it’s too much hassle.”

Besides people with profound and multiple learning disabilities, another client group the regulations were intended to help were people with dementia.

Since 2009, the Mental Health Foundation has been running a Department of Health-funded project, Dementia Choices, looking at how care recipients with the condition can achieve more choice and control. Bury is one council taking part in the project. Three of its clients with dementia are on direct payments so it is working with the foundation to increase its understanding of the barriers to and benefits of self-directed support for others.

Toby Williamson, head of development at the Mental Health Foundation, says little progress has been made nationally since the regulations came into force: “Though the number of people with dementia with self-directed support varies, in the areas we’ve looked it remains low.”

There was also low awareness among families that they were entitled to a direct payment. It is possible that social workers and council managers may be unaware that the law has changed, says Williamson.

While it seems the worst fears of the critics of extending direct payments to people who lack capacity have not realised, the same applies to the best hopes of the policy’s advocates.

Checks and balances

Regulations implemented in November 2009 under the Health and Social Care Act 2008 specify that:

● Councils must offer a direct payment to people who lack capacity, managed by a “suitable person”.

● In the first instance, councils should approach people appointed to manage the affairs of the service user, such as deputies or attorneys.

● Suitable people who are close family or friends who were previous carers of the service user do not need a CRB check to perform the role, nor would they need to seek a check from any personal assistant they hired.

Also in this special report:

Safety versus choice: the regulation of personal assistants

A dating-agency style matching of PAs to budget holders

Alex Fox on why personal assistants should band together

Related articles

Charity bids to boost personalisation for those with dementia

Charities issue rape warning over direct payments extension

Alarm over plans to extend direct payments to those lacking capacity

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