‘Social care can be complicated – but it may be wrong to create new rights’

By Toby Williamson, Mental Health Foundation

Implementing a new law in social care probably always results in some practitioners and managers reaching for the paracetamol. I’m sure the Care Act is no different but when it comes to putting it into practice regarding direct payments for people who lack capacity to request them, the painkillers might have to be ordered in bulk.

And on top of this we’re also in the middle of a consultation involving proposals for new rights and duties to try and address the issue of inappropriate detentions in hospital involving people with learning disabilities and autism.

Direct payments and mental capacity

So what are the challenges facing practitioners? At the Mental Health Foundation we undertook a research project, in partnership with Bristol University, to find out how guidance on implementing direct payments for people who lacked capacity to consent to them was being used by social care practitioners and carers.

Perhaps unsurprisingly the research found that the intersection between a very specific form of care delivery (direct payments), the law (Mental Capacity Act), and the complexity of people’s lives (including both family/friends, and people with severe cognitive impairments), posed significant challenges to practice.

Guidance, in the form of a linear narrative, did not always reflect the actual process. Instead practice actually often involved several, often parallel tasks such as support planning, assessing capacity, making best interest decisions, working with both service users and families, etc.

For this reason the Foundation developed a free online resource and apps where information about key tasks in the process could be navigated through links and pop up explanations of relevant terms and concepts. Terms covered include ‘mental capacity’, ‘care and support plans’, ‘best interests’, and ‘authorised person’ (the third party who manages a direct payment on behalf of the person who lacks capacity).

Although the resource is up to date with the statutory guidance for the Care Act it does use the term ‘indirect payments’. This is not a term used in the guidance but the research noted that it was a term that was commonly used by practitioners. It was also seen to be helpful in signifying the important differences between delivering a direct payment for people who lacked capacity to request them and other direct payments service users.

Learning disability consultation

The right to a direct payment was partly the product of effective campaigning by people using social care services. The recently published Government consultation, No voice unheard, no rights ignored –  a consultation for people with learning disabilities, autism and mental health conditions’ was also partly the result of a very effective social media campaign by families and supporters involved in the “Laughing Boy” Bill #LBBill Campaign. The government consultation closes on Friday 29 May.

Like direct payments did for the issue of people not having choice or control over the social care they received, the consultation addresses the pressing issue of inappropriate detention of people with learning disabilities and autism in hospital.

As a solution it proposes new rights and duties for health and social care services, as well as amendments to the Mental Health Act. But unlike direct payments, which aimed to fill a glaring gap in terms of people’s rights, more legislation involving decisions about care and care settings where legislation already exists is likely to be confusing and overlap with current laws. It also risks potentially distracting from ensuring those laws are properly applied.

Only a few weeks ago a House of Lords debate saw the government criticised for not doing more to raise awareness and improve understanding of the Mental Capacity Act (which bizarrely, is barely mentioned in the learning disability consultation paper). The Deprivation of Liberty Safeguards (and their interface with the Mental Health Act) is causing enough complexity for practitioners as it is (and are subject to review by the Law Commission in any case). And of course, the Care Act has just come into force as well.

The Foundation campaigned vigorously for mental capacity legislation, as well as being involved in the debates about reform of the Mental Health Act. I personally have a great belief in the importance of rights in ensuring people have access to decent services.

However this really feels like a case of over-egging the legal cake, at enormous potential expense and disruption.

Unnecessary detention in hospital is certainly a very serious issue, and a potentially scandalous one where abuse or a death is involved. There may be a case for tightening existing legislation but decision making involving the lives of people with severe cognitive impairments comes under existing and new laws. And this applies equally to people with dementia in residential care (which the consultation doesn’t address although they may also be detained under the law).

Let’s not ignore existing rights. Let’s make sure current laws work as they were intended and there are the services available to enable choices to be made that truly reflect the wishes of the person and their families, as (in)direct payments have often been able to do, before creating new legal headaches.

Toby Williamson is Head of Development & Later Life at the Mental Health Foundation. The indirect payment apps mentioned above can be downloaded from the Apple Store (for iphone) or Google play (for Android devices).