bbc.co.uk
Home
Explore the BBC
You and Yours - Transcript
BBC Radio 4
Print This Page
TX: 08.12.03 – LEARNING DISABILITY CAMPAIGNERS VOICE CONCERNS OVER DRAFT MENTAL INCAPACITY BILL







PRESENTER: LIZ BARCLAY


BARCLAY
More than a million people in England and Wales have a mental incapacity to a degree where they are incapable of making decisions for themselves. The MDA - Making Decisions Alliance - a consortium of disability organisations, including MENCAP, Age Concern and MIND, wants the Government to bring in new legislation to benefit those people and their families. Steve Broach, co-chair of the MDA, explains why a change in the law is needed.

BROACH
There's huge confusion amongst the general public, we found that 92 per cent of people wrongly thought that they would have the right to make decisions for family members if a member of their family lost the ability to decide for themselves. And so we know that the carers and professionals are confused and anxious about the situation and that people who lose their capacity are vulnerable to abuse or neglect.

BARCLAY
Steve Broach. So after 14 years of demands for action the Government published the draft Mental Incapacity Bill in June. It aims to close those gaps in the law which mean that carers of mentally incapacitated people have no legal authority to make day-to-day healthcare or financial decisions on their behalf.

However, not everyone is happy with its contents. People First, a campaign group run by people with learning disabilities, argues that the new Mental Incapacity Bill will undermine their independence. Recently the joint parliamentary committee on the draft bill published its views on the Government's proposals and made several recommendations. Its chair is Lord Denis Carter and we invited Andrew Lee, director of People First, to discuss his concerns with Lord Carter, who's keen to see changes.

CARTER
At the moment there is no statutory framework and these decisions are being taken every day by people - by carers, by family, by doctors, by banks, whoever - and the intention is that where these decisions have to be taken, and they clearly have to be taken in certain circumstances where people are mentally incapacitated, that those decisions they have a framework of law to make sure that the best interests of the incapacitated person is looked after, whether it be the family, the carer, the professionals, the doctors whoever.

BARCLAY
Andrew Lee, you're not that happy with the Bill itself, are you, at the moment, why?

LEE
Well we actually see the Bill as a licence to discriminate. The principle sounds good but the thing is, is that on a day-to-day basis people discriminate widely. For example, we know of one of our particular members where they actually had to fight for the right to have the ability just to make their own cup of tea. The Bill doesn't actually say how carers will actually on a day-to-day basis - how are you going to monitor this, are you actually going to go into people's homes to check each choice that they actually make? And I hope that in the recommendations that this section of the Bill is actually taken out, there should be a mandatory right to an independent advocate whenever a person's ability to make their own decision is questioned.

BARCLAY
Andrew let me put that back to Lord Carter. Lord Carter what about Andrew's fears, aren't those valid fears that people perhaps - first of all the monitoring of people's choices on a day-to-day basis won't work?

CARTER
Yeah. What he's talking about is the draft bill and we've made over a hundred recommendations. What we've asked the Government to do in the Bill - and this is the bill which will finally come to Parliament, not the draft bill that we've been reporting on - is to spell out very, very clearly what is meant by the general authority. We've actually asked them to change the words because we think the word authority itself is a little misleading. So in the report, I hope Andrew will be pleased, we strongly emphasise the importance of advocacy, we also emphasise the importance of mediation …

BARCLAY
Andrew are you reassured in any way?

LEE
No I'm sorry. The trouble is, is that there are massive conflicts of interest between people with learning difficulties and people who support or care for people with learning difficulties on a day-to-day basis and in lots of cases these are parents. If I can give you an example. There was a person with learning difficulties, because of their level of learning difficulties was entitled to £300 a week on benefits because of their level of learning difficulty. They were living in a sheltered housing scheme, so on a weekly basis instead of actually being paid £300 a week so that they could get the support that they needed, they were actually surviving on £5 a week. Only through having access to self-advocacy - they were going to their local self-advocacy group - that this actually came to light. The rest of the £295 was being spent on parents' alcohol, cigarettes, gas, electric, telephone bills of their own family home.

BARCLAY
Lord Carter will the Bill address these kinds of issues?

CARTER
It will exactly that. I think this is the problem, Andrew is describing these situations which I think are unforgivable, they are quite disgraceful if what he says is true, which I'm sure it is and that is exactly why we need this framework of statute. For example, in the Bill there are these new powers which are called lasting powers of attorney, not the present enduring powers of attorney, with the deputies appointed by the court and we asked for those deputies to have an express duty of care, the avoidance of abuse and a very strict standard of conduct. These LPAs, what they're called, the lasting power of attorneys, have to be registered. When they're implemented that will have to be recorded with a new court of protection and I think if the cases he described were to come before the Court of Protection there's no way anyone could say that the best interests of the person concerned were being looked after by statute and it would have to be put right.

BARCLAY
Denis Carter and Andrew Lee, director of People First.





Back to the You and Yours homepage

The BBC is not responsible for external websites

About the BBC | Help | Terms of Use | Privacy & Cookies Policy