Tens of thousands of elderly and vulnerable people must undergo detailed assessments of their mental health within weeks to check if they are being kept in hospital or nursing homes unlawfully, under new human rights laws.New human rights laws, eh? And where did they come from?
The new regulations, triggered by a ruling in the European Court of Human Rights, could lead to care home staff being prosecuted for assault if they try to restrain patients who should be free to leave, or claims of negligence if they come to harm while unsupervised.Just what’s needed...
They could drive small care homes out of businesses as managers struggle to cope with the burden of red tape, it is feared.
The new rules are being brought in on April 1 but the Government has yet to produce the forms required to comply with the scheme, or detailed guidance on how it should be applied.Government incompetence and confusion, leading to lack of preparedness? Say it ain’t so!
On the same date, a new watchdog for the social care sector begins work, called the Care Quality Commission, prompting additional fears that it will be ill-equipped to deal with problems arising from the new laws for nursing homes.That’s becoming a hallmark of this government, isn’t it...?
Anselm Eldergill, a consultant with Eversheds, the leading law firm, and the President of the Mental Health Lawyers Association, said: "A bombshell is about to hit us all, but it hasn't had much publicity because the rules have been so badly drafted. It's going to be absolutely chaotic.
"The Government has pushed it through too quickly and hasn't funded it properly."
The new Deprivation of Liberty scheme, part of the Mental Capacity Act, is being brought in following a ruling in Strasbourg that it is unlawful to deprive a hospital patient or care home resident of their liberty unless it is authorised by a proper legal order.So, we’re going to find that a lot of people are wrongly committed, or they are going to play safe, and release a bunch of people who should be off the streets.
The estimated 50,000 people who lack mental capacity who are living in England's nursing homes and hospitals must all be assessed to see if they have the "qualifying requirements" to keep them there with their movements controlled.
This means that each council must send a doctor and a social worker to every home in the country where they have placed residents, and every Primary Care Trust must do the same in hospitals.Make them liable for any future actions carried out by the person released – that’ll solve the problem...
They must then carry out six assessments of the patient to establish whether they have mental capacity, whether they have a mental disorder and if they need to be deprived of their freedom.
For people who have advanced forms of dementia, severe learning difficulties or problems such as schizophrenia, the assessors are likely to conclude they do need to be kept under supervision and will issue a standard authorisation form.
However in cases where the patient appears lucid, or who may have suffered from mental health problems that are now being treated, the assessors may refuse to issue the form.