Relatives & Residents Association

We support, inform and speak on behalf of older people in care


Privatizing liberty?

5 October 2018: The R&RA is alarmed at the proposals by the Department of Health and Social Care to remove some basic safeguards and radically change the independent element when care home residents lack mental capacity.

The Mental Capacity (Amendment) Bill* now going through Parliament leaves those residents with restricted mental capacity more open to abuse. These vulnerable residents now form an increasingly high proportion of older people in care homes.

this potentially creates a conflict of interest and risks a return to the state of arbitrary detention

Currently, local authorities must appoint highly trained professionals, Best Interest Assessors (or BIAs) to assess whether a person should be deprived of their liberty or whether it should be restricted due to their lack of mental capacity to make their own decisions, as in cases of dementia or other debilitating conditions.  Under the present system, the BIA is not employed by care homes and is completely independent in the assessments they make. The BIA is solely concerned with determining what is in the best interest of the individual person and to find the least restrictive solution for them.

The new Bill moves the responsibility for these crucial assessments to the care manager. This creates a clear conflict of interest.  There is a serious risk of perverse financial incentives, it means that the people responsible for keeping their care homes full may well also be responsible for recommending that the home they manage is the most appropriate placement.

During the July debate, Lord Hunt stated: “The Relatives & Residents Association, which has a helpline that receives lots of calls from anxious relatives and friends, points out that currently, families can be in conflict with the care home when the resident and their next of kin or lasting power of attorney may wish to move elsewhere, about who may or may not visit, and about whom they may or may not wish to see.”  

I think it takes someone who believes in fairies to think it is going to work

In addition, he said“the Bill leaves the detainer determining whether the conditions for detention are met, and this potentially creates a conflict of interest and risks a return to the state of arbitrary detention.” 

Although the assessment by the home’s manager must be “signed off” by the local authority, the current professional independent scrutiny will no longer be in place.  Judy Downey, Chair of the R&RA, was interviewed on 4 October 2018 about the new Bill’s proposals, on Radio 4’s “You and Yours”.Judy said that an underlying assumption is tha“Local authorities will sign off with great care and attention. Given the state of local authority resources at the moment, I think it                                        takes someone who believes in fairies to think it is going to work.”


Listen to the You And Yours interview here

Read our Briefing Note here

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