Report Reveals How Elderly Are ‘Prisoners’ In Care Homes

Tens of thousands of vulnerable pensioners are being forced into care homes against their will, an inquiry reveals today.

It says laws supposed to protect the elderly are instead being used to take away their rights.

The House of Lords inquiry suggests many are dumped in residential homes to make it easier to control them or simply to save money.

Peers blame the scandal on Labour’s botched Mental Capacity Act. They say the law, which was meant to help those unable to make decisions for themselves, should be rewritten.

Lord Hardie, who led the inquiry, said: ‘The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended.’

The retired Scottish judge singled out for criticism the ‘deprivation of liberty safeguards’ added to the act after the intervention of the European Court of Human Rights.

‘In some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them, regardless of what actions may be in their best interests,’ Lord Hardie said. ‘We were told the provisions were poorly drafted, overly complex and bureaucratic.

‘A senior judge described the experience of trying to write a judgment on the safeguards as feeling “as if you have been in a washing machine and spin dryer”.’

The 2005 legislation set up the Court of Protection, which is only now being opened to public scrutiny after a series of scandals.

Under a veil of secrecy, it has ordered people to be kept in care homes. In other cases, social workers have acted without legal go-ahead.

It is thought many of the pensioners could have stayed at home or in sheltered accommodation.

 

 

 

Councils often find care homes cheaper than looking after complex cases in their own houses.

The report also pointed to the way the act was used by social workers as an excuse for not helping people – and thereby saving money.

A provision in the legislation says people must be presumed to be able to make their own decisions unless there is clear proof they are incapacitated.

The report said one academic thought this had led to ‘vulnerable adults being left at risk of harm, in some cases leading to their deaths’.

In one case, a brain-damaged girl was left to be sent out by her boyfriend to work as a prostitute for drug money because social workers considered the law made this a legitimate ‘lifestyle choice’.

The report quoted a law firm which said the act had become for councils ‘an excuse to do nothing’.

The British Association of Brain Injury Case Managers told the nine-month inquiry: ‘Assessment of capacity is used as an economic tool to justify lack of provision, leaving the disabled person unprotected.’

The Law Society said people were left without help because ‘the outcome is going to be that the state spends less on them’.

The peers concluded that the act’s rules are ‘used to justify non-intervention by health or social care services, either erroneously, or in some cases, deliberately’. Among 39 recommendations, the report called for the scrapping and rewriting of the clauses on deprivation of liberty.

It also said the code of practice, the semi-legal document that tells social workers, doctors and lawyers how the act should work, should be torn up and replaced with a series of simpler codes.

The report also supported the opening of the Court of Protection to scrutiny and repeated demands for more openness from the judge in overall charge of its workings, Sir James Munby.

It said: ‘We believe that the reputation of the Court will improve with greater transparency.’

A permanent ‘independent body’ – in other words a quango – should be set up to oversee and monitor the workings of the law, the report said.

Lord Hardie said: ‘The act is not working at all well. That is because people do not know about the act, or do not understand it, even though many professionals have legal obligations under it.

‘Those who may lack capacity have legal rights under the Act, but they are not being fulfilled.’

The 2005 act was passed by Prime Minister Tony Blair and his Lord Chancellor Lord Falconer only after a rebellion by backbench Labour MPs and in a rush in advance of the election.

The Daily Mail campaigned against it, particularly those sections which allowed people to draw up ‘advance directives’ which could instruct doctors to kill them if they became too ill to speak for themselves.

A separate report released yesterday found that town halls are penalising the elderly by slashing vital services such as home helps rather than saving money through improving efficiency.

Official auditors found that massive cuts of 12 per cent in the last three years are placing families and hospitals under ‘intolerable pressure’.

The National Audit Office said most of the ‘significant’ drop in spending came from cuts.