Understanding Of Law And Recognising Its Limitations Social Work Essay
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Published: Mon, 5 Dec 2016
“[For social workers] to practise effectively it is necessary to have a critical understanding of law and to recognise its limitations alongside it strengths” (Wilson et al, 2008: 191). Using the case study of Mr A, this essay will outline the legislation regarding statutory duties and guidance which needs to be understood by service providers. It will also critically analyse and explore the issues relating to funding Mr A’s accommodation and safeguarding requirements.
There are numerous acts and guidance that need to be considered which make this a complicated exercise. The first is the Chronically Sick and Disabled Persons Act, 1970 s1 which requires local authorities to be aware of the number of disabled people in their boundary in order to plan and develop provision of services. Furthermore, under s46 of the National Health Service and Community Care Act, 1990 they have a responsibility to publish a plan of community care services provided.
As Mr B is the carer, the Carers (Equal Opportunities) Act, 2004 requires Countyshire to inform him of his entitlement to a Carer’s assessment (Wilson et al, 2008). Whilst Mr A lived with his brother, Countyshire would have a statutory duty under the NHSCCA (1990) and the Carers (Recognition and Services) Act, 1995 to assess Mr B’s needs as main carer for his brother as Mr B is ‘ordinary resident’ there. The Carers and Disabled Children Act (2000) gives Mr B the right to request an assessment even if Mr A is not involved with care services. Local Authority Circular (2004)24 s2 outlines good practice for Mr B’s involvement in his brother’s assessment process.
For Mr A, under s47 of the NHSCCA (1990), Countyshire would have a statutory duty to assess his needs while he was living with his brother and a further duty under the policy guidance, Fair Access to Care Services 2002, issued under s7(1) of the Local Authority Social Services Act 1970, to decide within a reasonable time, what community care services should be provided to meet his needs (DOH, 2010).
The legislation is complex for providing services, including accommodation, for Mr A. There are overlapping and conflicting obligations and a detailed history for Mr A is lacking. This highlights the need for a thorough assessment by a Social Worker and the appropriate sharing of information between the local authorities concerned. Because funding care is expensive authorities may hide behind the complexity of the law to evade their responsibility.
As Mr A was detained under s37 of the Mental Health Act, 1983 (as amended by Mental Health Act, 2007) he would, upon leaving hospital under s117 MHA (1983), receive free after-care services for his mental health for as long as is required. As Mr A was detained in Ashire, that Local Authority, Local Health Board and Primary Care Trust are responsible for financing any after-care services (DOH, 2008 and Barber et al, 2009).
After-care services under s117 of MHA (1989) would not be withdrawn from Mr A if he declined them, or Ashire discharged him from care. Even if Mr A was well settled in the community, he may continue to need after-care services in case of relapse or mental health deterioration. They would only be withdrawn if Ashire local authority, Mr A and the PCT agreed that he no longer needed them (DOH, 2008). If such an agreement was made by Ashire then Mr A would be unable to get after-care free under s117 of MHA (1989) but would need to be assessed under s47 of the NHSCCA (1990) for Countyshire to provide care under the National Assistance Act (1948).
The MHA (1983) does not define what aftercare is, however it is accompanied by a Code of Practice, 2008, which, although not statutory is regarded as guidance, as confirmed in the case of R (Munjaz) v Mersey Care NHS Trust (2005) (Brammer, 2010 and Barber et al, 2009). The Code of Practice under 27.13 provides a list of areas to be considered in an assessment which the Social Worker, with Mr A, should include in the written after care plan (DOH, 2008).
There have been numerous disputes between local authorities over the definition of ordinary resident, within s24 of the NAA (1948), and resident in s117(3) of the MHA (1993), and, therefore, which authority is responsible for funding a person’s residential care. The recent publication Ordinary Residence by the Department of Health and the case of R (on the application of M) v. London Borough of Hammersmith and Fulham and Another; R (on the application of Hertfordshire County Council) v. London Borough of Hammersmith and Fulham (2010) have provided clarity and guidance for practice confirming that for the purposes of s117 MHA (1983) aftercare, s24(5) of the NAA (1948) does not apply (RadclifeLeBrasseur, 2010). In the case of Mr A, if he is still under s117 MHA (1989) the duty to provide after-care services, including accommodation, would remain with Ashire as the local authority where he was detained even though he is living in Countyshire (DOH, 2010).
Countyshire, under s24(3) of the NAA (1948), initially placed Mr A in the residential home to provide respite for his brother. The home is registered for residents with dementia and physical disabilities. Upon the decision to stay there permanently, Countyshire would have a common duty to re-assess Mr A to ensure the home is appropriate for his needs. If it is not part of Mr A’s care plan to provide appropriate accommodation for his mental health then Countyshire would need to fund his accommodation, under s21 of the NAA (1948). Mr A would also meet the criteria under the NAA (1948) s29(1) for his domiciliary care services to be provided by the local authority. NAA (1948) s29(4) with LAC (93)10 also outlines what care services should be considered and s2 of the CSDPA (1970) gives the local authority the power and duty to provide such services. If the accommodation is provided for Mr A’s health needs, the NHS are responsible as the local authority is not able to provide health services as defined in s21(8) NAA (1948).
If Mr A funded his own accommodation he would be classed as a ‘self-funder’ and require an ordinary residence with Countyshire, in line with the “settled purpose” test in Shah v London Borough of Barnet (1983). NAA (1948) s22(2) allows Countyshire to charge Mr A for the accommodation. When carrying out the financial assessment they must use the National Assistance (Assessment of Resources) Regulations (1992) in conjunction with Charging For Residential Accommodation Guide, which is updated annually (DOH, 2010).
At present there is no specific legislation in England for vulnerable adult protection. The law regulating the safeguarding of vulnerable adults is taken from a number of relatively recent policies, guidance and case law (Clements and Thompson, 2007). Safeguarding has only recently become recognised as an area of work in its own right. It is an increasingly important part of a Social Worker’s responsibilities, as policy and guidance has given social service authorities the lead role in dealing with safeguarding issues (Mandelstam, 2008).
The local authority as a public body, under the Human Rights Act 1998 s6, has a duty of care towards its citizens, to protect them from harm and uphold their human rights (Braye, 2010). In Z and others v UK (2001) the European Court of Human Rights found the local authority to be in violation of s6(3) HRA (1998), having failed to take reasonable steps to prevent serious ill-treatment when they were aware of abuse (Clements and Thompson, 2007). Safeguarding Adults procedures should be put in place, in line with HRA (1998), to support a person to live a life that is free from abuse and neglect (ADASS, 2005). As the local authority has been made aware of Mr A’s recent behaviour towards the other residents it is important that they appoint an Investigating Officer and take reasonable steps to prevent any abuse.
The Care Standards Act, 2000 standard 18, stipulates that local authorities and care homes must have a written safeguarding policy which would apply to Ashire, Countyshire and the private care home. Also in 2000, the Department of Health published the No Secrets policy document, which provides guidance to local authorities on how to protect vulnerable adults and implement policies to protect them. The policy requires local authorities to have written multi agency safeguarding procedures and policies (Brammer, 2010). No Secrets is regarded as statutory guidance because the LASSA (1970), s7 requires a local authority to act under such guidance. The case of R v Islington LBC, ex p Rixon (1996), demonstrated that an authority is acting unlawfully if they deviate from the guidance (Mandelstram, 2008).
The Association of Directors of Social Services in 2004, published the Protocol For Inter-Authority Investigation Of Vulnerable Adult Abuse. This protocol with reference to s3.8 of No Secrets (2000) and National Assistance Act 1948 LAC (93)7, clarified the responsibility and actions of the host and placing local authorities with regards to safeguarding. In the case of Mr A, although the residential home contacted Ashire, it would be the responsibility of Countyshire, as the host local authority, to take the lead in safeguarding procedures. However, a link person from Ashire would be invited to attend any adult protection strategy meeting, if it is the local authority funding his accommodation, as it would still be expected to have a duty of continuing care for Mr A (2004: 1-2).
In 2005, ADASS published Safeguarding Adults, providing a national framework for good practice in adult protection work, including giving clear time frames, multi agency working and details of responsibilities (Clements and Thompson, 2007; Brammer, 2010). Whilst following safeguarding procedures it is important for the local authority to keep to the Data Protection Act, 1998. However, No Secrets states, “It is inappropriate for agencies to give assurances of absolute confidentiality in cases where there are concerns about abuse, particularly in those situations when other vulnerable people may be at risk” (2000: 24).
A criticism of the No Secrets policy is that vulnerable adults are defined as people in need of community care services who are unable to protect themselves from abuse so it does not take into consideration people who do not require community care services (Clements and Thompson, 2007). Safeguarding Adults framework introduced the term safeguarding and moved away from the description of protection and vulnerable (Brayne and Carr, 2010). ADASS defined Safeguarding Adults as, “This phrase means all work which enables an adult ‘who is or may be eligible for community care services’ to retain independence, wellbeing and choice and to access their human right to live a life that is free from abuse and neglect” (2005: 5). Using the ADASS definition, the vulnerable adults in this case, would be Mr A, and all the other residents in the residential home, given his current and previous behaviour.
As Mr A is residing at a private residential care home, the home, along with the local authority, will be regulated by The CSA, 2000, supported by National Minimum Standards. Standard 18 of the NMS states that the registered person at the care home needs to ensure that service users are safeguarded from abuse (Clements and Thompson, 2007; Brammer, 2010). The registered person and possibly other care staff from the home would, therefore, be invited to the safeguarding strategy meeting.
Under the Care Homes Regulations 2001, it is the responsibility of the care home registered person to inform the Care Quality Commission (CQC) of any suspected abuse (Brammer, 2010). Hampshire County Council Safeguarding Policy states that although the CQC should be informed and invited to a safeguarding strategy meeting, it is not routinely necessary for them to attend (2010: 52). However, following the CQC Safeguarding Protocol Procedures they should provide any relevant information for the meeting (2010: 11).
Safeguarding Adults framework provide guidance on police involvement; if a crime is alleged to have taken place then they should be involved as soon as possible and decide whether they will be taking action (2005: 34). However, as Mr A has committed no crime, the police may not need to be invited to a strategy meeting. The care-co-ordinator, psychiatrist and GP for Mr A would be invited to attend a strategy meeting (Dorset For You, 2007).
If a safeguarding assessment strategy is decided at the strategy meeting, Mr A, as he is deemed to have mental capacity, could also be involved with the assessment process and his views taken into account. However, Countyshire must act to uphold the human rights of all citizens and as other residents potentially are at risk, this duty will take precedence (ADASS, 2005).
The case of Mr A has shown that although local authority social services have a legal duty and obligation to provide, fund and safeguard the most suitable care, this is a complex task involving an understanding of overlapping and conflicting obligations, from a wide range of primary legislation, secondary legislation, directions, guidance and case laws (Wilson et al, 2008). The case of Mr A supports the Law Commission’s current work to create, under one act, a coherent legal framework for the provision of adult social care similar to the Children Act, 1989 (Law Commission, 2010).
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