Community and residential care Brayne & Carr: Law for Social Workers: 10e Chapter 16.
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Transcript of Community and residential care Brayne & Carr: Law for Social Workers: 10e Chapter 16.
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Community and residential care
Brayne & Carr: Law for Social Workers: 10eChapter 16
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Who needs community care?
• Children?• The old?• The ill?• Physically disabled?• Mentally disordered?• Destitute?• Carers?
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Two key concepts
• Community care duties of SSD are those that are listed under LASSA sch. 1
• Starting point for making/altering provision of community care is an assessment under NHSCCA s.47
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Who is the service user?
• Mental capacity issue - the person asking for a service is not necessarily the statutory service user. Who agrees to receive what service?
• A carer is a service user in her or his own right
• The carer who is a child is also a child in need under the Children Act 1989
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Some more key concepts
• Carers’ needs must be assessed and met• Some assessed needs must be met; some
assessed needs may be met• Social services may secure - need not
provide• Service users may be offered direct payment
in cash to buy service• Service users’ means irrelevant to
assessment - but charges levied
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Overview of the range of services for the range of service users
• NAA - residential care• NAA - services in the community for the
disabled• HSPSA - support for older people• NHSA - support for expecting
mothers/mothers of under fives, discharged patients
• MHA - after-care/guardianship of mental patients
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Community care planning and co-ordination
• NHSCCA s.46 - need for overall plan• Co-operation with NHS under NHSA s.22,
MHA s.117, Community Care (Delayed Discharges) Act
• Liaison with housing department and voluntary organisations under s.46
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Local authority will have the following schemes for support within community - 1
• Departments must provide these schemes:– Support and advice for the disabled – Support, home help, training or occupation
facilities for mentally or physically ill, pregnant women, elderly people
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Local authority will have the following schemes for support within community - 2
• Departments may provide these schemes:– Recreational, holiday, travel, accommodation
help, sheltered accommodation and training for the disabled
– Wardens, meals on wheels, laundry for the elderly
– Care/residential accommodation for expectant mothers and mothers of under fives
– Training, recreation, day centres, respite care etc for physically ill or mentally disordered
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Hierarchy of aims following assessment
(a) support so that the service user can live at home;
(b) move to more suitable accommodation;
(c) move to another household;
(d) move to residential care;
(e) move to a nursing home;
(f) long-stay hospital care.
(DoH Policy Guidance)
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Assessing the individual
• Within any relevant National Service Framework
• Taking into account (circular 92(12))
- Capacity/incapacity;
- Preferences and aspirations;
- The living situation;
- Support from relatives and friends; and
- Other sources of help.
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Assessment according to priority - 1
• Fair Access to Care Services, look at problems with health, control over environment, abuse/ neglect, personal care/domestic routines, work, education or learning, vital social or family relationships and categorise each need as– Critical– Substantial– Moderate– Low
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Assessment according to priority - 2
• Authorities then decide at which level needs will be met and assess each need of each individual against the above criteria
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Meeting individual assessed needs
Duty to meet assessed need• Assistance in home, access
to facilities, holiday, meals, communication aids for disabled service user under CSDPA s.2
• Home help and laundry for older people, disabled, mentally disordered or physically ill under NHSA sch 8
Power to meet assessed need• Sheltered employment
for disabled under DPEA s.3
• Meals, home assistance, help with finding accommodation for older persons under HSPHA s.45
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Residential care - 1
• Overlapping responsibility with housing department – can need be met without residential care, in particular via Supporting People
• Duty to provide residential care under NAA s.21 if required because of ‘age, illness, disability or any other circumstances’
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Residential care - 2
• Choice available to resident• Asylum seekers’ needs can be met so long
as need is for care, not just for economic reasons
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Some case law examples - when things go wrong
• Bernard v Enfield (2002)• R v Sefton MBC ex p Help the Aged (1997)• R v Gloucestershire County Council, ex parte
Barry (1997)• (R v Kirklees MBC, ex parte Daykin (1997)• R (L) v London Borough of Barking and
Dagenham (2001)• R v North and East Devon Health Authority,
ex parte Coughlan (2001)
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Charging for services
• Community and residential provision must be made regardless of means
• Charges levied according to means (HASSASSA s.17; NAA s.22)
• After-care (including residential care) under MHA must be free
• No charge for health care element of residential care
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Direct payments
• Under CCDPA 1996, and 2003 Regulations– Service-user must be assessed for direct payment– Service user can refuse– Not available in guardianship
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Other sources of financial support include
• IS• Retirement pension• WTC• DLA• AA• CA• SF• IB• CTB/HB
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Mental Capacity
Basic principles• Presumption of capacity• Individuals to be supported to make own
decisions• Decisions by persons with capacity need not
be wise• All decisions made for a person without
capacity are in their best interest• Intervention should minimise restriction
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How to assess capacity to make a decision
Can service user • Understand relevant information?• Retain relevant information?• Use relevant information?• Communicate the decision?
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If capacity is lacking
• Can the decision be made later when capacity may be regained?
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If capacity is lacking
• Service user can still participate in decision making
• Wishes and values (present or previously stated) to be taken into account
• Views of others to be taken into account
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If capacity is lacking
And if you act in best interests, • s.5 protects you from legal liability• S.6 permits proportionate restraint
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Mental incapacity of service user
• Removal from home under NAA s.47- district council medical officer applies to magistrates court
• Lasting Power of Attorney• Application to Court of Protection• Advance decisions on treatment• Role of Independent Mental Capacity
Advocate