Community and residential care

Brayne & Carr: Law for Social Workers: 10eChapter 16

Who needs community care?

• Children?• The old?• The ill?• Physically disabled?• Mentally disordered?• Destitute?• Carers?

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

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

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

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

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

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

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

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)

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.

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

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

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

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’

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

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)

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

Direct payments

• Under CCDPA 1996, and 2003 Regulations– Service-user must be assessed for direct payment– Service user can refuse– Not available in guardianship

Other sources of financial support include

• IS• Retirement pension• WTC• DLA• AA• CA• SF• IB• CTB/HB

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

How to assess capacity to make a decision

Can service user • Understand relevant information?• Retain relevant information?• Use relevant information?• Communicate the decision?

If capacity is lacking

• Can the decision be made later when capacity may be regained?

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

If capacity is lacking

And if you act in best interests, • s.5 protects you from legal liability• S.6 permits proportionate restraint

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