Referring to case study 2: Helen, a 78 year lady, a Section. 2 and a Section. 5 of The Community Care Delayed Discharges Act 2003 have been issued and Social Services have 72 hours before they are cross charged. This Act penalises local authorities who cannot provide for discharged hospital patients, as it ensures NHS patients receive adequate care when being discharged from hospital. It sets out timescales which Social Services have to comply with and if there is a delay in discharge whereby Social Services are to blame they will be cross charged £100.00 per day under s.6 of the ‘Liability to make Delayed Discharge payments’. This is the main provision of this Act along with on-site multi-disciplinary working. However, if the delay in service provision is down to the NHS then reimbursement does not apply and if during this process there is a dispute then this is under s.9, ‘Dispute Resolutions’ of the CC(DD)A 2003.

The law states that if a s.2 and a s.5 of CC(DD)A 2003 have been issued together then the process is as follows:

“This section applies where a section 2 notice has been given. Subsection (2) ensures that the NHS body responsible for issuing the section 2 notice to the social services authority, and any other NHS body which may need to provide services to the patient upon discharge, must consult the social services authority before deciding which services it will make available upon discharge. This is to ensure that a complete package of care can be put in place smoothly and without duplication or omission of any particular service. The responsible NHS body will in the first instance normally be a hospital but the majority of NHS services upon discharge are likely to be provided by the patient’s Primary Care Trust. The social services authority must be consulted about all NHS services that are to be provided”

The first step in the case of Helen would be to have a statutory meeting with the social services manager to discuss Helen’s situation and to establish the legal framework and service delivery to be applied. The NHS and Community Care Act 1990 (NHSCCA) was enacted as a result of unfair treatment of older people, as it gave them the right to an assessment to services. The main principle and rational of the NHSCCA 1990 is to provide people with relevant services to enable them to live independently in their own homes, rather than moving them into a residential setting. Although this piece of legislation is considered to be complex it has a number of powers and duties imposed on local authorities.

The primary role of local authorities with community care responsibilities is to ensure that:

Adult social care is delivered effectively

Services users wishes are taken into account, and

Services are delivered safely (Brayne & Carr, 2010:508).

The main statutory duty for social workers of the NHSCCA 1990 is Section 47. Under s.47 (1) as social workers we have a duty to do a needs lead assessment and this is a must in the case of Helen. The National Service Framework for Older People provides a framework for health and care services for older people, and this is an important development whereby social work assessments are integrated with health care assessments. As the duty social worker when doing an assessment there are two aspects that should be considered. First, there is the assessment of Helen’s needs not wants; second, bearing in mind the outcome of that assessment, the decision to provide (or not) particular services. However, during the NHSCCA 1990 s.47(1) needs lead assessment, if Helen is identified as being ‘disabled’, she has additional rights as set out in s.47(2). During this assessment the local authority must, under s.47(3)of the NHSCCA 1990, inform the Health or Housing authorities if it appears Helen may require services which they could provide (Braye & Preston-Shoot, 2010).

The roots of social care and social work lie in the National Assistance Act 1948 (NAA). Section 29, Part 3 refers to specific groups such as older people and to qualify for services under this Section the law states:

“A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister (www.legislation.gov.uk/ukpga/Geo6/11-12/29/section/29).

It is clear that where there is a legal statutory duty, you have to consider the implications of accountability within the social work profession and this in turn can cause tensions between legal framework and the General Social Care Council’s codes of practice. For example, it is difficult to reconcile the values of anti-discriminatory and anti-oppressive practice with some of the terminology utilised in the National Assistance Act 1948, such as deaf or dumb. However, as Helen’s needs meet this definition, as she is considered to be a s.29 service user and any provisions for Helen will be made under The Chronically Sick and Disabled Persons Act 1970 s.2.

“This places a duty on local Authorities to assess the individual needs of everyone who falls within Section 29 of the National Assistance Act 1948” (Brammer, 2010:402).

In addition older people can be offered residential care under the National Assistance Act 1948 s.21 and home care and laundry services under the National Health Service Act 2006 Schedule 20(3). Under s.2 of the CSDPA 1970 the provision of welfare services, local authorities are required to provide services such as an occupational therapist (OP). The OP can do functional assessment to establish the provisions required and to aid in the transition from hospital to the home. The main provisions do not include personal care but assesses how the service users’ function, for example get dressed, and get out of bed in hospital or at home. The fundamental rational is to power and enable the service user to get back to their former ability.

The Health and Social Services and Social Security Adjudication Act 1982 s.17, provides local authorities the power to make reasonable charges for non-residential services. Under this legislation the first six weeks of intermediate care is free, NHS is free at delivery social services is not. Intermediate care or reablement is a term used to represent a range of integrated health and/or social care services that as part of an agreed care plan aim to:

Promote faster recovery from illness

Prevent unnecessary admission to hospital

Support timely discharge following an acute hospital admission

Prevent premature admission to long-term residential care

Maximize your chances of living independently (www.ageuk.org.uk ).

It was introduced to bridge the gap for people who were medically fit for discharge but were unable to return to independent living. Reablement typically it lasts for no more than six weeks and is provided without charge to the service user. Helen will receive the reablement service for six weeks and if further support is required, then Adult Social Care services may be chargeable.

“Research evidence confirms that reablement schemes are well placed both to meet the preferred outcomes of service users and to achieve cost effectiveness in service delivery, when compared with alternatives such as longer term care” (Braye et al., 2004: 113).

Once a community care assessment is carried out, we need to make decisions about what support will be provided for Helen. Helen would be required have a financial assessment by a Financial Assessment Benefits Advisor (FABA). The FABA will carry out an assessment on Helen’s financial situation and ensure she is claiming any state benefits she may be entitled to. They will need to see proof of her income and, savings and will ask for details about her expenses. This assessment is straightforward and the officers will try to make it as pleasant as possible.

National guidelines published by the Department of Health called ‘Fair Access to Care Services’ (FACS) provides Social Services with an eligibility framework for Adult Social Care to identify whether or not the duty to provide services under this framework. The national FACS policy states that local authorities may take account of the resources available to them in deciding which needs to meet. FACS divides need into four categories: critical, substantial, moderate or low. Thus the concept of need is determined by factors such as the availability of resources and this in turn causes tensions between policy, practice and law. Essex local authorities are just meeting critical needs at present and although having rights which are legally enforceable do not necessarily imply the need will be met due to funding within Social Services.

“to ensure that older people are treated as individuals and they receive appropriate and timely packages of care which meet their needs as individuals, regardless of health and social services boundaries” (Department of Health, 2001a, Standard 2).

Social Services are required by law to provide equipment for the home free of charge if the service user does not have any liquid assets. However, Helen does have an owner occupied property but does not have any savings, so therefore community care services will be provided by Social Services free of charge. Local authorities have the power, and in some cases a duty, to charge for certain community care services, under the National Assistance Act 1948 and the Health and Social Services and Social Security Adjudications Act 1983 (White et al, 2007). Community equipment includes aids such as raised seats, walking sticks; grab rails and shower mats, commodes and minor adaptations that assist daily living to promote independence in the home.

If Helen wishes to have help managing her affairs, then provided she has mental capacity she can appoint someone else to make decisions on her behalf. The Mental Capacity Act 2005 (MCA) makes it possible to produce a Lasting Power of Attorney (LPA) to continue beyond any future loss of capacity by Helen. The LPA can cover property and financial affairs, or personal welfare (including health care and treatment) or both. However, this must be registered with the Public Guardian before it can be used.

(www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Makingarrangementsincaseyoulosementalcapacity/DG_185921)

The more capable older people are mentally the less likely it is that others will intervene in the choices which they make. However, for relatives these decisions may provoke anxiety and quilt. In such situations the capacity of the service user becomes an important factor in the decision process. Everyone has capacity unless stated otherwise and under the Human Rights Act 1998, Article 5(1) grants a general ‘Right to liberty and security of person’. This Article covers rights to liberty, which has self-evident relevance to the detention of people with mental health problems. Under Article 5(1)(e) three conditions must be met, except in the case of an emergency:

A true mental disorder must be established before a competent authority on the basis of objective medical expertise;

The mental disorder must be of a kind or degree warranting compulsory confinement;

The validity of continued confinement depends on the persistence of such a mental disorder (Johns, 2010:32).

With regards to the allegations that Helen has dementia we must have reasonable belief before making judgements on Helen’s mental capacity. However, it is necessary for Social services to investigate, for example look at her medical records to see if this has been confirmed by a medical professional, such as her General Practitioner. However, there is the issue of confidentiality to be considered and as such we would require Helen’s consent in obtaining this kind of information. The Data Protection Act 1998 is concerned with the protection of Human Rights in relation to personal data. The aim of the Act is to ensure that personal data is used fairly and lawfully and where necessary, the privacy of individuals are respected. It sates:

“An Act to make new provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information” (http://www.legislation.gov.uk/ukpga/1998/29/introduction).

It is important to note that the Human Rights Act 1998, encompasses every single act within the United Kingdom’s legal system. For health and social care it enables the legal framework to meet the requirements of service delivery. Due to allegations and concerns made by Stephanie, Helen’s daughter, it is necessary to undertake a formal documented assessment under the Mental Capacity Act 2005 (MCA) Section.1. This assessment is known as the MCA model and has to be conducted by two professionals of different agencies in order to confirm Helen’s mental capacity. The MCA 2005 codes of practice sets out five statutory principles and these are:

A person must be assumed to have capacity unless it is established that they lack capacity.

A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise choice.

An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Before this act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (www3.hants.gov.uk/adult-services/health-wellbeing/adultmh/mental-capacity-act/mca-principles.htm).

Case law refers to cases which have changed legislation and the story of an autistic man detained in Bournewood hospital under the Mental Health Act 1983, changed the rights for people who lack capacity. His carers successfully challenged his unlawful detainment and deprivation of liberty, by taking the case to the European Convention of Human Rights (ECHR). In 2004 the European Court judgment of the appeal of R v. Bournewood Community and Mental Health Trust, ex parte L [1998] 3 ALL ER 458, was forced to change and the Bournewood ruling and now provides extra protection for the human rights of people who lack capacity and find themselves deprived of their liberty (Brammer, 2010).

There are two statues to consider when looking Helen’s case, the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) (both amended by the Mental Health Act 2007 (MHA 2007)), which provide different kinds of powers and duties for Social Services with regards to Helen’s mental capacity. Fennell (2007) indicates that both acts provide safeguarding against arbitrary deprivation of liberty which would contravene Articles 5 and 8 of the Human Rights Act 1998.

Helen may be medically fit but mentally not ready to go home and if this were to happen this can delay discharge as this would require waiting for assessments to be completed and therefore, the NHS would now be responsible for the delay. As the service user/patient’s circumstances would have changed, the NHS would have to withdraw the existing notice and re-notify social services under s.2 of the Community Care (Delayed Discharges) Act 2003. Re-notification of this kind cancels the previous notice and restarts the process, meaning that social services must reassess the patient and, after consulting the NHS body, decide when the patient will be ready to be discharged.

Social care services, which are provided by public authorities, provide support for individuals, families, carers, groups and communities. In most cases, whenever you need healthcare, medical treatment or social care, you have the right not to be discriminated against because of your age, race, gender, gender identity, disability, religion or sexual orientation. On the 1st October 2010, the Equality Act became statute. It provides anti-discriminatory law and has replaced the Disabilities Discrimination Act 1995 and the Chronically Sick and Disabled Persons Act 1970.

“provides a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society” (http://www.equalities.gov.uk/equality_act_2010.aspx).

In summary when Helen is medically fit to leave hospital, social workers are responsible for ensuring the transition from hospital, back home is managed in a sensitive way. Helen is currently receiving meal on wheels and although additional support may be needed it is clear she will require continuing care. This is the name given to the care needed by an adult who requires help over an extended period of time to assist in their daily life. This package of care involves services and funding from both the NHS and Adult Social Care.

There are many aspects to consider when working within legal frameworks in Adult Social Care, such as statutory duties, service users rights and tensions which can occur when working a multi-disciplinary setting. In order to determine a sufficient and accurate care plan, the legal statutory duties and the codes of practice laid out by the General Social Care Council should guide practice but ultimately the needs of the services user should be at the fore.