1. Older People
Countering discrimination is part of good social work practice and anti oppressive practice includes challenging the way the law can discriminate against certain groups. (Workbook 1, p 12). There is actually “…very little legislation to protect adults who are vulnerable through age…”(Workbook 1, p 24). Legislation exists to protect people from discrimination because of race, disability or sex but although it is planned, there is no law yet in place to counter ageism (Department of Trade Website).
The Department of Health has also recognised this inequity and in 2001 it published the National Service Framework for Older People with eight key standards, seven of which are about improving the way care is delivered but standard one is “…Rooting Out Age Discrimination by basing NHS services on clinical need and preventing social services departments from using age in their eligibility criteria to restrict access to services…” (Update Supplement, p 24). A clear example of how the law can strive to be empowering and give choice.
Under Section 45 of the Health Services and Public Health Act 1968 Local Authorities may provide services to older people for example, meals, transport and home adaptations. All of these can be very empowering, allowing people to live independently for longer; however, they are discretionary, being subject to the local authority’s budgets and priorities and to the assessor’s professional opinion around eligibility. Choice is accordingly limited. (Workbook 4, p 16 and 40). An interesting development is that the Human Rights Act 1998 makes discretionary policies challengeable on human rights grounds so service users could, in time, be faced with less uncertainty (Reader, Schwer, p 73).
A statute that invokes a duty on a local authority rather than a power is the National Health Service Act 1997 (NHSA). The authority has a duty to provide home help for “.. a person who is suffering from illness, lying in, an expectant mother, aged, handicapped as a result of having suffered from illness or by congenital deformity…” (NHSA Schedule 8 cited in Workbook 4 p 16). It should be noted however that the wording of the act is such that the duty is to provide “…on such a scale as is adequate for the area….” Thus giving authorities a level of discretion.
The National Assistance Act 1948 confers both powers and duties on local authorities to provide residential accommodation under section 21 and under section 45; they have the power to compulsorily remove people from their homes. A power that is rarely used nowadays and cannot easily be seen to be empowering or providing choice to service users (Workbook 4 pp 17 – 20).
Having considered some of the background relating to the law and older people it is now appropriate to consider the issue of elder abuse within the context of empowerment and choice. This essay will consider abuse in two settings, residential care and care at home. There have been a number of attempts to find a clear definition of abuse. The department of Health offers the following concise definition. “…Abuse is a violation of an individual’s human and civil rights by any other person or persons…” (No Secrets (DoH, 2000d) cited in reader, Brammer, p 165).
In both residential and domestic settings, abuse can be physical such as hitting, sexual such as touching inappropriately, it can be psychological including threats, it can be neglect where a person does not receive care and finally, the most common form of abuse is financial where an older person is deprived of their property. (Reader, Bramner, p 168)
“..There is cause for concern about the quality of care in residential homes…”. In 2000, experts considered that 10 per cent of residential homes hid “…stories of cruelty and incompetence…” (workbook 4, p 28). The Care Standards Act 2000 (as mentioned earlier) is striving to address these issues, but power imbalances in residential settings can make it very difficult for service users to access the Law, particularly if they are suffering from dementia, and/or have no relatives to visit or represent them. Equally, allegations against carers can be very hard to prove particularly if the alleged abuse takes place in the absence of any witnesses. Abuse in the category of neglect, can sometimes be attributed to owners of homes failing to provide adequate care for financial reasons. In such circumstances, it is only when a staff member speaks out that the abuse is tackled but many people are afraid to speak out because they fear losing their jobs. The Public Interest Disclosure Act 1998 seeks to address this by seeking to protect workers who disclose, from victimisation, and this law therefore indirectly empowers service users (Workbook 4 pp 28 – 33).
Abuse that takes pace in a residential setting can be seen as a criminal matter or a civil one arising out of breach of contract. However, in domestic settings where no money is changing hands the issues can be much more complex, because of the dynamics of the relationships between service users and carers; heavy handed use of the law can have disastrous consequences for both. The case of Mollie & Edward (Workbook 4, pp 24 – 25) is a good example of this. The law needs to be used to empower and give choice to both Mollie and Edward and because of their conflicting needs it would be better if two workers were involved. Edward has committed a criminal offence in hitting Mollie and as such, the Offences against the Person Act 1861 could be used, however, removing Edward might not be the best thing for Mollie as she would have to be cared for by strangers or moved to a residential setting with all the risks identified above. Mollie is neither empowered nor given choice. More assistance under the 1977 NHSA might be a better option. Edward is a carer and in law, under the Carers (Recognition and Services) Act 1995 he is entitled to an assessment in his own right. However, in my experience, the extent to which he is empowered and given choice is, again, resource driven as the law entitles Edward to an assessment and not necessarily to any services for carers beyond information and advice.
Legal remedies for abuse include criminal prosecution. For example, in the case of financial abuse, a prosecution under the Theft Act 1968 or in the case of psychological abuse, The Protection from Harassment Act 1997. In her article on Elder Abuse, Alison Brammer points out that the high burden of proof can make criminal prosecution difficult, but the lower burden of proof in the civil courts can mean contract, tort and family law can make it “…effective and empowering for an individual to take private action to counter the abuse…” (Reader, Brammer, p 171).
2. Adults with physical disabilities (includes people over 65)
Social policy in recent decades has leaned towards a view that whilst residential and nursing homes remain a part of community care services, people should be enabled to be cared for at home wherever possible, having had a proper assessment of need. Under section 47 of the National Health and Community Care Act 1990, wherever a person appears to be in need of community care services, the local authority has a duty to assess the person’s needs, regardless of resources. (Workbook 4, pp 38 -39). Where needs are assessed under this act, services may be provided within local authority eligibility criteria that have recently been refined as a result of the “Fair Access to Care Services” guidelines published by the Department of Health in 2002. Despite these guidelines, availability remains resource driven and accordingly not very empowering, “…this highlights the imbalance of power between the service user and the social worker…” (Workbook 4, p 40).
If, during the process of the assessment it becomes apparent that the potential service user is disabled, as defined by section 29 of the National Assistance Act 1948, then she or he may be entitled to services under the Chronically Sick and Disabled Persons Act 1970 and must be made aware of this. Section 2 of this act imposes duties on local authorities to provide a wide range of services to this group; these can include practical support, leisure facilities, meals, education and travel facilities. This may seem very empowering and choice giving but in fact, the Gloucestershire case (see below) means that “…even if resources are short, the local authority must provide the service, but only to people whose need for the service is so great that it triggers `eligibility’ for them within the local authority’s specific criteria…” (Workbook 4, pp 43 – 45). Fair Access to Care Services describes four risk bands, Critical, Substantial, Moderate and Low (Update Supplement p 26). In my experience, interpretation of the explanation of the “substantial” band is very resource led and we do not provide services to moderate and low risk clients so choice and empowerment have not been greatly improved by this change.
“…Freedom from local authority conventions on service delivery may be obtained through the use of Direct Payments…” (Reader, McDonald, p 149). This is an area where significant efforts are being made to improve empowerment and choice. Under the Community Care (Direct Payments Act) 1996 local authorities were empowered to make payments to service users to enable them to exercise more choice in their care arrangements by purchasing them themselves, this can include very complex packages where the service user becomes an employer and pays the carers a salary. Direct Payments were extended to people over 65 from February 2000, and under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) regulations 2003, authorities now have a duty to offer Direct Payments (rather than a power) to any one who is ready, willing and able to use this method of service provision. (Update Supplement, p 27).
Before moving on, it is appropriate to mention charging. Legally, with certain exceptions, local authorities can, and in some circumstances must charge for the services they provide. This can be very disempowering for service users as it can be seen as a “… betrayal of the promise of the welfare state...” and “...given the power imbalances…between service user and practitioner…many vulnerable adults would find it difficult to challenge the local authority’s decision to charge for its services…” (Workbook 4, p 64). I have experience of service users being assessed as eligible for care only to decline it on discovering they would either have to pay or complete a financial assessment; a clear limitation on choice.
3. People Experiencing Mental Health Problems
It is within the area of mental health work that social workers can experience some of the most challenging dilemmas around the tensions between the need to care for service users and to control them in order to prevent harm to themselves or others. How then can some aspects of mental health work empower service users and offer them choice? In the reader, Jeannette Henderson, an Approved Social Worker (ASW) sums this up. “…Is it possible, for example to detain someone in hospital against his or her will in an empowering manner?...” (Reader, Henderson, p 191). The Mental Health Act 1983 is the key statute here. It is lengthy and complex but for the purposes of this essay, the discussion will be confined to compulsory admission to hospital.
Under Section 2 of the act a patient can be detained in hospital for assessment against their will for up to 28 days. An application is made by an ASW and has to be recommended by a two medical practitioners, one of whom must be a mental health specialist. The final decision is nevertheless with the ASW. Empowerment and choice for the patient are very limited, the patient should get the chance to speak to the ASW alone but this may not be possible if violence is a feature. The patient’s nearest relative has the power to refuse to allow admission although this power may not be exercised if the relative wants the patient to be removed. Similarly, even if the nearest relative does object then her/his status can be legally challenged. (Workbook 4, page 88).
Under Section 3 of the act a patient can be detained in hospital for treatment, initially for six months but extendable by two further six month periods then annually. Such treatment is usually with consent but there are circumstances where it can be given without consent. Again the application is by the ASW with a recommendation from two medical practitioners. The nearest relative can object, as with admission for assessment. Patients have rights to appeal against detention at regular opportunities (Workbook 4, pp 90 - 96).
The purpose of such legislation is seen as being to protect patients and the public from danger rather than being about empowerment and choice; according to Jeanette Henderson the best the ASW can hope for is being able to make the experience of admission into a “…less negative one…”. Partnership working remains necessary and can be achieved as far as is possible by taking the needs of all those involved into account (Reader, Henderson, p 197 and Workbook 4 p 94).
The Mental Health Act 1983 is seen as being in direct conflict with aspects of Human Rights Legislation, for example, Article 3 (freedom from inhuman or degrading treatment, Article 5 (right to liberty and security) Article 6 (right to a fair hearing) and Article 8 (right to respect for private and family life). The Act is being revised although mental health charities are showing little enthusiasm for what is being proposed. It can only be hoped that the situation will improve for the 25,000 people who are
compulsorily detained each year (Update Supplement pp 7 – 10 & 31 and Workbook 4, p87).
In conclusion then, it can be seen that there is ample legislation to empower vulnerable adults and offer them choice. However, it is “…fragmented, complex and difficult to grasp…” (workbook 4 p 20). Before 1989 childcare law was similarly fragmented. The Children Act 1989 with its welfare checklist to assist practitioners when difficult situations arise replaced earlier legislation with more simplified law. There is no such unifying statute for Adults. “…this absence of a legislative mandate means that social work practice within community care must be especially sensitive to the application of sound professional values…” (Reader, McDonald, p 146). “…Where it is appropriate to have recourse to legal intervention, that action must be informed by values with an appropriate emphasis on empowerment and self determination…” (Reader, Brammer p 174).
We are a litigious society, being excellent at making laws, rules, guidance, policies and procedures, some of which are aimed at protecting vulnerable adults. However, the law also allows society to simultaneously under provide the resources needed to safeguard them because generally, the wide range of legislation that exists to protect them comes with only a limited enforcement resource and a “get out” clause that ensures Local Authorities only provide what they can afford, irrespective of need R v Gloucestershire County Council, ex parte Barry [1997] 4 All ER 421 (Workbook 4 p 44).
The law appears to recognise that demand for health and social care services is infinite and the supply is finite; accordingly, care managers have to comply with the budgetary restrictions of the authorities that employ them whilst contemporaneously complying with the requirements of their own Professional Codes of Practice; a dilemma in itself. It is against this complex background that practitioners have to strive to use the law to empower and provide choice for service users, their carers and their families.
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References:
Brammer A (2001) “The Law, Social Work Practice and Elder Abuse” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke, Palgrave
Cooper J (2001) “The Disability Discrimination Act 1995” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke, Palgrave
Henderson J (2001) “The Challenges of Care and Control: Experiences and Observations from an Approved Social Worker ” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke, Palgrave
McDonald A (2001) “Care in the Community” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke, Palgrave
Schwer B (2001) “Human Rights and Social Services” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke, Palgrave
K269 Course Team (2001) Social Care, Social Work and The Law
(England & Wales).
K269 Course Team (2003) Law Reference Pack
England & Wales, Milton Keynes, The Open University.
K269 Course Team (2003) Assignment Booklet, 2005 Presentation, Milton Keynes, The Open University.
K269 Course Team (2005) Update Supplement, 2005 Presentation, Milton Keynes, The Open University
The National Service Framework for Older People, Department of Health 2001 http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/OlderPeoplesServices/OlderPeopleArticle/fs/en?CONTENT_ID=4073597&chk=4wRxm%2B [Accessed 9th August 2005]
Department of Trade & Industry “Age positive” website. http://www.agepositive.gov.uk/newsDetail.cfm?sectionid=44&newsid=565 [Accessed 9th August 2005]
