Social workers need to understand the powers and duties relevant to working with carers, and the principles from administrative law that should guide decision making. Below we give a brief summary of where to look for relevant law and guidance on key issues including:
- Carers’ assessment and eligibility
- Safeguarding adults
- The Mental Capacity Act 2005
- Human Rights
Legal literacy can be defined as “the ability to connect relevant legal rules with the professional priorities and objectives of ethical practice” (Braye and Preston-Shoot, 2016). It is a mixture of
- Law: doing things rights
- Ethics: doing the right things
- Rights: thinking derived from human rights and equality.
Social workers need to be able to use critical analysis of the legal rules to work out how best to apply them to situations involving carers. They need to apply professional judgement and the principles of defensible decision making, and be able to evidence their reasoning and thought process – ‘show their working’ to apply the law in practice.
Kemshall (2003) identifies the following criteria for defensible decision making:
- All reasonable steps are taken
- Reliable assessment methods are used
- Information is collected and thoroughly evaluated
- Decisions are recorded and carried through
- Agency processes and procedures are followed
- Practitioners and managers are investigative and proactive.
Sometimes, legal decisions may feel too complex to handle alone. Social workers should be familiar with the sources of support and advice to call on when making complex or controversial decisions to do with the law. Your manager will be the first port of call; they may also decide to refer a decision up, as required.
References and further reading:
- Braye S and Preston-Shoot M (2016) Strategic Briefing: Legal literacy in adult social care. Dartington: Research in Practice for Adults.
- Kemshall H (2003) ‘The Community Management of High Risk Offenders’. Prison Service Journal March.
- Nosowska G and Series L (2013) Good decision-making: Practitioners’ Handbook. Dartington: Research in Practice for Adults
The Care Act 2014
The Care Act is the main law that is used in adult social care. Part 1, which is about care and support covers a wide range of areas including: general responsibilities of local authorities; assessment and meeting needs; payment; safeguarding; market development; transition; and advocacy.
Part 1 starts by stating that ‘The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.’ This applies to carers as well as to adults who may need care and support.
The act and the statutory guidance that accompanies it, provide detail about what must, should and may be done to support carers. Some of the main areas are:
- Duty to prevent, delay or reduce the needs for support of carers in the local authority area
- Duty to promote integration to support wellbeing, prevention of need or quality of care
- Duty to provide information and advice relating to support for carers
- Duty to assess people who provide or intend to provide care for an adult
- Duty and power to meet carers’ needs for support
- Duty to assess carers of children approaching 18 if it would be of significant benefit to the carer
- Power to meet child’s carer’s needs
- Duty to assess young carers approaching 18 if it would be of significant benefit to the carer
- Duty to provide information following young carer’s assessment
- Duty to provide independent advocacy if needed by carers.
References and further reading:
Assessment and eligibility
The Care Act guidance states that assessment should ‘not just be seen as a gateway to care and support, but should be a critical intervention in its own right, which can help people to understand their situation and the needs they have, to reduce or delay the onset of greater needs, and to access support when they require it.’ Some important considerations for carers are:
- When assessing an adult, you must involve any carer that the adult has
- There is a duty to assess a carer where it appears to a local authority that they may have needs for support (whether currently or in the future)
- A carer is someone who provides or intends to provide care for an adult
- Assessment of a carer should look at the carer’s: ability to care; willingness to care; the impact of their needs; the outcomes that they wish to achieve; how support could contribute to achieving outcomes
- Carer’s assessment must also look at employment and participation in education, training or recreation.
There is a duty to meet the carer’s needs for support which meet the eligibility criteria. The national eligibility criteria set a minimum threshold for carer support needs. All local authorities must comply with this national threshold. Authorities can also decide to meet needs that are not deemed to be eligible if they chose to do so.
In considering whether a carer has eligible needs, local authorities must consider whether:
- the needs arise as a consequence of providing necessary care for an adult i.e. care that an adult needs and cannot do themselves
- the effect of the carer’s needs is that they are unable to achieve any of the outcomes in the criteria
- as a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing.
The decision about eligibility is a person-centred one. The guidance states that ‘Local authorities will have to consider whether the carer’s needs and their inability to achieve the outcomes will have an important, consequential effect on their daily lives, their independence and their own wellbeing. In making this judgment, local authorities should look to understand the carer’s needs in the context of what is important to them.’
References and further reading:
- The Care Act 2014 Statutory Guidance, First Contact and Identifying Needs
- The Care and Support (Eligibility Criteria) Regulations 2014
- SCIE (2014) Eligibility determination for the Care Act 2014
- SCIE (2014) Care Act: Practice example Carer Eligibility – Video
- Carers’ UK Getting care and support
- RiPfA Carers guide: Working together with adult social care
- Tool: Prepare for assessment, planning, review
- Helen Sanderson Associates, Person-centred planning tools
Chapter 14 of the Care Act guidance (DH, 2016) gives details about the principles and practicalities of safeguarding adults. It explains that safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect, and should make sure that the individual’s wellbeing is promoted. Any action taken in safeguarding should give regard to the individual’s wishes, feelings, views and beliefs, drawing on the principles of Making Safeguarding Personal.
Section 14.45 onwards outlines guidance around carers and safeguarding. It explains that carers may be involved in any of the following situations that require a safeguarding response:
- Being a witness or speaking up about abuse or neglect
- Experiencing intentional or unintentional harm from the adult they are trying to support, or from professionals or organisations they are in contact with
- By intentionally or unintentionally harming or neglecting the adult they support.
Carers must be listened to if they raise a concern about abuse or neglect and, where appropriate, a safeguarding enquiry should be undertaken, involving other agencies if necessary.
Assessments of people with care needs and carers must include consideration of the wellbeing of both people. Other key principles related to carers and safeguarding include:
- Prevention should be a key priority; this may include providing support to carers to prevent the risk of (unintentional or intentional) harm to the person they care for.
- Carers should be involved in safeguarding enquiries related to the person they care for, as appropriate
- Consideration should be given to the appropriateness of joint assessments
- Consideration should be given to risk factors or changes in circumstances which may make harm or abuse more likely, and how to mediate them.
The references below give further support and guidance on safeguarding where carers might be involved.
References and further reading
- DH (2016) Care and support statutory guidance: Safeguarding, Chapter 14. Updated 9th May 2016.
- RiPfA Leaders’ briefing: Safeguarding in light of the Care Act
- SCIE (2011) Report 41: Prevention in adult safeguarding
Safeguarding and carers:
- ADASS (2011) Carers and safeguarding adults – working together to improve outcomes http://static.carers.org/files/carers-and-safeguarding-document-june-2011-5730.pdf (please note – this guidance was produced before the implementation of the Care Act, and so refers to No Secrets, the previous policy guidance on safeguarding adults)
- SCIE (2014) Care Act: Sharing information with carers, family or friends – Adult safeguarding: sharing information http://www.scie.org.uk/care-act-2014/safeguarding-adults/sharing-information/sharing-information.asp
Making safeguarding personal:
- LGA Making Safeguarding Personal https://www.local.gov.uk/topics/social-care-health-and-integration/adult-social-care/making-safeguarding-personal
Safeguarding and domestic abuse:
- LGA (2015) Adult safeguarding and domestic abuse: a guide to support practitioners and managers. 2nd edition. https://www.local.gov.uk/sites/default/files/documents/adult-safeguarding-and-do-cfe.pdf
- NICE (2016) Quality standard: Domestic violence and abuse https://www.nice.org.uk/guidance/qs116
- RiPfA (2015) Research and Policy Update: Safeguarding and domestic abuse https://www.ripfa.org.uk/resources/publications/policy-scopes/rpu-april-2015-safeguarding-and-domestic-abuse
Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) is an essential part of social work and social care practice with people aged 16+.
It enshrines in law individuals’ rights to make their own decisions unless it can be demonstrated that they lack the mental capacity to do so. It also gives clear guidance on how to maintain an empowering ethos of care and support for people who have care or support needs.
The Act is relevant to working with carers because carers may need help to understand its implications for the person that they care for.
Carers may be asked to support the person they care for with their decision making, by advising on the best way to communicate or explaining a decision to the person.
Carers may be asked to provide background information to help professionals make a judgement over whether someone has capacity to make a decision or not.
If the person they care for lacks mental capacity to make a specific decision, they must be consulted by professionals as part of a best interests decision making process. Carers need to understand the idea of ‘best interests’ decision making.
Carers may also take on a specific legal role for the person they care for, such as a Lasting Power of Attorney (LPA).
References and further reading
- Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: TSO. Available online: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
- Ruck Keene A et al (2014) A brief guide to carrying out capacity assessments. http://www.39essex.com/docs/newsletters/capacityassessmentsguide31mar14.pdf
- SCIE Video: Mental Capacity Act: Using the Key Principles in Care Planning. https://www.youtube.com/watch?v=eyibu5YXJUc&list=PLCFEE20C590384CB2&index=10
- SCIE Mental Capacity Act resources: http://www.scie.org.uk/mca/
Human Rights Act 1998
The Human Rights Act 1998 outlines the rights and freedoms that everyone in the UK is entitled to. The Act requires all public bodies, and bodies carrying out public functions to respect and protect people’s human rights. Articles that are particular relevant to social care include:
Article 5: Right to liberty and security
(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 8: Right to respect for private and family life.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
References and further reading:
- Equality and Human Rights Commission: The Human Rights Act https://www.equalityhumanrights.com/en/human-rights/human-rights-act
- HM Government (1998) The Human Rights Act http://www.legislation.gov.uk/ukpga/1998/42/contents