INTRODUCTION

The following statutory powers and duties assignment focuses on a case study of Tom and his grandparents. The essay begins by highlighting the options available to the Approved Social Worker (ASW), G.P and patient in the given scenario. The rest of the assignment is related with the 1983 Mental Health Act. It also highlights several other legislations that are linked with the Community Care Services.

CASE STUDY

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(i) The G.P will most probably decide to call an ASW or the police. If the ASW decides to come he will need to interview Tom face-to-face or alternatively behind the door in a suitable manner (section 13 (2) Jones, R 1996)). This will allow him to establish whether Tom’s suicidal motives are genuine or parasuicidal (Heller, T 1996). After assessing Tom’s mental state the ASW will decide if he should be sectioned or not. Nevertheless, Tom should be informed of his options and if possible encouraged to come as an informal patient having been explained that he will be theoretically free to leave at will ( 1983 MHA section 131, Code of Practice para. 2.7 cited in Brayne & Martin).

The Code of Practice also identifies that where the patient has not previously been admitted to hospital either informally or compulsorily an application should be made under section 2 rather than section 3 MHA 1983 (Olsen, R 1984). If he refuses the ASW will decide under which section Tom should be detained (i.e. 2, 3 or 4). In the case of section 4 the medical recommendation of the G.P present is sufficient. However, for section 2 or 3 the ASW will require a joint or separate approval of two doctors as mentioned in section 11 (7) of the MHA 1983 (Jones, R 1996); the G.P and a doctor approved by section 12 of the MHA 1983.

However, in both instances the G.P will be required to sign the section papers if he agrees that Tom should be sectioned. To avoid legal implications it is in the G.P’s interest that he gives medication to Tom after he has been sectioned if he considers it necessary, rather than administering medication under common law (Cooper, J 2000). Furthermore, the G.P will need to call the police to remove Tom from the surgery toilets. Under section 135 the police officer will issue a warrant from the magistrate so that he can remove Tom to a ‘place of safety’, usually a hospital (Mind Publications). It also remains the duty of the ASW to inform Tom’s nearest relative of the sectioning and arrange for Tom to be taken to the Hospital (Williams, J 1995).

SECTION 2: ADMISSION FOR ASSESSMENT

(ii) Subject to the provisions of section 2 (a) and (b) of the Mental Health Act 1983, Tom has been detained after confirmation of two registered medical practitioners that he is suffering from mental disorder, and he should be detained in the interests of his own health or safety (N, Pringle & P, Thompson, 1999). However Section 132, Code of Practice para. 14.1 (Williams, J 1995) requires the managers of a hospital or mental nursing home to inform Tom in writing of his specific legal position and rights in respect of treatment application to the Mental Health Review Tribunal, correspondence, and of the basis for their detention. Like most cases he will be given ‘The Mental Health Act 1983 an outline guide’: a leaflet informing him and yourself (nearest relative) of all his rights (Vernon, S 1997). If Tom is about to be discharged from detention then hospitals managers or mental nursing homes will inform you (Jane) under section 133 (para. 14.4 of the Code of Practice).

Under section 2 (2) of the 1983 MHA Tom’s detention may last for up to 28 days beginning with the day in which he was admitted (Cooper, J 2000). However if after the 28 days have elapsed and Tom is to remain in hospital he must do so either as an informal patient or be detained for treatment under section 3, if the conditions of that section are satisfied (Thompson, T ; Mathias 1997). Section 3 can last for an initial period of up to 6 months, renewable for a further 6 months and thereafter renewable at yearly intervals (Brayne, H ; Martin, G 2001).

Alternatively an order for the Toms discharge from this section can be made at any time prior to the expiration of the 28-day period by his reasonable medical officer, the hospital managers (section 23 (2) (a)) or, subject to section 25, yourself (his nearest relative) after 72 hours notice (Jones, R 1996).

SECTION 3: ADMISSION FOR TREATMENT

(iii) This section provides for your (Tom’s) compulsory admission in hospital for treatment and subsequently your detention. You can be detained for an initial period of six months renewable by the Responsible Medical Officer (RMO) for a further six months and thereafter renewable at yearly intervals, if your mental condition requires detention as a patient in hospital (section 20 (1) & (2) Jones, R 1996).

Under section 3 you will be subject to the ‘consent to treatment’ provisions contained in section 56 (1) of the 1983 MHA. In relation to electro convulsive therapy and a course of medication you must accept the treatment for the first three months whilst kept in hospital. If you refuse to consent then these treatments can be administered if the doctor appointed by the Mental Health Act Commission, certifies that you have not consented and this is likely to cause deterioration in your condition (Ball, C 1996)

If you want to ask something or to complain about something talk to the doctor nurse or social worker. If you are not happy with the answer you may write to the hospital managers. If you are still not happy with the reply you are given you can ask the Mental Health Act Commission to help you (Olsen, R 1984). You can seek to obtain your own discharge by making an application to a Mental Health Review Tribunal (MHRT) within 14 days of your admission under section 66 (l) (a) & 2 (a) (Johns, R & Sedgwick, A 1999).

The function of the MHRT is to review the justification for your continued detention at the time of the hearing (Thompson, T & Mathias, P 1997). Your period of eligibility for appeal to a tribunal is once within the first 6 months, once during the next 6 months, and once during each subsequent period of 12 months (Jones, R 1996). If you do not apply to a tribunal within the 6-month period of the compulsory admission, and no referral is made to a tribunal on your behalf, then the hospital managers must refer the case to a tribunal (N, Pringle & P, Thompson, 1999).

If you want to attend a wedding or any special occasion section 17 (1) and (2) Paras 20.1-20.10 provides the lawful authority for your absence from the hospital where you are detained (HMSO Code of Practice). The responsible medical officer may grant this permission to you however release will be limited and you will be subject to such conditions as are considered to be necessary (Williams, J 1995). Furthermore, if you are granted leave of absence under this section you remain to be ‘liable for detention’ and are therefore subject to the consent to treatment provisions in S. 56 (1) of the MHA (Jones, R 1996).

CHALLENGING DETENTION

If Tom wants to go before the end of the 6 months, or before the doctor says he is ready he will have to get the agreement of either the hospital managers or the Mental Health Review Tribunal. Application will be made in writing to the appropriate office giving details of the his name, address, hospital or responsible local social services authority, the Section under which he is detained, the nearest relative and legal representative (Olsen, R 1984). Tom can apply to the Tribunal any time in the next 6 months and if he withdraws his application he can apply again. If Tom requires help writing the letter or filling in the form the social worker or hospital will help him (HyperGUIDE).

Significantly, the Act provides for legal aid to enable Tom to have legal representation. The Tribunal office or social worker will inform him how to find a solicitor or other help if he asks them (Vernon, S 1997). It is possible for Tom to ask someone, including a solicitor if he wishes to help ask the Tribunal to look at his case and help him put his views to the Tribunal (Williams, J 1995). The solicitor’s help may be free or it may only cost him a little. Toms nearest relative will also be told about any legal aid schemes that could help him obtain representation for a court appeal or Mental Health Review Tribunal (Olsen, R 1984 p33/93).

COMMUNITY CARE SERVICES

The 1990 National Health Service and Community Care Act (NHSCCA) clearly instructs the Department of Health to make sure that ‘service provisions’ should as far as possible, preserve or restore normal living and support for elderly clients like Jane and Peter so that they can live at home (Tester, S 1996). Moreover under section 47 of the NHSCCA outlines that both Jane ; Peter are eligible for separate assessments (Barret, J 2001). Consequently because Jane’s arthritis has worsened to such degree under the 1970 Chronically Sick and Disabled Persons Act (CSDPA) and the 1948 National Assistance Act (NAA), she may be entitled to certain community care services. Peter is also finding it difficult looking after her, hence the 1995 Carers (Recognition and Services) Act may provide provisions for him. The NHSCCA (section. 46 (3)) sums up some of the legislations that provide ‘Community Care Services’ to Jane & Peter. Below are some services that they may be entitled to (Vernon, S 1997):

A home carer can be arranged for Jane under section 2 of the CSDPA 1970 to provide personal care, such as assistance with bathing and dressing, help with getting in and out of bed, and help with medicines. It also includes practical assistance in the home to improve safety, comfort convenience and manage with daily tasks more easily and independently (Maczka, K 1990).

The 1968 HSPHA (section 45 DHSS Circular 19/71) instructs the Social Services to cater for the delivery of hot meals to Jane and Peter at their home by a meals-on-wheels service. However a charge is usually made for each meal (Hardy and Hannibal 1997).

Section 21 Sch. 8 of the 1977 National Health Service Act provides a laundry service for people who are incontinent or who for some reason cannot do their own laundry (Vernon, S 1997).

Jane may also be entitled under section 29 of the 1948 National Assistance Act to a mandatory grant for essential adaptations that will enable her to move around her home more easily and her access to the kitchen, bathroom, bedroom and living room (Brayne, H & Martin, G, & Carr, H 2001). Examples of the type of adaptations that may be carried out are: Installing a stair lift, providing a toilet and shower downstairs, installing a ramp etc (Bornat, J (1994).

Although the assessment is free, section 17 HSPHA 1983 provides that charges may be made for services provided under section 29 NAA 1948 other than where section 29 (4A) NAA 1948 applies. It may also engage that any person carrying on, professionally or by way of trade or business, activities that consist of or include the provision of services for people within section 29 NAA 1948 will have to pay (Maczka, K 1990).

SERVICES FOR THE BLIND

According to the Royal National Institute for the Blind People who register as blind or partially sighted may be able to get special, help. Some, for instance, can claim disability benefits. Nevertheless, health and social services for people with impaired vision are patchy, and many people receive little or no help from the State. Under the Chronically Sick and Disabled Persons Act 1970, the local authority has a duty to provide services for the blind or people with poor eyesight (Brayne, H, Martin, G & Carr, H (2001).

The Royal National Institute for the Blind (RNIB) regularly publishes leaflets, which contains helpful gadgets for people with impaired sight (Barret, J 2001). These include easy-to-see, tactile and talking watches, clocks, signature guides to use with cheque or pension books and other goods. A computer together with a speech synthesizer can enormously increase a visually impaired person’s independence by assisting them to read, write and communicate.

POWER OF ATTORNEY ; COURT OF PROTECTION

The Court of Protection operates two schemes under Part VII (sections 93-113) of the Mental Health Act 1983 and the Powers of Attorney Act 1985 respectively for managing and administering the property and affairs of “a person who is incapable, by reason of mental disorder,” (Public Guardianship Office).

An Enduring Power of Attorney as mentioned by Jones (1996) is a documented formal arrangement in which the ‘donor’ appoints someone to manage their financial affairs in the event that they may become mentally incapacitated at some time in the future.

Once the power has been registered, it cannot be revoked or amended by the donor even if mentally capable without the court’s confirmation unless the court confirms the revocation (Cull, A & Roche, J 2001). Legal points out that the 1985 Act, relates only to “financial property and affairs”, and does not extend to decision making in relation to personal and medical matters (Jones, R 1996).

It should be noted that all professional, qualified bodies involved are entitled to a fee. In addition, patients also have to pay an annual charge to the Court of Protection itself who will assess a person’s cleared annual income after all deductions (Public Guardianship Office).

Vernon (1997) describes the Court of Protection as a system whereby a court appoints a manager to protect and administer the financial affairs and property of those who are vulnerable to exploitation because of their mental incapacity. Unless the patient’s affairs are sufficiently straightforward to be dealt with by a simple order, the Court will appoint a receiver, who will be empowered in very precise terms to protect the estate and use it for the patient’s behalf and will have to render annual accounts (Johns, A ; Sedgwick, A 1999). The receiver may be a relative, professional adviser or any other suitable person who is prepared to act. The Court’s functions continue until the patient dies or, exceptionally, the patient can manage his own affairs (Ball, C 1996).

BIBLIOGRAPHY

1. Ball, C (1996), Law for Social Workers: Third Edition, Arena Ashgate Publishing Ltd, London.

2. Barret, J (2001), Older and Independent, Information, Equipment, advice, The Disability Information Trust, Oxford.

3. Bornat, J (1994), Community Care: A Reader, The Macmillan Press Ltd, London.

4. Brayne, H, Martin, G & Carr, H (2001), Law for Social Workers: Seventh Edition, Oxford University Press, Oxford.

5. Cooper, J (2000), Law, Rights & Disability, Jessica Kingsley Publishers Ltd, London.

6. Cull, L. & Roche, J (2001), The Law and Social Work: Contemporary Issues for Practice, Palgrave, New York.

7. [email protected] WWW. Guardianship.Gov.U.K

8. Farrel, E (1997), The Complete Guide to Mental Health: The comprehensive guide to choosing therapy, counselling and psychiatric care, Vermillion, London.

9. Heller, T (1996), Mental Health Matters: A Reader, The Open University.

10. HMSO, The care of Frail Elderly People in the United Kingdom, HMSO Publication Centre, London.

11. HMSO, Mental Health Act 1983, HMSO Publication Center, London.

12. HMSO, Mental Health Act 1983, Code of Practice, HMSO Publication Center, London.

13. HMSO, National Health Service & Community Care Act 1990, HMSO Publication Center, London.

14. Jones, R (2000), Mental Health Act Manual: Sixth Edition, Sweet & Maxwell Ltd, London.

15. Mind Publications, The Mental Health Act 1983: An Outline Guide, London.

16. Maczka, K (1990), Assessing Physically Disabled People at Home, Chapman and Hall Ltd, London.

17. Nigel Turner’s HyperGUIDE to the Mental Health Act: Challenging Detention

18. http://www.hyperguide.co.uk/mha/part4.htm

19. Oliver, M ; Barnes, C (1998), Disabled People and Social Policy: from exclusion to inclusion, Addison Wesley Longman limited, Essex.

20. Olsen, R, M (1984), Social work and mental health: A guide for the Approved Social Worker, Tavistock Publication Ltd, London.

21. Pringle, N.N ; Thompson, P.J (1999), Social Work, Psychiatry and The Law: second Edition, Arena Ashgate Publishing Ltd, London

22. Public Guardianship Office (2001) – Enduring Power of Attorney, a guide to making an enduring power of attorney or taking on the role of attorney.

23. Sillers, S (1992), Caring for people: A workbook for Care Workers, Macmillan press Ltd, London.

24. Tester, S (1996), Community Care for Older People: A Comparative Perspective, Macmillan Press Ltd, London.

25. Thomas, T (1996), Using the Law in Social Work: Unit Five Workbook: The Law ; Adults: Part 1, Disable People, Older people, Criminal Violence, BASW Trading Ltd, Birmingham.

26. Thomas, T (1996), Using the Law in Social Work: Unit 6 Workbook: The Law ; Adults: Part 2 Mental Health, BASW Trading Ltd, Birmingham.

27. Thomson, T ; Mathias, P (1997), Lyttle’s Mental Health and Disorder: second edition, Bailliere Tindall, London.

28. Tinker, A (1997), Older People in Modern Society: Fourth Edition, Addison Wesley Longman Ltd, Essex.

29. Vernon, S (1997), Social Work and the Law, Butterworth & Co Ltd, London.

30. Williams, J (1995), Social services law: second edition, Tolley publishing company, Surrey.

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