LAW ASSIGNMENT CASE STUDY
Introduction
Social work came into being with the introduction of the Local Authority Social Services Act (LASSA) 1970. The Act defines the responsibilities of social workers and how these responsibilities are being applied. This assignment will explore key legislation affecting the roles and responsibilities of Local Government towards people in need of social care provisions. For the purpose of this case study, I will define “Duty” and “Power” in relation to social services legal responsibilities to service users. If a duty is imposed by law, the local authority is legally compelled to carry out a particular function. When referring to a “power” the Local Authority has an element of choice. This means the authority may act in a certain way and is not under a legal obligation to provide a service or assistant (Brammer, 2007). The combination of duties and powers facilitates decision making for Local Authorities (Clements, 2004). While the law outlines various duties and powers these are counterbalanced by issues relating to values and ethics as in the Human Rights Act 1998 (HRA 1998), which aims to ensure that all aspects of our law are compatible with human rights.
- You are the duty social worker at the CMHT what are your powers and duties to intervene?
The duty social worker has a duty to warn others of the risk and also warn the patient of the risk to their behaviour (Hardcastle and Powers, 2004). As a duty social worker within the Community Mental Health Team (CMHT), I would, in the case of Sharon need to apply for deprivation of liberty for hospital treatment, based on the fact that Sharon has schizophrenia which is a recognised mental health disorder under the mental health Codes of Practice 1983 (MHCOP 1983). Under section 117 of the Mental Health Act (MHA) 1983, local authorities have a duty to provide after care services for any person with a mental disorder. This will include people admitted to hospital for treatment (section 3). An individual duty is placed on both local and health authorities to provide the after care services for anyone to whom certain sections of the law applies until both authorities feel the person is no longer in need of the service (Mandelstam, 2000). In this particular case the duty social worker will have the power to call for a supervision order since Sharon suffers from mental illness and has relapsed, and that there is a substantial risk of serious harm to her health and safety or of her being seriously exploited if she was not to receive the after care service to be provided under MHA 1983, s117. Also the supervision order will ensure that Sharon receives the after care service. The application for a supervision order should then be made to the health authority (MHA 1983s25a).
Application for guardianship is made by the local authority’s Approved Mental Health Practitioner (AMHP), with the agreement of the nearest relative requiring written recommendations of two medical practitioners. An application for guardianship comes with a comprehensive care plan under the Care Programme Approach (CPA). The AMHP ensures that a multidisciplinary approach is maintained in developing the care plan (Brammer, 2007)
There are issues with the duty social worker’s powers and duties to intervene which may cause an ethical dilemma for social work practice. The key issue is between preserving the patient’s autonomy as enshrined in the 1998 Human Rights Act and protecting the patient and others. It is therefore important to determine the patient’s capacity. Therefore it is useful to promote non consensual intervention when necessary in order to ensure the appropriate balance of rights, obligations and interests (Potter, 2007).
It is important that a formal process is followed and there are legal backings for the deprivation as stated in the Bournewood judgement (DH, 2006). So the Deprivation of liberty safeguards will apply to those under the 2007 MHA, people in hospitals registered under part 2 of the Care Standards Act 2000, and will apply to people who lack the capacity to give informed consent to the arrangements made for their care, and need to be cared for in circumstances which amounts to a deprivation of liberty in order to protect them from harm.
Under the safeguards there are a number of assessments that can be followed. A mental health assessment could be done under s12 of the MHA 1983. A mental capacity assessment will establish that the person lacks capacity in relation to the question whether Sharon should be a resident in the hospital, and a best interest assessment, which ascertains whether the detention is in the best interest of the person being detained.
The AMHP interviews Sharon before making the decision that sectioning her is the most appropriate way to provide care and medical treatment (Brayne and Carr, 2008). Then the AMHP will liaise with Sharon’ nearest relative as advised by s13 (2) of the MHA 1983. Since Dorothy is Sharon’ nearest relative, It is important to consult with the right relative otherwise this will make the detention unlawful. The AMHP then explains the decision to detain Sharon to all relevant parties such as the doctors, Dorothy and GP. As contained in DH (2008) the AMHP also has the power to inform the police or other relevant parties to transport Sharon to the hospital (s6 MHA1983 and MHCOP 11.8).
Peay (2003) states that while the MHA1983 and MHCOP provides a clear definition of the duties and powers of the AMHP there can be an ethical issue where this conflicts with both personal and professional values.
- You are the duty social worker who spoke to the AMHP. What are the local authority’s legal obligations to Natalie and Sam? What actions do you take? And what are the legal grounds for those actions?
As Natalie and Sam are now alone in the house, the AMHP has a duty to inform the Children’s Team of the children’s current circumstance. Part 3 of the Children’s Act (CA) 1989 defines Children in Need as “unlikely to achieve, maintain or have the opportunity of achieving, maintaining a reasonable standard of health or development without the provision of services by a local authority. Or the health and development of the children in need is likely to be significantly impaired or further impaired without the provision of such service” (CA1989, S17). Local authorities have the duty to safeguard or promote the welfare of the children within their area who are in need by providing a range of appropriate services and accommodation (CA1989, S20).
Brammer (2007) states that Local authorities have a duty of consultation before making decisions around looked after children. Therefore, they must find out the wishes of the children concerned, and the parents. The local authority should also consult with others (including family members who may be seen as relevant to the matter in hand (CA 1989 s22 [4]). However, in this case Sharon will not be in the position to be consulted just yet, therefore under the Mental Capacity Act (MCA) 2005 she may not have the capacity, but may likely gain capacity again in future therefore she will still maintain responsibility. There is a duty to maintain the child and provide contact with parents, family members and friends. This is not an absolute duty and will depend on the practicalities of individual cases, and where people may be contactable (Ball and Macdonald, 2002). If it is not practicable to place the children with family members or friends (or none of them are contactable) the social worker can place Natalie and Sam in a residential home (Ball and Macdonald, 2002). But they should place them as near to their parent’ home possible.
- You are the allocated social worker for Natalie and Sam. How do you now proceed? And what are your powers and duties?
There are a number of issues the social worker will now have to consider. Firstly, the children will now be separated as their African aunt, Rose, is only able to care for Natalie on a short term basis, as a kinship carer. Sam would then become a looked-after child. Sam will remain under the supervision order, and Sharon can be relinquished of her duties whereby the local authority can now consider adoption (Ball and Macdonald, 2002). The process of review will need to take place at the point which Sharon continues to remain in hospital and says she can no longer care for the children. However, it should also be ascertained whether Sharon had the capacity to make the decision at the time she relinquished responsibilities of the children.
Fostering should now be the step forward. This may be short or long term, it may need to be provided in an emergency, as part of a planned provision of respite care by the local authority or private carer. Foster carers do not acquire parental responsibilities by virtue of the fostering arrangement. This is governed by the Fostering services Regulation (FSR2002, s11) which provides for the approval process of foster carers and written placement agreements. The regulation states that due consideration is given to the child’s wishes and feelings, and dependant on their age and understanding, and considering religious, cultural, racial and linguistic persuasions. The clash here is between Natalie being raised by white parentage and Rose coming from an African background, and the need to promote upbringing of children by their families. These issues will be unravelled by referring to the fostering service to carry out an assessment of any person considered to be suitable to become a foster parent. Since the foster carer is a kinsperson, the rules to kinship caring apply. This arrangement is where a child who cannot be looked after by their parents goes to live with a parent or a family friend (The Children’s Legal Centre, 2008). Rose can care for Natalie under the fostering arrangements for kinship care. Davis (2009) states that where a local authority is satisfied that the immediate placement of a child is necessary they may place a child with a foster carer which is not approved for a six week period. FSR, 2002 section 38 explains the conditions under which this can be met, and the carer can be a relative or friend.
- What are the local authority’s responsibilities towards Sam as a looked After Child and Natalie who is placed with a kinship carer?
In terms of the local authority’s responsibilities, Sam and Natalie will both still be classified as Looked after Children therefore will fall under the same procedures, even though Natalie is under kinship care. The local authority would have obtained an Interim Care Order (ICO) enabling it to have parental responsibility. The care order is made if the court believes the child may suffer if the child is not under any parental control (Section 33 CA 1989). The court makes it a duty for the local authority to receive a child into their care once they receive a care order. But the local authority will also have the power to determine to what extent a parent or guardian of the child may meet his parental responsibility, particularly if they wish to safeguard the child or promote his welfare. (OPSI, 2008)
CA 1989 Section 38 stipulates the duties the local authority will have towards children and young people it looks after. This will include providing suitable accommodation near Sam’s parent’ home as contained in CA 1989 Section 34. If the authority is unable to find a close enough accommodation to Sharon’s house then the authority should make the money available to facilitate such contact (Ryden, 2005). The next responsibility would be to facilitate safe contact by family members and other relevant people. The local authority has a duty to provide Sam with a care plan which must be reviewed every 6 months after the initial review period of 1 month and 3 months.
The local authority should also consider Sam’s religious, cultural and linguistic background when placing him, though this may not necessarily be a duty for the local authority but will be seen as good practice (CA) 1989 Section 22 (5) (c).
In terms of health it is a duty for the local authority to provide regular medical examinations, as in Promoting the health of looked after children (DH, 2002a).
The local authority has a duty to support the educational achievements of Looked After Children as stipulated in the Local Authority Social Services Act (LASSA)1970 Section 7, and in Care Matters (DfES, 2007) and also in s52 CA 2004. The duty of a local authority under sub section (3) (a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement. (Crown Copyright, 2004) Social workers work in partnership with the local authority in consulting with the Local Education Authority (LEA) to ensure that the right educational provisions are in place. The authority will then need to place Sam in a school within 14 days of obtaining an accommodation (Brammer, 2007).
Despite the duties the Local Authority must follow, Sam and Natalie’s wishes must be taken into account throughout, apart from consent to accommodation (Davis, 2009).
- What actions do you and the local authority take and on what legal grounds?
The CA 1989 section 47 places an immediate duty on the local authority to investigate a child’s circumstances when there is information that gives reasonable cause to suspect that a child who lives or is found in their area is suffering or is likely to suffer significant harm. Since the allegation involves a foster carer, the procedure for investigation is outlined in the Carers and Disabled Children’s Act (CDCA) 2000 and the London Child Protection Procedures (LSCB, 2007) which calls for a strategy meeting to be held within three working days involving relevant professionals (including an OFSTED representative, as it involves a child) who are expected to determine a course of action. The police should be involved because there may be a criminal act to investigate. Sam must have a medical examination within 24 hours of the bruises being identified by his aunt. The Commission for Social Care Inspectorate (CSCI) are to be notified of the incident against Sam since they regulate and inspect registered carers.
The major purpose of the investigation will now be to protect Sam as best as possible. Therefore a decision will be made as to whether to place Sam on the Child Protection Register. However, the preferred option might be to suspend the services of the perpetrator and any other children under his care.
Sam will need to be interviewed by an independent social worker trained in attaining best evidence, which promotes impartiality throughout the investigation (Brayne and Carr, 2008). If the allegation is substantiated the perpetrator may be asked to leave the home under the Domestic Violence Act (2004). A fostering panel will take place to review the situation. Every Child Matters clearly states that the police should be informed before telling the person who is subject to the allegation because a criminal investigation might take place (DfES, 2006).
- As their supervising social worker you need to advise them. What would you discuss with them in relations to the legal options?
Under the Care Standards Act 2000 adoption agencies are regulated by the Commission for Social Care Inquiry (CSCI). The social worker will follow the Local Authority Adoption Service (England) Regulations (2003) which provide a children’s guide to adoption services for children and prospective adopters. The social worker in an adoption case is likely to work with the children’s intended adopters, family members and other relevant parties (Brammer, 2007). The Adoption and Children’s Act (ACA) 2002 introduces provisions which obliges the court to consider arrangement for contact. Adoption and placement orders can only be made by the court. LASSA 1970 s7 provides National Adoptions Standards that must be met by the Local Authority. A few of these include, the child’ need for a permanent home to be discussed at the review meeting, a suitable adoption match. Statutory guidance to ACA 2002 is also contained in DfES (2005).
Before making a placement order the court must consider arrangements or proposals for contact, then invite the parties to comment under s26 ACA 2002. At the Adoption application stage, s46 (6) requires that before making an adoption order the court must consider arrangements made by the long term carers. If the court considers that an order for contact should be made this will be covered under s8. It is no longer possible to attach contact conditions to an adoption order. Contact will also be considered as part of subsection f in the welfare checklist (ACA2002, s1 (4)) as a necessary relationship which Natalie and Sam will have for their relatives. Once the adoption order has gone through, the biological parents are no longer parents under the CA 1989.
The court must not make any order under the Act unless it considers that making it will be better for the child than not doing so (ACA 2002, s 1(6). The court is obliged to consider whether other orders such as supervision and special guardianship might be more appropriate than adoption. The court has to consider the HRA 1998 due to the obvious interference with family life that an adoption order will effect as in the case of RE M(A Minor) (Adoption or residence order) [1998] FLR 520.
There are conditions in place for making an adoption order. Parents or guardians should consent to the adoption (ACA 2002, s20). If parents do not consent a placement order can be obtained (ACA 2002 s21). When the child has lived with the prospective adopters for up to 10 weeks, the adopters may apply for an adoption order. The adopted person will be treated by law the same way as if the adopters had given birth to them, and any other holder of parental responsibility is removed (ACA 2002 s67). The Adoption agencies Regulations 2005 require the local government to establish an adoption panel. DH (2002, p36) states that:
“The role of the adoption panel is to provide an independent perspective, informed by a broad range of expertise to monitor and quality assure social work recommendations on adoption cases”.
The panel must decide whether adoption is in the best interest of the child, the suitability of prospective adoptive parents and matching the child to the adoptive parents.
- What are the CMHT’s responsibilities towards Sharon?
Brammer (2007) states that a patient can be discharged from hospital as soon as he or she is found not to be suffering from a mental disorder. It is then the duty of the CMHT to provide after care services until Dorothy is no longer in need of these services (MHA1983, s117). The decision will be made jointly by the health team and the CMHT. However, Dorothy is under no obligation to accept after care and has a legal right to refuse, although in reality if the patient is receiving medication and no longer takes them or plans not to take them they can be detained further. The CMHT must also complete a multidisciplinary care plan for after care. This must also include a risk assessment for discharge (DH, 1995).
Sharon can receive supervised discharge under the Mental Health (Patients in the Community) Act (1995). This will ensure that she receives after care services which the CMHT must support the application. The CMHT will have to devise a care plan once Sharon is out of the hospital. However, the CMHT must also consider Sharon’s wishes as well as her needs and that of relevant others in Sharon’s life such as family members (Clements, 2004). The Care Plan will follow the model of the Care Programme Approach (CPA). DH (1995) also stipulates that CPA should be applied to patients who are accepted by specialist psychiatric services. The National Service Framework (NSF) for Mental Health (DH, 1999) sets standards as to what the CPA must adhere. Standard 4 states that Sharon must receive care which increases engagement and reduces risks. The CPA must give Sharon a copy of her care plan which is regularly reviewed. Services must be accessed all the time.
The local authority will assess, plan, review and coordinate the range of treatment, care and support needs for Sharon under the CPA, while the service user will be involved throughout the process. FACS may apply with regards tackling inequalities to ensure that those who meet the eligibility criteria will receive the service, based on assessment of individual needs. The local government will then be able to fund those who are mostly in need. However, the CPA is not a measure of eligibility. If support under the CPA arrangement is needed this will depend on a number of factors including risk of suicide, self harm, relapse, abuse and exploitation (DH, 2008a)
- What are the local authority’s powers and duties towards Dorothy and Sharon?
The Local Authority has the power to make arrangements to promote the welfare of older people (under the Health Services and Public Health Act 1995) though they will not have the power to make the person take up the service. Under the National Health Service and Community Care Act 1990 section 47 the Local Authority has a duty to undertake an assessment of the needs of an individual for community care services. Dorothy can be assessed under the Fair Access to Care Services (FACS) 2002 which has four eligibility bands to help the local authority ration resources (Brayne and Carr, 2008).
The local authority has a duty to inform Sharon and Dorothy of any other services that they or any other organisation provides for people with disabilities as contained in the Disabled (Services, Consultation and Representation) Person’ Act 1986 section 1. Dorothy can also receive the relevant service for her health and social care needs, as contained in the National Framework for Older people (DH, 2001). The Local Authority however, does not have the power to impose any service against Dorothy’s wishes, and respect her rights to take risks. The important issue in this case is to realise the capacity a person has, and balance this with the duty of the local authority to minimise risks. This will make it easier for social workers to deal with ethical dilemmas of this nature.
The local authority has a duty to offer Dorothy and Sharon direct payments for her to purchase services of her own choice and to choose her own support staff where necessary. This is covered in the Community Care, Services for Carers and Children’s Services (Direct Payments) Regulations 2003 section 1 and the Community Care (Direct Payments) Act 1996.
DH (2001) guidelines also expects the Local Authority to set up a Single Assessment Process which aims to speed up response time for older people who require service and reduce duplication in assessments. However, a critic of this process is that in order to improve practice and responses, more time was actually being spent by professionals.
- Why might they have been refused bail? What are the legal responsibilities of the Youth Justice team in relations to Natalie and what options are available to the court?
If a juvenile is charged with an offence, the custody officer will have to consider bail. If bail is refused the child must be remanded to appear before the youth court at the earliest opportunity. Until then the child must be accommodated by the local authority (PACE 1994, s38 (6). If the child is over the age of 12 as in Natalie’s case then this will be a secure accommodation. The police can therefore refuse bail if they believe it is in the best interest of the child to do so. Other grounds for refusing bail as stated in PACE s 38, will not apply in Natalie’s case. Brayne and Carr (2008) believes that the best interest judgement may apply where Natalie will be transferred to a local authority accommodation pending trial, which may offer more prevention from Natalie committing another offence while awaiting trial. This implies that Natalie will no longer stay with her Aunt Rose.
Natalie will then receive services from the Youth Offending team (YOT) which are required by the Crime and Disorder Act (CDA) 1998. Every child matters also set out key outcomes for children with respect to early intervention and prevention (Home Office, 2003). The Children Act 2004 then provided structural changes for the delivery of children services requesting for the police authorities, probation boards and the YOT to cooperate in improving children’s well being (DfES, 2004).
The YOT must follow the Youth Justice plan (CDA1998, S40) in order to meet national objectives. Responsibilities of YOT include making assessments of children and young persons for rehabilitation programmes to prevent reoffending, where the young person receives a reprimand or final warning; provide support for children and young persons remanded or committed on bail.
Conclusion
The cases outlined above included relevant areas of four care provisions where the Local Authority has powers and duties to act. These are mental health services, children and adoption services, the Youth justice system and older people’s services. These cases have shown that the law plays an important part in social work practice. While the law defines many areas of duties demonstrated in the cases which govern practice, there are also areas where social workers make decisions without being subject to the law. The assignment tackled ethical issues where this conflicts with both personal and professional values. The key issue is between preserving the patient’s autonomy as enshrined in the 1998 Human Rights Act, and protecting the patient and others. It is also useful to promote non consensual intervention when necessary in order to ensure the appropriate balance of rights, obligations and interests. The Local Authority, however, does not have the power to impose any service against people’s wishes, and must respect people’s rights to take risks. The important issue in this case is to realise the capacity a person has, and balance this with the duty of the local authority to minimise risks. This will make it easier for social workers to deal with ethical dilemmas of this nature.
REFERENCES
Ball, C and Macdonald, A (2002) Law for Social Workers (4th ed), Aldershot, Ashgate Publishing
Brammer, A. (2007) Social Work Law, 2nd edition, Harlow, Pearson Longman
Brayne, H and Carr, H (2008) Law for Social Workers (10th ed) Oxford, Oxford University Press
Clements, J (2004) Community Care and the Law, London, LAG Education and Services Trust
Davis, L (2009) The Social Workers Guide to Children and Families Law, London, Jessica kingsley
DfES (2007) Care Matters: Time for Change, London, The Stationary Office
DfES (2006) Every Child Matters: Working Together to safeguard Children: a guide to inter agency working to safeguard and promote the welfare of children, London, The Stationary Office
DfES (2004) Every Child Matters: Change for Children in the Criminal Justice System, London, The Stationary Office
DH (2008) Code of Practice, Mental Health 1983, London, The Stationary Office
DH (2008a) Refocusing the Care Programme Approach: Policy and Positive Practice Guidance, Crown Copyright
DH (2006) Bournewood Briefing Sheet, London, The Stationary Office
DH (2002) A Fundamental Review of the Operations of Adoption Panels, London, The Stationary Office.
DH (2002a) Promoting the Health of Looked After children, London, The Stationary Office.
DH (2001) National Service Framework for Older People and System Reform, London, Crown Copyright
DH (1999) National Service Framework for Mental Health: Modern Standards and Service Models, London, Crown Copyright
DH (1995) Building bridges: A guide to arrangements for interagency working for the care and protection of severely mentally ill people, London, Stationary Office.
Hardcastle, D, Powers, P and Wenocur, S (2004) Community Practice: Theories and Skills for Social Workers, Oxford, Oxford University Press
Home Office (2003) Youth Justice – The next Step: Companion document to Every Child Matters, London, Crown Copyright
Home Office (1998) Establishing Youth Offending Teams, London, and Crown Copyright
London Safeguarding Children Board (2007) London Child Protection Procedures, 3rd edition, London, LSCB
Mandelstam, M. (2000) An A-Z of Community Care Law, London, Jessica Kingsley Publishers
Potter, M (2007) Mental Health Capacity and Non Consensual Intervention: A Human Rights Perspective, Northern Ireland Human Rights Commission Review, Issue 5, summer 2007,
Peay, J (2003) Decisions and Dilemmas: Working with Mental Health Law, Oregan, Hart Publishing
Ryden, N (2005) Family Support in Children and Families. In Jowit, M and O’Loughlin, S (ed) 2005, Social Work with Children and Families, Exeter, Learning Matters Limited.
Websites
Office of Public Sector Information (OPSI, 2008) Care order:
www.opsi.gov.uk/acts/acts1989/ukpga last accessed 05/11/2008
The Children’s Legal Centre (2008) Kinship Care:
http://www.childrenslegalcentre.com/Resources/CLC/Documents/PDF%20A-MKinship%20care%20leaflet.pdf accessed 02/04/09
Statutes
Adoption and children’s Act 2002
Adoption agencies Regulations 2005
Carers and Disabled Children’s Act 2000
Children’s Act 1989
Children’s Act 2004
Community Care (Direct Payments) Act 1996.
Crime and Disorder Act 1998
Fostering Service Regulations 2002
Health Services and Public Health Act 1995
Human Rights Act 1998
Local Authority Social Services Act 1970
Mental Health Act 1983
Mental Capacity Act 2005
Mental Health (Patients in the Community) Act (1995)
National Health Service and Community Care Act 1990
Case Law
Re M (A Minor) (Adoption or residence order) [1998] FLR 520.