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Practising Law in Social Work

This assignment is my own work. It has not been and will not be presented for assessment of any other module or piece of work which accrues credit for the award for which I am currently studying.

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The aim of this assignment is to analyse and explore a case study and discus the variety of the complexities that are present in the social work profession within the legal framework. This assignment will focus on Case Study 3 (Mr Khan) and will be formed of three main sections. The first section will discuss the definition of law and its relevance to the social work profession. The second section will highlight the main issues of the case study and the statutory law, used in the UK and Scotland, which provides the most appropriate options for all involved and will also discuss the roles and responsibilities of the main individuals. The third section will then provide an overview of any policies which may influence the law outlined in the second section and will conclude the assignment with a summary of the main points.

Statutory law is produced from a variety of different sources. The main sources of law in the UK are: Acts of Parliament, Acts Scottish Parliament, Delegated Legislation, European Legislation and Case Law (this is also referred to as the judicial precedent or judge-based law and is based on the decisions made by the judge previously on common or similar cases). Law can be defined in a number of ways, for example, The Oxford English Dictionary states that Law is, "a rule or system of rules recognized by a country or community as regulating the actions of its members". Essentially, this means that law provides a set of rules and guidelines in which the courts or police can implement if an individual was to deviate from the rules by the use of sanctions. This can include a custodial sentence, work within the community, a fine or injunctions.

For social workers, law is a fundamental aspect of practice as it provides a framework in which it enables the practitioner to recognise the restrictions of their legal powers and the limits of intervention. Having a knowledge of law is essential as: it informs the practitioner of the rights and entitlements of the service user, carers, children and parents and how they can

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Practising Law in Social Work and must be enforced, it also provides a clear outline of the rights and responsibilities of parents/carers or guardians and other professionals in relation to service users. It advises the social worker of their legal responsibilities and their duties to their service users, employers and other professions. It also educates the social worker on the responsibilities of their employers and the duties of other agencies in which they work with.

As highlighted in the introductory paragraph, this assignment will focus on Case Study 3, in which it describes a case in which Mr Khan, an 89-year-old man with dementia who lives with his daughter Jamila (65). This section will explore the law used throughout the UK and Scotland that might be applied in the care and management of Mr Khan. The main legislation that is relevant to this case study is: Adult Support and Protection (Scotland) Act 2007(ASP), Adult’s with Incapacity (Scotland) Act 2000 (AWI), The Mental Health (Care and Treatment) (Scotland) Act 2003 (MHCT), Human Rights Act 1998 and Social Work (Scotland) Act 1968 (SWS). The Social Work (Scotland) Act (1968) is the fundamental framework which underpins social work intervention in Scotland. It outlines the duties of the social worker in the promotion of social welfare of the service users. Section 12(a) states that the local authority has the duty to assess the needs of a service user and so gives the social worker the right to interview and make assessments on Mr Khan and Jamila. It is under section 13ZA of the SWS act, provision of service to incapable adults, in which Mr Khan should be supported. The ASP Act 2007 is used to provide protection to adults who are seen to be at risk of harm and places duties on local authorities (LA’s) to investigate, co–operate and consider support from other agencies and services. It also includes a range of protection orders, they are listed as follows: assessment orders, removal orders and banning orders. ASP 2007 defines an adult as being of over 16 years old. Section 3(1) defines “Adults at Risk” as individuals who: a) Are unable to safeguard their own well-being, property, rights or other interests; b) Are at risk of harm; and c) Because they are affected by disability, mental disorder, illness, or physical or mental infirmary, are more likely to be harmed than adults who are not so affected. It highlights that an adult must meet all three elements to be considered “at risk”. As Mr Khan has been diagnosed with dementia and is often found wandering around his home at night and when confronted becomes physically aggressive, it can be seen that he meets the conditions of the criteria and can be supported as an adult at risk under this legislation. Once it has been established that Mr Khan is an adult at risk it is then the LA’s or in this case the appointed social worker’s (Louise) duty to investigate the extent to which his well-being is compromised by his current situation under section 4 of this act in which it states that local 2

Practising Law in Social Work authorities must “make inquiries about a person’s well-being, property or financial affairs if it knows or believes a) that the person is an adult at risk, and b) that it might need to intervene in order to protect the person’s well-being, property or finances”. This can include visiting the house (section 7) and interviewing the service user (section 8) in order to establish whether intervention is needed.

The Mental Health Care and Treatment (Scotland) Act 2003 (MHCT) was enacted in 2005 and replaced the preceding (1984) act. The MHCT act developed new options of detention, care and treatment of individuals who had a mental disorder. The act outlines the powers and duties of all those involved in the care and/or treatment of those who are living with a mental disorder and provides a wider definition of mental disorder as outlined in Section 328(1) as those who experienced: mental illness, personality disorder or learning disability however caused or manifested this includes those suffering from a brain injury. The principles outlined in the act only apply to approved health and care professionals and those involved in the processes of care and treatment (this includes those outlined in section 3(a) the Scottish Ministers; (b)the Commission; (c)a local authority; (d)a Health Board; (e)a Special Health Board; (f)a National Health Service trust; (g)the managers of a hospital; (h)a mental health officer; (i)a patient’s responsible medical officer; (j)a medical practitioner; and (k)a nurse.) This means that the patient, named person, primary carer, a person providing independent advocacy services, legal representative, curator ad litem, guardian, or a welfare attorney does not have to adhere to these. Section 25(1) of this act outlines the duties and powers of the LA. It states that the La, “(a)shall— (i)provide, for persons who are not in hospital and who have or have had a mental disorder, services which provide care and support; or (ii)secure the provision of such services for such persons; and (b)may— (i)provide such services for persons who are in hospital and who have or have had a mental disorder; or (ii)secure the provision of such services for such persons.” This means that the social worker allocated to Mr Khan’s case (Louise) has the duty to provide care and support services for him as he is suffering from dementia and is not receiving in hospital care. This includes the provision of personal care and support and residential accommodation if needed (Section 25 (3)(a)(i)(ii)).

Mr Khan is being cared for by his daughter Jamila, who has left her job and gave up her own life in order to look after her father. As she is her father’s carer then she is entitled to support under The Carers (Recognition and Services) Act (1995) (TCRS). As part of the community care assessment The Carers (Scotland) Act (2014) was created and passed early February 3

Practising Law in Social Work 2016 (however, it won’t become enacted until 1 st April 2018). This act will provide carers with the legal right to assessment and support and imposes a duty to the local authority to assess the carer’s need for support. This act takes into consideration: the impact the caring responsibilities have on the carer (for example, the exhaustion that Jamila feels when caring for her father), the things that the carer would like to achieve for themselves on day-to-day basis and other pressing issues such as, if the carer feels able or willing to continue their caring responsibilities or whether they would like to work or study etc. The social worker who has been given Mr Khan’s case should discuss with Jamila her right to assessment under section 10 of the Carers (Scotland) Act 2014. It is then, after the assessment the duty of the social worker to discuss with Jamila the evident issues and needs and then together they should create a care and support plan for Jamila and Mr Khan (Section 24(1)(a)). This could include, arranging help around the house as Jamila is 65 and might struggle to cope with it herself. The Act states under Section 24(1)(b) the social worker must make the adult aware if any of the needs are going to be met by providing financial support. This can include the purchase of a laptop so the carer can keep in touch with family or friends. However, in the case or Mr Khan and Jamila, the best way to meet both of their needs would be to provide direct care for Mr Khan. For example, by providing replacement care to give Jamila a break from her caring responsibilities and give her the opportunity to take time to herself. However, this is only possible with the consent of Mr Khan.

. The AWI Act aims to safeguard the interest of individuals who are not able to make decisions for themselves. Due to Mr Khans being diagnosed with dementia, his understanding of his situation is limited and will continue to become more difficult for him. As outlined in Section 1(6)(e) of the Adults with incapacity (Scotland) Act 2000, an individual whom is unable to retain memory of making decisions is seen to have incapacity. It can be assumed that due to Mr Khan’s mental health issues that he lacks capacity to make decisions of his own. This act should be used to provide adults who lack incapacity with protection when decisions need to be made that they cannot make themselves. Under this act it is in Mr Khan’s best interest for Jamila to apply for a guardianship order under section 57 of the AWI act. Guardianship orders are granted by the sheriff court and are used when an individual (mainly family members) wants to gain legal powers in the interest of protection of the adult’s finances, property and welfare, this does not include the power to admit an adult to hospital for treatment of a mental illness against the adults will (Section 64 (2)(a). As Mr Khan has been living in his home with only his daughter Jamila, who has expressed she 4

Practising Law in Social Work cannot provide care for him anymore due to exhaustion, it can be reputed that his welfare is at risk. However, Mr Khan has stated that he would like to stay in his home and has been known to become aggressive when suggested otherwise. One of the main measures of the act is that any action taken should be the least restrictive to obtain the most benefit for the adult. Guardianship orders are the most intrusive measure under this act. However, Mr Khan is an individual whose needs can no longer be met a home and in the interest of his welfare the most appropriate course of action is to move him to appropriate accommodation where he can be cared for professionally. Section 10 of the AWI act lists the role of the LA in relation to the different courses of action outlined in the act. It states that the role of the social worker is to investigate whether the adult’s welfare is at risk (Section 10(1)(d)) and to supervise and support an appointed guardian with functions related to the welfare of the adult (Section 10 (1)(a)). Section 10(1)(e) also states that it is the duty of a LA to provide information to the guardian, welfare attorney or any other person authorised under an intervention order in relation to the conduct of their function where relevant to the adult’s welfare under this act.

Although legislation is important it is just as important to remember that the service user is an individual and they have their own identity in their community. It is believed that Mr Khan is of an Asian/Indian background and therefore his cultural beliefs and values must be considered in the legislative framework. The Human Rights Act 1998 (HRA) states the freedoms that all individuals are entitled to regardless of their citizenship or nationality. Under Article 14 of this act it states that all individuals are entitled to have their rights and freedoms without discrimination on any ground (this includes sex, race, colour, language, political views, religion, nationality, property, birth etc.). Thompson (2012) argues that social work practice that does not take into consideration discrimination and oppression cannot be defined as good practice and states all social work intervention either reduces or adds to the discrimination experienced by the service user. The Equality Act 2010 emphasises the importance of anti-oppressive and anti-discriminatory practice. It states that, all local authorities must consider the socio-economic disadvantages the individual may be facing when making decisions. Under this act LA’s have the duty to ensure such decisions are made in a way in which reduces the inequality of outcome for the service user (Section 1(1)). This means that any decision that is made by the social worker assigned to Mr Khan’s case must take into consideration the disadvantages he may experience in relation to his age, race, religion or cultural background when exploring the options of intervention.

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Practising Law in Social Work Policies and Legislation come hand in hand. Policies are created by the government as a response to a particular societal issue. This means that as society changes, policies change. Therefore, policies have a direct impact on legislation but they can also exist on their own right. As a consequence of this, policy has a direct impact on social work practice. There is an abundance of policies exercised in both the UK and Scotland which relate to Mr Khan and Jamila’s situation. However, this assignment will only cover three of these: Scotland’s National Dementia Strategy (2010), Better Outcomes for Older People: Framework for Joint Services (2005) and Integration of Adult Health and Social Care in Scotland (2012/13). Scotland’s National Dementia Strategy was published in 2010 with the aim to tackle issues and areas that require change regarding the treatment and care of people with dementia over the following 3 years and on a longer-term basis. The main focus of this strategy is on the improvement of; the support and information received by the carer and the person with dementia receives following the diagnosis and; the response to dementia in a general hospital setting. This includes alternatives to hospitalisation and a more fitting plan for discharge. The strategy means that, for Mr Khan, he can be placed in a residential or supported housing facility which provides support and security instead of a hospital or dementia ward. The Better Outcomes for Older People: Framework for Joint Services (2005) was created to promote the integration of services for greater outcomes for the service user and their carer(s). It provides a guideline in which local authorities and the local the health boards should follow when providing joint/integrated services. This can include, equipment and adaptations and extra care housing. All with the aim to provide augmented support to older people in their own homes. The framework’s greatest emphasis is on integration to provide the best services in order for the elderly people to live as much of a normal, independent life as possible with more control over their own care and environment. Although the initial option was for Mr Khan to be placed in a care home, this policy provides him with the freedom to be cared for in his own home and could be more beneficial to both him and Jamila. In December 2011, the plan of integrating health and social care in Scotland was announced by the Scottish Government. This has since been granted royal assent and is now known as The Public Bodies (Joint Working) (Scotland) Act. The main purpose of the act is to promote best practice and provide a greater quality of care. It sets a requirement for health boards and local authorities in Scotland to work in partnership to provide services for all adults. However, this makes the two care sectors jointly accountable for the development and delivery of services. This provides adults with a better quality of care as the professionals

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Practising Law in Social Work involved will have a wider view of their issues and a variety of perspectives to call upon when looking for the best outcome.

To conclude this essay, it is important to highlight that all legislation and policies are created as a consequence of the responses of others and therefore, are always changing. It is also important not to forget the individual’s identity when looking at options. After considering all options for Jamila and Mr Khan, the best option for both is for Mr Khan to remain in his home and receive in-home care as taking him away against his wishes may cause him to become more aggressive than necessary. For Jamila, the in-home care will ensure that she won’t be the sole carer for her father and gives her respite from her caring duties. It will give her time to herself and in turn, will eradicate if not reduce her feelings of exhaustion and loneliness.

References Adults with Incapacity (Scotland) Act (2000) Code of practice, Edinburgh, The Stationery Office

Adults with Incapacity (Scotland) Act 2000 A short guide to the Act. Available from http://www.scotland.gov.uk/Resource/Doc/217194/0058194.pdf

Equality Act 2010 Available at: http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015_en.pdf

European Convention on Human Rights Act. 1950. Available at: http://www.hrcr.org/docs/Eur_Convention/euroconv.html

Human Rights Act. 1998. Available at: http://www.legislation.gov.uk/ukpga/1998/42/contents

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Practising Law in Social Work Scottish Executive (2005). Better Outcomes for Older People: Framework for Joint Services. Edinburgh: Scottish Executive; May 2005. Available at: http://www.scotland.gov.uk/Publications/2005/05/13101338/13397

Scottish Government (2010). Scotland’s National Dementia Strategy. Edinburgh: Scottish Government; June 2010. Available at: http://www.scotland.gov.uk/Resource/Doc/324377/0104420.pdf

Scottish Government (2011). Promoting Excellence: A framework for all health and social services staff working with people with dementia, their families and carers. Edinburgh: Scottish Government; June 2011. Available at: http://www.scotland.gov.uk/Resource/Doc/350174/0117211.pdf

Scottish Government (2012). Integration of Adult Health and Social Care in Scotland: Consultation on Proposals. Edinburgh: Scottish Government; May 2012. Available at: http://www.scotland.gov.uk/Publications/2012/05/6469/0

Scottish Government (2013). Integration of Adult Health and Social Care in Scotland: Consultation Analysis Report. Edinburgh: Scottish Government; December 2012. Available at: http://www.scotland.gov.uk/Publications/2012/12/1068

The Scottish Executive, 2000, The Adults with Incapacity (Scotland) Act 2000, HMSO Scotland: Edinburgh

The Scottish Executive, 2003, The Mental...