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White papering over the cracks?

 

A very brief look at the draft Care and Support Bill.

 

 

There’s a consultation going on (isn’t there always?)  this time on Safeguarding for adults, and whether some new powers should be introduced.

Firstly, it recommends removing s47 of the 1948 National Assistance Act, which was the power to remove someone from their home. They say, and I tend to agree, that  “Enacted in a very different era, its language and intentions are not compatible with our current approach to community-based support that promotes and protects people’s human rights “

 

I completely agree that it is a dangling remnant of a bygone era when doctors always knew best, and I’m not sure it is deeply compatible with Human Rights and probably should be scrubbed from the statute books.

 

Having said that, I’m not sure that s47 is an active problem – I can recall having only even looked at it as a possibility (and then discounting it) in one case.  I’ve never heard of anyone ever applying for such an order.   [It is interesting, for example, that on the bible on community care law  – Luke Clements and Pauline Thompson’s  “Community Care and the Law”, the section on s47 removal powers is just under a page long and cites no case law about it at all. ]

 

In case you want to know, here is verse, and also chapter

 

47 Removal to suitable premises of persons in need of care and attention. E+W

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)If the medical officer of health certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

 

 

So, I would agree that s47 be terminated with extreme prejudice, but it isn’t going to transform the world we live in.

 

The other big proposal is that there should be statutory principles about adult social care and safeguarding  (along the lines of the principles enshrined in the Children Act) , and to put it right at the beginning  – s1 the general duty of a local authority in exercising any powers under this Act with regard to an adult is to promote that adult’s well-being.

 

Again, I see no problem with that.

 

Then to give clear legal principles as to entitlement to support, including entitlement for carers and the right to insist on this being made by direct payments.   I remain sceptical that direct payments, or personalisation, is quite the magic wand that the Government believe it to be. I can see the concept that an individual should have the resources given to them to decide how they want to spend it on meeting their needs rather than having a paternalistic state decide, but I think in practice, it massively overlooks that adult social care tends to be given to the very most vulnerable members of society who may not be in quite the same position as a Local Authority bulk purchaser of services to achieve such good value for money. Nonetheless, direct payments and personalisation are the miracle cure, and thus we’re going to have them enshrined in legislation until such time as Government decides that passing the buck to vulnerable people to meet their own needs with a small amount of cash doesn’t really work.

 

 

This is a particularly interesting bit – clauses 31-33   – a person receiving a package of support will be entitled to the same package of support if they move to another area [at least until fresh assessments are done].  That is good for the person, certainly.

 

Very bad for the receiving local authority if the first LA realise that the person is planning a move and decides to offer them a ‘moon on a stick’ package of support which is Rolls Royce, knowing that they will only have to provide it for a week before the new LA gets lumbered with it for much longer.

 

It may well be a chance for festering scores to be settled between LA’s – it’s practically a statutory “griefing” mechanism.  [But maybe I am being too cynical, and neighbouring authorities will work together to achieve good outcomes for vulnerable adults moving between their authorities, just as they always endeavour to do now]

 

I do very much like the provision that where a person is placed in area B by Local Authority A, it will be Local Authority A who remain responsible for that person, and that will hopefully resolve a lot of inter-authority bickering.

 

 

There will be for the first time in statute, provisions about adult safeguarding, setting out the duty to carry out enquiries into suspected abuse, and there is discussion about whether the State should be able to apply for a warrant to gain access to a vulnerable person if it is believed they are being abused in order to investigate.

 

 

The consultation on that runs until 12th October, so if you have firm views about whether or not the State should have the ability to seek a warrant to enter the home of someone believed to be a vulnerable adult being abused, and the circumstances that would trigger such a warrant being granted, speak up quickly.

 

There are also interesting ‘smoothing’ provisions aimed at meeting the gap where a young person receives support and assistance from the LA under Children Act legislation until they reach 18, then get nothing at all whilst they wait for a community care assessment of their adult needs. The new proposals will ensure that the package of support they are getting as a child continue up until the community care assessment is done and a fresh package of support put in place.  I have to commend that, as being a gap that needed to be filled and a good proposal for filling it.  

 

All in all, I think this is a decent piece of draft legislation, and doesn’t contain anything that I consider to be outrageous or ill-conceived  (my personal anxieties about personalisation aside, that’s a direction we’ve been travelling in for a long while now)

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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