The following overview of the health and social care process indicates the kind of topics or search terms which site visitors might benefit from looking at.

Each topic mentioned below as a link, has a free introductory section, and a list of the further questions which have been analysed and explored in the subscription only part of the site, attached to it. Highlighted topics without a link are dealt with as part of a wider topic, so using the site~s free Search facility should bring those issues up for viewing, but they may be in a subscription-only part of the site.

OVERVIEW of legal framework for COMMUNITY CARE and HEALTH SERVICES

Adults' social services are described in Acts of Parliament relating to community care. Services involve the expenditure of public money, so there is no question of just asking for what one wants or needs - one has to qualify first. To do this one has to come to the notice of a local authority, and this usually occurs through a process called referral and screening.

Qualifying for services involves coming within one of the following provisions and qualifying under the local authority's criteria for how urgent or risky the client's situation has to be before the assessed needs call for intervention by the authority. This is determined by assessment against eligibility criteria.

The form and content of the assessment are not laid down in statute but are being increasingly informed by Directions and guidance from central government. Authorities are obliged to take account of these instructions and recommendations in their processes.

The assessment will involve identifying the needs of the person, deciding whether those needs meet the criteria for necessitating a service from the authority, care planning and either providing an appropriate service from in-house providers or commissioning it from external private and voluntary sector providers. There are standards in force in the law as to registration with regulators, which protect the client against inadequate service provision regardless of the sector providing the care.

The service might be one of the welfare services under the NAA, to meet social and recreational needs, residential care, domiciliary care, day care, transport to services, or a service under the NHS Act schedule 8, or specialist mental health services from the mental health team, which operates in accordance with Mental Health Law, as well as community care law, under the Care Programme Approach. The needs of the clients, rather than the range of services currently in place are what is supposed to drive development, so even a client~s putting forward problems of a sexual nature or sexuality could give rise to an holistic assessment of need for a community care service.

The fact that some clients are suffer from mental incapacity complicates the issue of assessment because of the general rule that consent is needed to make intervention lawful. This may however be different in situations of necessity.

The role of carers can be supported through assessment, but also intervention to prevent inadequate caring or adult abuse can be justified through the process of assessment and care planning. Adult protection policies (including use of Guardianship, Declaratory Relief, Financial Protective Powers and Remedies and Emergency Powers in the context of Adult Protection, s47 National Assistance Act removal from one's own home on grounds of risk to the public or oneself, and Powers of Entry) are now required as an aspect of human rights law, because of the duty to protect others against inhuman or degrading treatment. In certain circumstances contractors outside the local authority can count as public authorities for the purposes of being sued under the Human Rights Act.

Certain statutory functions allow for a further level of discretionary decision-making on the part of the assessor, as to whether the authority should actually intervene, whilst others require intervention once the criteria have been met. What the client gets, in terms of a particular service or a certain level of service, then depends on whether the nature of the function applicable to the client is to meet need or merely provide whatever the authority thinks it can afford. This distinction is covered in the topic Duties vs Discretions. One of the things which makes a difference between a duty or a discretion situation is the issue of ordinary residence - that is, which authority is or could be liable, with regard to where the person has a settled place of voluntary residence. Another is the question of the client~s status under statute, because (however invidious it might be thought to be), being one type of client or another can actually enhance one~s priority for services and raise it to the level of a right, an entitlement, as opposed to being possibly in line for help. For instance, Disabled Persons are entitled to provision once their needs have been assessed as necessitating a service, whereas Older Persons who are not disabled are only able to hope that a discretion will be exercised in their favour. Clients with a Learning Difficulty or a Mental Health need are also favoured in the hierarchy of duty and discretion. Immigrants and Asylum seekers are subject to special rules for access to public services. The transition from children's to adults' services is one to which the law now pays special regard. Disabled children are given greater priority under one statute than they are under the Children Act 1989 as children in need, so an appreciation of which statute governs which sort of service is an essential practice tool.

In arriving at a conclusion as to what is needed, and whether what is needed must be provided by a local authority, the assessor may refer the case to Housing or Health and expect good joint working processes to establish whether the client is entitled to re-housing from the Housing Department, or adaptations or free nursing care, intermediate care or continuing NHS care, courtesy of the NHS, after hospital discharge, or direct from the community. In respect of any NHS input to a care plan, the NHS is subject to legal challenge, and JR and the Health Service explains some of the pitfalls into which the NHS has fallen. Joint working will require proper adherence to principles of Information Sharing and Confidentiality, the Data Protection Act and Access to information rights enshrined in law.

In preparing a care plan, the authority is obliged to take account of the wishes and feelings and preferences of the client, under guidance from central government, but not under any statutory provision. This can lead to a gap between the choice of the client and the authority's statutory obligations under statute, which can lead to disputes, complaints, references to the ombudsman and recourse to legal remedies. There is however, a legal right to oblige the authority to the choice of accommodation of the client, if s/he accepts that a residential or nursing placement is necessary.

In any decisions that it takes, the authority must take care to abide by the rules of Procedural Fairness which exist in the UK, and if it does not, legal remedies will be available to the client.

When commissioning a care plan, authorities must take care not to fall foul of Discrimination law, or the Manual Handling Regulations, the EU procurement framework or the Competition framework. These are all aspects of the law which bite on how the social care duty has to be discharged.

Delay is a problem which is rife in most authorities, through shortage of resources, (because the amount of money allocated to social services within an authority is a matter of political decision on the part of the elected members), the recruitment crisis in social care and the effect on the buoyancy of the private sector of fees disputes and higher care standards being introduced in 2002. Thus any sensible authority will be trying to ensure that staff issues (such as the risk of violence in the course of one~s duties, stress, whistle blowing etc) are taken care of so as to keep staff turnover as low as possible.

After a care plan has been completed, the authority will have the right to charge for most services - charging law requires charges for residential services, and allows them, subject to reasonableness, for non-residential services. The only services which are not chargeable are s117 aftercare services for those released from detention under the Mental Health Act, and assessment itself. For a client who is able to be charged the thought of a Direct Payment may be more attractive, because it gives a measure of control over purchasing a service which suits the individual.

In relation to strategic planning, and control of the finances, many authorities have taken the decision to withdraw from the peripheral areas of social care, to grant fund and otherwise encourage the private sector to move into the market, and to externalise their own provision and National Assistance Act homes and TUPE over their staff to the private sector. In so doing they must be careful not to fetter their statutory discretions, and retain the flexibility to make exceptions in appropriate circumstances.

A     The basic statutory provisions under which social services authorities have powers and duties to provide community care services are:

B    The statutory functions relating to the Health Service can be very quickly stated:

The next section of this topic summarises the statutory qualifying criteria for each of the above statutory functions:

1.   Non-residential welfare services under s29 NAA and LAC 93/10 (and s2 CSDPA - applicable to disabled children by virtue of s28A of that Act)

          Qualifying criteria:

OR

          A chargeable service under s17 HASSASSA 1983, according to a discretionary charging policy.

2.   Residential and nursing accommodation under s21 NAA and LAC 93/10:

          Qualifying criteria:

         LAC 93/10 converts this power into a duty for some client groups.

         A service which must be charged for according to national regulations and charging guidance, assuming the person has income or capital which is able to be taken into account.

3.    Non-residential home help and laundry services and other services under s21 NHSA + sched 8 and LAC 93/10 for prevention/care/aftercare:

          for households where there is someone :

          (qualifying criteria):

or

          A chargeable service under s17 HASSASSA 1983, according to a discretionary charging policy.

4.   Welfare services for older persons under s45 HSPHA

A discretionary power to make arrangements for promoting the welfare of 'old' people: LAC 93/10 elaborates on what these should be:

          A chargeable service under s17 HASSASS 1983, according to a discretionary charging policy.

5.    'Aftercare' services under s117 Mental Health Act 1983