Community Care for Adults

Identify legislation relevant to community care for adults and demonstrate how it applies in practice

The Housing Act 1996 (HA) provided special duties for Local Authorities (LAs) in the rental sector for women and their children when coming out of abusive relationships, also any person in need of community care and housing due to an emergency or vulnerable situation, i.e. child or disabled.

The problem is whether the homelessness is intentional or not, if it is unintentional then the duty exists for the LA to provide housing to those in need, the Social Worker will play an important role in helping determine this. In the case of abused women the problem is whether abused woman has a home with her violent spouse and whether that relationship was abusive, in addition there is the added problem whether voluntarily leaving the violent spouse equates to leaving an abusive relationship or whether it is a case of intentional homelessness. The duty owed by the LA is a temporary one is the person fulfils a certain criteria then it owes a two year duty to the person. The criterion is as follows, which can be found in Part VII of the HA:

• Homelessness or threatened homelessness
• Eligible for assistance
• A priority need
• Unintentionally homeless
• Unable to access other suitable accommodation
• Have a local connection to the area

The definition of homelessness has also been expanded in reference to women, i.e. to include those who are experiencing domestic violence from those living within their home; whereby domestic violence is threats of violence as well as actual violence. The definition of priority need include those who are pregnant or in an emergency situation and threatened with violence. It is important for the Social Worker to determine the rights of those in need of community care and whether housing provided by the LA is included.

The criteria of priority need for accommodation is fulfilled if; the person is pregnant; the person has dependant children and they normally reside with this person; a vulnerable person, e.g. mentally ill, old, and/or disabled; a person who resides with a vulnerable person; or a person in an emergency situation, e.g. flood, fire etc. These categories are defined with the Housing Act 1985 s. 59 and taken through a literalistic interpretation, i.e. as is. If a person does not fulfil one of this criteria then no duty to provide housing exists, only the duty to provide advice and assistance at their discretion. The definition of priority need include those who are pregnant or in an emergency situation and threatened with violence. There have been many problems with intentional homelessness because the LA because in the case of Knight v Vale Royal BC  where a woman was regarded as homeless and housed in a women’s shelter, on the basis of domestic violence, but on finding out she was pregnant temporarily left to reside in her parents home to give birth and applied for accommodation under the homelessness provision. Therefore the Social Worker who owes a duty of care to clients is in a position of ensuring that all there legal rights such as housing and benefits are fulfilled.

The Mental Health Act 1983 and Treatment Consent

The MHA 1983 12(2) allows for doctors to treat mental health patients without consent, except in specific circumstances. It is important that the social worker to protect their Mentally Ill clients by protecting their rights as much as possible, otherwise they are vulnerable under the MHA. The problem with this act is that is acts from the presumption that there are no human rights and doctors can treat mental health as they wish except in extreme therapies. This seems to be direct contravention of inherent human rights, because if the person was not mentally ill treatment without consent would be regarded as degrading treatment at the worst and breach of a person’s physical integrity at best.
    

The common law approach follows this approach as well, in F v West Berkshire Health Authority  it was held if a person lacks capacity to give consent then the doctor may do as he or she deems fit. Those detained under the MHA 1983 can decline treatment as long as they meet the Re C Test :

• Can the patient understand and retain the relevant treatment information?
• Does the patient believe it?
• Can the patient weigh the information in the balance to arrive at a choice?

The third part of the above criteria may easily be weighted against the mental health patient because this individual is unsound of mind, therefore how can they balance the information to come to a choice? Therefore giving an opt out for doctors to get consent in most mental health treatments in detention; also Section 63 denies the need for consent if treatment is issued by a responsible medical officer. Under English law mental illness has been broadly interpreted as per B v Croydon Health Authority  in order to include force feeding of an anorexic; however overriding the consent of a sectioned patient can only occur in relation to a recognized mental illness of which the patient has been classified.  It is believed that as long as the actions are done in accordance to the MHA 1983 it would not breach Articles 3 or 8, as concluded in R (PS) v Dr G and Dr W . Therefore the rights of mental health patients are greatly reduced and regardless if the individual can come to a decision about treatment themselves in all likelihood it would be overridden.
Mental Health Act 1983 and Detention:

Also under Section 13 of the MHA it allows for a mentally ill person to be detained against their will and it may be necessary for the social worker to refer the patient for detention under this act. Yet it is necessary that the social worker understands the recent developments of the law and the possible situations where the detention of a mental patient will breach their human rights. At this point the only UK case taken to the European Court of Human Rights was the Bournewood Case (HL v UK)  which was purely in reference to detention which found informal detentions as a breach of Article 5. As of yet the medical treatment and consent procedures have not gone to the European Court of Human Rights but the overriding of consent seems not be proportionate or necessary, where it may not reach the severity of Article 3 it must reach the level of Article 8. The ratio of this case as set by the House of Lords was that Court of Appeal was wrong in its decision that the acts of Bournewood amounted to unlawful detention of L, which would mean that the only method of detaining a person under the Mental Health Act is through sectioning. The House of Lords overturned this position and reaffirmed that the approach of informal admission is perfectly legal, it does not break an individual’s right to liberty as it is voluntary and the individual can leave at anytime. This ratio is especially important on two grounds, i.e. to legitimize this traditional approach to informal admitting so that it gives hospitals an option without having to taking away the an individual’s liberty; however as mentioned the European

Court found a breach; therefore it is necessary that the Social Worker understands that there is a conflict between the current legal situation concerning informal detentions and its illegality under the ECHR. Until this conflict is reconciled the Social Worker is bound by the current legal situation under the Human Rights Act, but before using these procedures all avenues of community care and consented detention should be pursued.