Practical support for carers is a central aim behind the health and community care reforms. It might take the form of help with the nursing and personal care of the client, physical help, respite services, counselling, co-ordination of services, practical help, financial help in extreme cases, supervision, help with medicines etc, or even child care.
Until the year 2001, other than in the area of providing services for children in need, the means for achieving this have involved focusing on the needs of the user, rather than those of the carer.
From the earliest times in social work, even before the 1990 Act reforms, the ability and willingness of a carer to provide help has always been a relevant consideration in the assessment of need of a potential client. This is because the first community care statutes simply assumed assessment would be done, and that professional consensus would determine who needed what; and that decision would always take into account the existing situation in relation to risk and dependency. However it was not until the 1986 Disabled Persons (Services Consultation and Representation) Act that carers got a special explicit mention. Under s8 of the 1986 Act, carers were entitled to have their position assessed where they were providing a substantial amount of care on a regular basis to a disabled person, which care might otherwise have fallen to the local authority to provide.
Later legislation – the Carers (Recognition and Services) Act 1995 – contributed to the centrality and formality of the carer’s position in any assessment of a user’s needs, regardless of whether the user was disabled or not. Ironically, some think that the Act made it harder for carers to have the courage to stop caring, when they could stand no more, because the focus on ability to go on caring made it less clear that carers have the right to stop, so long as they hand over the reins in a responsible way, and do not down tools in a manner which puts the cared for person at risk.
Finally and most recently, new legislation, the Carers and Disabled Children Act 2000, has now been passed to allow carers to ask for an assessment, regardless of the wishes of the service user concerning an assessment for him or herself, and to allow for assessment for direct provision by way of a social service to help sustain their caring role (health services and social care services for that matter have always been directly available to carers in their own right, if they had recognised health or social care needs but those had to be needs on their own account). The Carers and Disabled Children Act came into force on 1 April 2001.
Since 1993, when the 1990 Act came into force, the willingness and ability of a carer to carry on doing whatever it is they have been doing for another person should always have been seen as a relevant consideration in the assessment of the service user, because the assessment function has always been to assess what the needs are and then make a decision as to what those needs ‘call for’ (see s47, 1990 Act. If this means what services must necessarily be provided by the authority, then this evaluation should have always taken into account, implicitly, the user’s own situation, including the existence of a willing and appropriate carer.
Whilst harnessing the goodwill and efforts of most carers for the longest time possible is obviously sensible health and social care management, and crucial to maximising resources for those without carers, authorities must bear in mind that a carer who is no longer capable or willing to care for someone, may do more harm than good to the client, and precipitate a crisis situation.
The background to the need for the law and legal framework to help carers as much as possible, is that once people who need services reach adult life, at the age of 18, there is no-one in law who is obliged to take care of them, other than the State. If carers stopped caring, the State would have to provide.
The problem goes further than that even: not all people needing care at the age of 18 have sufficient mental capacity to make effective choices about their lives. Unless a person attracts the attention of the criminal justice system, through their behaviour becoming a real problem for others (or unless the person is taken into guardianship or sectioned under the Mental Health Act – see Mental Health Law), there is no legal basis for anyone to intervene without that person’s consent, in the matter of their day to day welfare, in a manner which would (strictly speaking) be an assault or an effective imprisonment. Feeding, dressing, moving someone about, all involve touching a person, and touching without consent would be a legal wrong.
However, the law now recognises that it cannot in practice be seen to be illegal, on a day-to-day basis, for regular carers to act in a way which would be agreed objectively, by reasonable people, to be in the best interests of a person who lacks mental capacity. The common law doctrine of necessity has been developed by the courts over the last few years to make it presumptively lawful to attend to a person’s needs without the formality of consent if the carer is closely involved with that person – at least until they are challenged by someone suggesting that their actions are not in the incapacitated person’s best interests.
However, a carer must always be aware that s/he does not have a legal right to make finite decisions about what is in the best interests of such a person, (if there should be a dispute or concern on the part of the relevant health and social services authorities about that question), just because s/he is helping a needy person out, or just because they are married, cohabiting, blood relatives, or even the person’s statutory Nearest Relative under the Mental Health Act.
Only the High Court, in proceedings for declaratory relief, can make those decisions, on the basis of the evidence and expert opinion, if there is an impasse over appropriate daily living arrangements.
Once someone does consent to being cared for, whether that be by a doctor, a hospital, a local authority, a partner, a relative or a friend – a state of dependency on another person can lead to the common law imposing a ‘duty of care’. This does not mean that there is a duty to care, for ever; it means that the carer can become liable, in law, for negligence in the care of the person cared for, or for neglect, if there is a continuous poor state of affairs characterising the relationship, as opposed to a one-off accident. A ‘carer’ can be liable under the civil law, in damages (financial compensation) for negligence, on proof of failure to take reasonable steps to avoid foreseeable harm befalling a person, or under the criminal law for bad cases of neglect. It is also a crime to neglect a person believed to be suffering from a mental disorder (see s127 Mental Health Act 1983).
Where a person’s needs are in fact appropriately met by another, who is willing and able to provide and go on providing what is needed by way of care, then the local authority is not obliged to do anything further. The converse is true, if there is no-one willing and able, so common sense dictates that authorities should work to maximise the prospects of the carer being able to go on caring without undue strain. Carers are entitled to have their ability to go on caring for their loved one assessed as part of the statutory conclusion which the authority must come to, under s47 NHSCCA 1990, about whether the service user’s needs call for a service.