Carer’s legal rights: Dispelling the myths

1. Carer’s legal rights: Dispelling the myths Activity six powerpoint Information correct as of May 2012

2. “Close family members have to provide care to a member of their family if they need it.” Everyone has the right to choose whether to care or not. There is no legal obligation to care for a close family member. TRUE FALSE FALSE Statement one

3. “All carers have the right to have their views taken into account when social services is carrying out a community care assessment of the cared for person.” Social services must consult with carers when undertaking a community care assessment and take account of both the disabled person and the carer’s wishes and preferences. TRUE TRUE FALSE Statement two FALSE

4. Policy guidance to the NHS and Community Care Act 1990 Community Care in the Next Decade and Beyond Statement legislation and guidance Quotations: “care plan should be the result of a constructive dialogue between service users, carer, social services staff and those of any other agency involved.” “preferences of carers should be taken into account and their willingness to continue caring should not be assumed.”

5. “Carers who provide a substantial amount of care on a regular basis have additional rights to a ‘carer’s assessment’.” Carers who provide ‘regular and substantial’ care are eligible for their own assessment carried out by the social services department. TRUE TRUE FALSE Statement three FALSE

6. The Carers (Recognition and Services) Act 1995: applies to all carers of all ages and was the first piece of legislation to consider carers in their own right. Requires the social services department to assess a carer’s ability to care, if they provide substantial and regular care, at the time of the cared for person’s assessment. Supporting legislation and guidance

7. “Carers only have the right to an assessment of their own needs at the time at which the service user’s assessment is being undertaken.” Carers over the age of 16 have the right to their own separate assessment at a time to suit them. It does not depend on the cared for person agreeing to a community care assessment. TRUE FALSE FALSE Statement four FALSE

8. Carers and Disabled Children’s Act 2000applies to all carers over 16 caring for an adult. It enables carers to access an assessment in their own right separate from the cared for person. Supporting legislation and guidance Practice guidance under the Carers and Disabled Childrens Act 2000quotation: “offer an opportunity for a private discussion in which carers can candidly express their views.”

9. “Carers should be informed of their right to an assessment.” The social services department has to inform the carer of their rights to an assessment and the services that are available to support them so that the carer can request an assessment. TRUE TRUE FALSE Statement five FALSE

10. The Carers (Equal Opportunities) Act2004, Section 1 : states the LA must inform carers of their rights to an assessment. Community Care Directions 2004:states social services must provide up to date information in accessible formats on services and entitlements, including the right to an assessment. Supporting legislation and guidance

11. “Prioritising Need in the Context of Putting People First (guidance on eligibility criteria for social care) 2010 only relates to services users and not carers.” There is considerable misunderstanding around the position of Carers in relation to eligibility criteria guidance as given in Prioritising Need in the Context of Putting People First. Eligibility criteria relates not only to cared for person but also to Carers. It is therefore policy guidance to address Carers eligible needs under this guidance. TRUE FALSE FALSE Statement six FALSE

12. Practice guidance under the 2000 Carer and Disabled Children Act: Requires social services to grade the extent of the risk to the sustainability of the caring role into one of the four risk bandings. If categorised as critical social services must take steps to ensure support is available. Supporting legislation and guidance

13. “As carers are not paid council employees, the local authority do not have any legal responsibility to ensure the carer is kept safe from injury when carrying out their caring role.” Although carers are not employees for the purposes of health and safety legislation, the authority nevertheless owes a duty of care to carers. TRUE FALSE FALSE Statement seven FALSE

14. “Carers should always be informed that they have the right to a face to face assessment separate from the cared for person.” Although self assessment forms are a useful element of self directed support, the carer should always have the opportunity for a face to face discussion, separate from the cared for person. TRUE TRUE FALSE Statement eight FALSE

15. Practice guidance to the Carers and Disabled Childrens Act 2000: Supporting legislation and guidance “self assessment forms can help (social services) prepare for assessment…best practice suggests that they cannot replace face-to-face assessment.”

16. “Carers have the right to be supported to stay in work, or to return to work, if this is what they want to do.” Even if the carer is not actively seeking to go back to work or take up a new interest, social services must actively encourage consideration of these areas as part of the carers assessment. TRUE TRUE FALSE Statement nine FALSE

17. The Carers Equal Opportunities Act 2004:Section 2 of the act places a duty on social services to ensure that work, life long learning and leisure are considered when the carer is assessed. Employment Rights Act 1996:Carers have limited rights to take unpaid leave to care for a dependent. Work and Families Act 2006:Introduced flexible working rights. Supporting legislation and guidance

18. “A carer’s service is anything which helps the carer to care, including personal care for the service user to enable the carer to have a break.” A carer’s service does not include any intimate personal care to the person for whom they are caring. TRUE FALSE FALSE Statement ten FALSE

19. Section 2 Carers and Disabled Children’s Act 2000: enables Social Services to provide carers with their own services following an assessment. Policy guidance under the Carers Act 2000 and combined policy guidance 2000 & 2004 Acts: gives examples of carers services such as trips, driving lessons, travel assistance, training, laundry, gardening, housework, mobile phone, short holiday, computer, car costs. Supporting legislation and guidance

20. “The NHS have a legal duty to co-operate with local authorities to work constructively together to support carers.” Although there is no obligation upon the NHS to address the support the needs of carers, the NHS must consider all requests from the local authority to support carers. TRUE TRUE FALSE Statement eleven FALSE

21. NHS Act 2006: requires NHS and local authorities to ‘co-operate with one another in order to secure and advance the health and welfare of people’. Carer (Equal Opportunities) Act 2004: NHS must give ‘due consideration’ to local authority requests to assist in planning provision to carers and requests for a service eg. moving/handling training. Supporting legislation and guidance

22. “Carers can ask to be registered as a carer at their local GP Practice..” Primary care providers have been asked to keep an up to date register of all carers in their practice. TRUE TRUE FALSE Statement twelve FALSE

23. Modernising Health and Social Services White Paper 1998:required primary care providers to identify carers and provide support to maintain their health. National Carers Strategy 2008:committed £150 million in period up to 2011 to enable PCTs to provide emergency and planned respite breaks for carers. Supporting legislation and guidance

24. “A patient cannot remain in a hospital bed once they are medically fit to go home, even if the carer is unwilling or unable to provide care.” A patient needs to be ‘safe for discharge’ in order to return home. Carers cannot be compelled to provide care upon discharge, therefore alternative care may need to be arranged to facilitate a ‘safe’ discharge. TRUE FALSE FALSE Statement thirteen FALSE

25. Discharge from hospital: pathway, process and practice 2003:provides key general guidance and states that: Supporting legislation and guidance “the engagement and active participation of individuals and their carers as partners is central to the delivery of care and in planning of successful discharge” Community Care (Delayed Discharge etc) Act 2003:emphasises importance of social services assessing the carers needs when undertaking a community care assessment.

26. “Disabled parents have the right to adequate services to help them undertake their parenting role and to ensure their children do not take on unreasonable caring responsibilities.” When carrying out a community care assessment it is important to address the whole family circumstances. Young carers should not be expected to carry out ‘inappropriate’ levels of caring. TRUE TRUE FALSE Statement fourteen FALSE

27. Carers Recognition & Services Act 1995 and Carers (Equal Opportunities) Act 2004: both apply to all carers regardless of age. Children Act 1989:young carers are often entitled to their own services as a ‘child in need’. National Framework for Children in Need & their Families:also considers needs of young carers. Supporting legislation and guidance

28. “Carers have the right to be supported in their own right, rather than just as an unpaid providers of care for disabled people.” In the last few years, there has been a cultural shift in the way carers have been viewed. Carers should be seen as individuals who have the right to be socially included and offered the life chances which others enjoy. TRUE TRUE FALSE Statement fifteen FALSE

29. Carers (Equal Opportunities) Act 2004:recognised that carers have the right to work, education/training and leisure opportunities. Coleman v Law judgement Equality Act 2010:requires public bodies to assess their policies to see if they have an adverse effect on carers. Supporting legislation and guidance

30. Carers cannot make major decisions on behalf of the person they care for unless the person lacks capacity under The Mental Capacity Act. The carer can only make decisions if they have Power of Attorney. TRUE FALSE FALSE Statement sixteen “Carers can make decisions on behalf of those that they care for”

31. The Mental Capacity Act, 2005 ; defines ‘capacity’ and ‘best interests’ as well as decision making processes that must be followed. The Mental Capacity Act, Code of Practice, 2005 ; all staff in health and social care should be aware of and working to this code of practice in terms of important decision making. Supporting legislation and guidance