Service Delivery: Is your client receiving enough assistance? By Anne Edis

Feature

posted 13 Sep 2000 in Volume 5 Issue 6

Service Delivery: Is your client receiving enough assistance?
By Anne Edis

“My experience at Leicester demonstrates that by working with each other, the client in the long term is the beneficiary and by a more open and conciliatory approach rather than a hostile one relationships can develop which are beneficial for all parties. Not all would agree I know.”

Much of the material published in relation to obtaining Community Care Services focuses on the difficulties, which many people seem to face when seeking assistance. Older clients are naturally more aware of these issues and their solicitors and other professional advisers need to be more informed in order to deliver good quality legal advice which is both affordable by the client and also profitable for their advisers. How is this possible?

As a solicitor who has practiced both in the private and public sectors I believe that there are a number of ways in which both the private and public sectors can do better for the older person. One of the most important ways which cannot but achieve more is for those advising older clients to develop better relationships with their public sector colleagues and to exchange information. This was one of the principal considerations put before the strategy committee of Solicitors for the Elderly and was a focal point in the emphasis and development of the regional network. Whilst incipient at the moment these groups cannot but increase – the need for local knowledge is the only way through the piecemeal and variable services available at he moment – to use the current jargon - rationing by postcode. A more equitable system can only be addressed by Central Government.

So how to do this? One significant step is to get to know not only the Managers in the Social Services Department and Health Authority but also their lawyers. Why? Often because the lawyers are not aware of some of the ways in which the operational teams work! This is a simple step to take and can promote better practice on both sides. Also it can highlight an issue, which can apply namely that there is little legal training input at grass roots level.

During my time at Leicester City Council it was good to see the recognition of the need for easy access to legal advice and the request for input in training Managers and Social Workers on current legal issues. This in turn sifted out any poor practice and recognised good practice in different teams and encouraged others to do the same. The result was an improved service and an identification of potential problems at an early stage so that they did not become major issues. Needless to say this did not happen all the time but where it did, what a difference was observed!

Simple matters for the Lawyer are not simple issues either for the Social Worker or the client. One very specific problem is that of Capacity to make decisions How is capacity determined for the particular decision to be made? Often the client, or more often their family, will fail to identify this as a crucial factor, mainly because they do not understand that capacity is decision specific and will remain so if the proposals in Making Decisions are put into new legislative form. In dealing with many service users with a Learning Disability there is often a presumption of no capacity to make any decisions. How wrong this is and it is highlighted in the proposals in Making Decisions by the statement that in future the wishes of the incapacitated adult will be taken into account. To some extent this is already in place in relation to some decisions by the Master of the Court of Protection.

Staff therefore in both the Health Authorities and Social Services need to know the Lawyers view.The joint publication by the Law Society and BMA on the Assessment of Mental Capacity is therefore of importance. Training of Social Workers can help enormously – why not offer this training facility as a way of opening up channels of communication. A recent telephone call to Solicitors for the Elderly opened up that issue – which solicitors are members and do they understand the issue of capacity in relation to an EPA - in this case the Social Worker did but the Solicitor did not! Joint understanding of these issues makes the quality of life better for our clients and protects those who are vulnerable.

What of those needing residential or nursing care or needing a home care package - where can working together help?

Right from the outset when an assessment is needed or requested the input of legal advice and assistance can make all the difference to the package which clients receive. Perusing a draft assessment can highlight matters, which may have been overlooked, or it may clarify issues which are unclear. This can make a difference to the client. Briefing the family as to what questions to ask and who to ask can open doors which would otherwise be closed. Advice to make sure that there is an appreciation that assessment is an ongoing process and not a one off circumstance can ensure cases are reviewed when circumstances change. Unfortunately. Many LA’s are poor at setting out and making infor-mation available to the public. This is a requirement in the National Health Service and Community Care Act 1990. This is not always the case but where it is, has this fact been drawn to the attention of the Director of Social Services? If not – why not? How can things change unless the issue is raised?

A well-drafted letter for a client can work wonders and has the advantage of being inexpensive for them but added value and not unprofitable to the Practitioner. This type of involvement requires time to set up the information systems so that they are available to the client and above all it requires input by the practitioner so that they are familiar not only with the legislative framework, the Regulations and Directions but also with local eligibility criteria and local practice. Unless this framework is there then the quality of advice and the ability to understand the way your client’s LA works will mean that the client will not be best served.

In looking at the longer term for clients it is important to take an overall look at the client’s circumstances and not deal with issues in isolation.

Although the Yule and Robertson judgements already reported in ECA present a harsh regime it is likely that they would be subject to challenge under the Human Rights Act 1998. The Courts are likely to look carefully at cases brought although there are indications that cases launched under Article 3 will be quite difficult to get off the ground.

Advisers need to make sure that they are familiar with their local Community Care Plan, Eligibility Criteria (both health and social services) CRAG as well as the relevant statutes and supporting regulations and guidelines. In doing so they will have a platform for negotiation. Establishing the relevant contacts will mean time can be saved and service delivery speeded up. The keynote is know-how – practitioners need to get the edge in this highly controversial and rapidly developing field. These are personal views and should not be ascribed to any particular authority.

Anne Edis, solicitor and consultant, formerly Senior Solicitor for Leicester City Council, Chairman of Solicitors for the Elderly.