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Ensure those using adult care services and relevant others are aware of their statutory rights

This page is designed to answer the following questions:

NOTE: Although this page has been marked as complete, it has not yet been peer-reviewed or quality-assured, therefore it should be considered a ‘first draft‘ and any information should be fact-checked independently.

For this assessment criterion, you will be required to implement procedures to ensure that service users, their families, carers and relevant others are aware of their statutory rights. Areas that you should consider are provided below.

The Care Act 2014

The Care Act 2014 gives individuals that may require care and support services the right to an assessment by the local authority to check their eligibility. Furthermore, the right to assessment extends to carers. Individuals also have the right to arrange their own care provision through the use of personal budgets and direct payments.

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, along with the Care Quality Commission’s Fundamental standards sets out the minimum standard of care that can be expected. Individuals should be aware of their rights under these regulations, including their right to complain.

The Equality Act 2010

The Equality Act 2010 makes it unlawful for individuals to be discriminated against based on age, gender, disability, sexuality, gender reassignment, race, religion, maternity/pregnancy or marriage/civil partnership.

Individuals receiving care and support services should understand that they cannot be treated unfairly based on these protected characteristics.

Mental Capacity

The Mental Capacity Act 2005 is legislation that protects individuals who may not be able to make decisions for themselves and the Mental Capacity Act Code of Conduct provides guidance about how this works in practice.

Service users should understand that they have the right to make their own decisions and that others should assume that they have capacity unless it can be shown otherwise. In addition, an individual may not be treated as unable to make a decision unless all practicable steps have been taken to support them to do so. Where decisions do need to be made on behalf of an individual that lacks capacity, they must be done so in their best interests and in the least restrictive way.

Mental Health

The Mental Health Act 1983 legislates for individuals being detained in hospitals for assessment or treatment. When detained, individuals still have the right to make a complaint, request a meeting with the hospital’s managers, be provided with information about their detention (including their sectioning papers), make an appeal and obtain guidance and support from an Independent Mental Health Advocate (IMHA).

The Mental Health Act was amended in 2007 to introduce compulsory community treatment orders, which sets rules that must be followed by individuals after being released from the hospital. Failure to follow these rules can result in individuals being detained again.

Liberty Protection Safeguards (LPS)/Deprivation of Liberty Safeguards (DoLS)

Deprivation of Liberty Safeguards (to be changed to Liberty Protection Safeguards in April 2022) are used to place restrictions on a resident or patient that does not have the capacity to consent to care or treatment. This must always be done in the individual’s best interests.

An application for a DoLS must be written by the manager of a care home to the local authority, who must make a decision about whether it will be granted or not within 21 days. An individual’s family and friends should be consulted and the individual has the right to the support of an Independent Mental Capacity Advocate (IMCA)

Power of Attorney

The Mental Capacity Act 2005 introduced the concept of ‘Lasting Power of Attorney‘ (LPA). An individual may appoint an LPA – which is usually a family member or friend – to make decisions on their behalf if they ever lack the capacity to do so themselves.

Individuals that are at risk of losing mental capacity should be informed of this right to help them prepare for the future as part of Advance Care Planning.

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