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The Reform of Adult Social Care Law
Frances Patterson QCPublic Law Commissioner
The International Big Event 16 March 2010
Law Commissions Act 1965
“An Act to provide for the constitution of Commissions for the reform of the Law”
It is the duty of the Law Commission to “take and keep under review all the law … with a view to its systematic development and reform …” (section 3).
Function of the Law Commission
“… the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law …”
(Law Commissions Act 1965, section 3)
Who we are
• Chairman (Lord Justice Munby)
• Four Commissioners • Lawyers and Research
Assistants• Parliamentary Counsel• Independent of
Government• Funded through Ministry of
Justice
How we work
• Programmes of law reform – currently in Tenth Programme
• Criteria used to decide on new projects: – Importance– Suitability – Resources
• Stages of a typical law reform project
Our track record in law reform
• Since 1965, we have produced over 300 reports and 190 Consultation Papers
• Two thirds have been implemented in whole or in part
Adult social care project
• Project to review and reform the law for the provision of adult social care in England and Wales
• Announced in June 2008 and expected to run until 2012
• Sponsored by the Department of Health and supported by the Welsh Assembly Government
What is adult social care?
Non-traditional services
Carers’ services
Assessments,personal
budgets, direct payments
Adult protection procedures
Traditional serviceseg care homes, daycentres, adaptations,
meals, home care
ADULTSOCIALCARE
Why adult social care?
• Piecemeal development of the law over past 60 years
• Overlapping and conflicting obligations
• Quantity and complexity
• Outdated language and concepts
• Human rights concerns
• Financial and other costs
Adult social care law
• National Assistance Act 1948
• Health Services and Public Health Act 1968
• Chronically Sick and Disabled Persons Act
• Disabled Persons Act 1986
• NHS and Community Care Act 1990
• NHS Acts 2006
• Carers’ legislation
The structure of the adult social care project
Stage 1: Scoping review (completed)
June – November 2008 Scoping review, identifying areas for reform
26 November 2008 Publish Scoping Report
Stage 2: Substantive project (current)
24 February 2010 Publish consultation paper with proposals for reform
March – July 2010 Undertake broad public consultation on proposals
July 2011 Publish Report with final recommendations for reform
Stage 3: Drafting a Bill (subject to approval)
July 2012 Prepare a draft Bill
Adult Social Care: A Consultation Paper
• Published 24 February 2010
• Four month public consultation running until 1 July 2010
• Our approach to consultation
Provisional Proposals (1): Statutory Principles
• There should be a statement of principles in our future statute
• The role of statutory principles
• What should they be?
Safeguardingadults
Dignityin care
Assumption of home-based
careIndependent
living
Preventionservices
Broadrange
of needs
Person-centredplanning
Choiceand control
Possiblestatutoryprinciples
Provisional Proposals (2): Community Care Assessments
• A single and explicit duty to assess
• An assessment of social care needs and outcomes, and not services
• Regulations setting out how an assessment should be undertaken
Should there be a right to an
assessment on request?
Should there be statutory
recognition of self-assessment?
Provisional Proposals (3): Eligibility for Services
• Current legal framework – a confusing mixture of statutory guidance (eg Fair Access to Care Services) and statute (eg National Assistance Act)
• We propose a single eligibility process for all services:– The eligibility framework will be placed in regulations
– Local authorities will be under a duty to use the framework to set their eligibility criteria, and to meet all eligible needs
• Regulations will specify whether or not a personal budget must be provided
Provisional Proposals (4): Carers’ Assessments
• Single duty to assess any carer who is providing or intend to provide care to another person – not just those providing substantial and regular care
• No need to request an assessment
• The introduction of a mandatory eligibility framework for carers’ services
Provisional Proposals (5): Safeguarding Adults
• A duty to investigate in adult protection cases
• An “adult at risk” defined as a person with social care needs and is at risk of significant harm
• Statutory adult protection boards
• Repeal of the compulsory removal power of older and disabled people under section 47 of the National Assistance Act
• Duties to co-operate in adult protection cases
Provisional Proposals (6): Other Key Proposals
The introduction of a statutory care plan
A single code of practice for adult social care
A broad list of community care services
Section 117 of the Mental Health Act 1983 more fully integrated into community
care law
Statutory duties to co-operate
Should prisoners be provided with community
care services?
How to respond: Address Steel House
11 Tothill Street
London
SW1H 9LJ
Email [email protected]
Website http://www.lawcom.gov.uk/adult_social_care.htm
Blog http://www.lawcom.org.uk/blog/
