Legislation

As a carer you have specific legal rights and entitlements as stated in the Care Act 2014, which came into effect in April 2015. Amongst other changes to the way care is provided, the Care Act significantly increased the rights of carers to get the support they need, at the time they need it. More information is available at www.carerstrust.org

Knowing your rights can help you to get the support that you need. We have summarised below some of the most important aspects that we think are useful for carers to know. We have also summarised some elements of the Mental Health and Mental Capacity Acts that may be useful for carers to know. 

Carer rights and legislation 

The Care Act 2014 sets out carers’ legal rights to assessment and support. It came into force in April 2015.

The Care Act relates mostly to adult carers – people aged 18 and over who are caring for another adult. This is because young carers (aged under 18) and adults who care for disabled children can be assessed and supported under children’s law.

However, regulations under the act allow the government to make rules about looking at family circumstances when assessing an adult’s need for care, which means, for example, making sure the position of a young carer within a family is not overlooked. 

The act also contains new rules about working with young carers or adult carers of disabled children to plan an effective and timely move to adult care and support.

What does the Care Act do?

Previously, carers didn’t have a legal right to receive support, although local authorities could provide support at their discretion. This meant that the ability to have an assessment and access a range of support varied depending on where you lived.

The Care Act gives local authorities a responsibility to assess a carer’s need for support, where the carer appears to have such needs. This replaced the law which said the carer must be providing ‘a substantial amount of care on a regular basis’ to qualify for an assessment.

Mental health legislation 

The Mental Health Act 1983 (MHA)
The Mental Health Act (further amended in 2007) is the law in England and Wales that sets out when a person with a ‘mental disorder’ can be admitted, detained and treated in hospital against their wishes. This is either for their own health and safety, or for the protection of other people. Before a service user can be detained under the MHA, their nearest relative should normally be contacted. 

The MHA is divided into sections. A service user can be kept in hospital under different sections for assessment and treatment for mental disorder. It is commonly known as being ‘sectioned’ or ’detained’. Although most sections are for specific lengths of time, the responsible clinician can discharge a section at any time during the detention period if they believe the service user is well enough. The MHA outlines a legal framework that has to be followed to ensure service users’ rights are protected.

The MHA sets out:

• When you can be taken into hospital against your will
• When you can be given treatment against your will
• What your rights are
• What safeguards there are to make sure your rights are protected.

Service users detained under the MHA, and their carers, should receive information on the following areas:

• Their detention and what it means to be in hospital
• How to appeal against the detention and to whom
• How to get help and support from an advocate
• How to complain if necessary to the hospital or the Care Quality Commission (CQC)
• What type of care they can receive once they have left hospital.

Service users who have been detained have the right to receive support from an advocate called an Independent Mental Health Advocate (IMHA). An IMHA can help with a range of things, including:

• Explaining service users’ rights and helping them to exercise them
• Helping service users express their views
• Make a complaint
• Make an application to a Mental Health Tribunal
• Access legal advice.

There are five ‘guiding principles’ that mental health professionals must consider when they take a decision to detain or treat someone under the MHA:

• Least restrictive option and maximising independence: Where it is possible to treat a service user safely and lawfully without detaining them under the act, the person should not be detained. Independence should be encouraged with a focus on promoting recovery.
• Empowerment and involvement: Service users should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered. 
• Respect and dignity: Service users, their families and carers should be treated with respect and dignity and listened to by professionals.
• Purpose and effectiveness: Decisions about care and treatment should be appropriate to the service user with clear aims which promote recovery following best practice guidelines.
• Efficiency and equity: Relevant organisations should work together to ensure mental healthcare services are of a high quality and support safe, timely and supportive discharge.

Mental Capacity Act 2005

The Mental Capacity Act (2005) is designed to protect people who can’t make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an accident. The purpose of this legislation is:

• To allow adults to make as many decisions as they can for themselves.
• To enable adults to make advance decisions about whether they would like future medical treatment.
• To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
• To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
• To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they cannot make a decision at the time.
• To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment.

What is mental capacity?

Every person should be presumed to have capacity to make their own decisions. A person has capacity if they are able to understand the particular issue that they are making a decision about. A decision can only be made for someone else if all practical steps have been taken without success.   

Making decisions for someone

If, having taken all reasonable steps to help someone, it is agreed that a decision should be made for them, that decision must be made in that person’s best interests. The Mental Capacity Act sets out a checklist of things to consider when deciding what is in a person’s best interests. This decision is made by the most appropriate professional who should, where appropriate, take the views of the carer into account.

Power of Attorney
Power of Attorney is a legal document that allows the named person (such as a carer) to deal with the affairs (usually financial) of the person who has chosen them as their attorney. The most common type of Power of Attorney is a Lasting Power of Attorney (LPA) which is drawn up while the person still has mental capacity, to give permission for the person or people to deal with their affairs after they lose mental capacity. There are two types of LPA:

• Property and financial affairs - gives the attorney the authority to make decisions about the person’s financial affairs.
• Health and welfare - gives the attorney the authority to make decisions about the person’s personal welfare and healthcare. 

All Power of Attorney documents can be obtained from the Office of the Public Guardian or from a solicitor. More details are available at: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney or by telephoning 0300 456 0300.

Deputyship
If the person you care for has lost the capacity to manage their finances and an LPA is not in place, you can apply to the Court of Protection to be appointed as a deputy. This is similar to LPA but the Court of Protection oversees the process much more rigorously as it is they, and not the individual, who appoints the deputy.

Nearest relative
Many people confuse the term nearest relative with ‘next of kin’. A person’s next of kin is their closest relative. Nearest relative is a specific legal term defined in the Mental Health Act (MHA). The MHA gives a patient’s nearest relative some rights and powers in relation to detention, discharge and being informed or consulted when certain actions have been taken under the MHA or when these are being proposed. The role of a nearest relative is limited to these rights and powers.

Identifying the nearest relative
Initially, a person has no choice over who is identified as their nearest relative under the rules in the MHA. It is only certain relations who are treated as nearest relative and to qualify they must be living in the UK. These are listed in order as:

1. Husband, wife or civil partner (including a person with whom the patient has been living with for not less than six months)
2. Son or daughter
3. Father or mother
4. Brother or sister
5. Grandparent
6. Grandchild
7. Uncle or aunt
8. Nephew or niece

If there is a husband, wife or civil partner, that person will be the nearest relative. If there is no one in this first group, it is necessary to look in the second group. If there is no one in the second, then the third group should be used, and so on. If there is more than one person in each group who could be the patient’s nearest relative, the eldest takes priority as nearest relative. If the patient is living with or being cared for by any person on the list, this person is the nearest relative. For example, if the patient lives with an uncle or aunt, that person will be the nearest relative, even if the patient has a mother or father. 

Frequently Asked Questions

Mental health legislation

What if I disagree with an assessment that the Trust has made about the capacity of the person I care for?
The Mental Capacity Act puts in place a requirement for professionals to consult the carer or family members when deciding on their best interests. This should always happen when it is practical and appropriate. However, in emergency situations the carer may not be consulted. The professional must take into account all information available to him/her to make a balanced decision.

What happens if the person I care for does not have a nearest relative?
If someone does not have a nearest relative then the county court is able to provide one. However, it should be noted that if you are caring for someone who has lived with you for five years or more (and you are not on the list of nearest relatives), you will still be considered to be the nearest relative.