Social Justice And Mental Health Legislation

Introduction

Social justice is based on the concepts of human rights, access, participation and equality of all persons (Bradshaw, 2016). It is concerned with issues like age, race, gender, sexual orientation, religion, nationality, education and mental health. The nature of work done by social workers requires them to promote social justice by opening access and opportunity to everyone, especially those in greatest need. Similarly, in the case study, Gary has been suffering from depression and is homeless is the target of social workers in the United Kingdom. In order to address such issues as above, there is a legal framework to be followed as outlined in various legislations.

The Mental Health Act (1983) is the main legislation that governs the assessment, treatment and rights of people with mental health problems. Gary was admitted to hospital for treatment of a mental disorder as he had a history of depression. Under the Mental Health Act (1983), a patient may be detained and admitted to hospital for assessment and treatment if required (Golightley and Goemans, 2017). From the moment a patient is sectioned the care providers must act in accordance with The Mental Health Act (1983) Code of Practice. In this case, Gary’s mother requested that his section be rescinded and discharged from hospital. The Approved Mental Health Professionals (AMHPs) have a legal obligation to comply with the provisions of the Mental Health Act (1983) which includes the obligation not to hold a patient for more than 28 days and 6 months respectively under section 2 and 3 of the Mental Health Act (1983).

A patient detained under the Mental Health Act (1983) has rights that must be respected. It is the obligation of the AMHPs to inform the patient of their rights including the right to leave the hospital once they are well enough or upon expiry of prescribed period unless extended. This information about one’s detention must be given to them in a way that they understand. A patient should also be informed of the right that a nearest relative has the power to apply for a discharge from hospital. Further, the AMHP must inform a patient like Gary how to get help from Independent Mental Health Advocate who can help in terms of support and appeal against section.

Hospital Leave

It was not made clear if Gary had been warranted Section 17 leave from hospital. Section 17 leave is when a patient is granted either escorted or unescorted time off the ward and this can only be permitted by the patient’s responsible clinician. In order to make that decision, the clinician must consider whether Gary’s mental health has improved enough to ensure the safety of himself and others in the community. Prior to discharge from hospital, as requested by Gary’s mother, it would be essential that he spends some time off the ward. Prior to discharge, Gary’s social worker must also consider that he has previously been a risk to the carers of his elderly mother, Geraldine. The social worker is required to raise a safeguarding concern in relation to this to ensure the safety of both Geraldine and the carers visiting the home. Mody et al (2017) suggests that it mental health patients, just like children should have their best interest considered. Therefore, the LA personnel should consider providing Gary with care that includes shelter away from the mother who is equally in need of care and protection from him.

Care planning

Depending on whether Gary and his mother are in England or Wales, upon discharge from section he will have his care planned under a system called Care Planning Approach (CPA) and Care Treatment Plan (CTP) (Bee et al., 2015).There is a continuing obligation by the social worker through a coordinator to conduct an ongoing review of Gary’s care plan at least once a year. Under the CPA for mental health patients in England, a CPA coordinator offer support after fully assessing the needs of the person concerned. A written care plan should be put in place to cover any risks that Gary may face and the steps to be taken in case of a crisis. Taking into account Gary’s relatives, financial and housing needs, the assessment and care planning should aim at taking care of his needs including housing needs.

Privacy

Patients with mental health problems are vulnerable persons by virtue of their mental disorder and must therefore be protected. Any information given to a social worker is strictly confidential and no personal information about Gary should be shared with any person or institution including his attendance. However, there are exceptions to this rule where the patient gives his express consent to disclose information. There are also instances when the law will require social workers to break confidentiality because of serious offences other than misdemeanours. Gary can also make a request in writing whenever he wishes to access his personal records. These rights and obligations are provided under the Data Protection Act (2018).

Equality

Disability is a protected characteristic and a person is considered to have disability if he has mental impairment and the impairment has a substantial and long term adverse effect on his ability to carry out normal daily activities (Compton, 2015). Therefore, by virtue of his mental health problem can challenge discrimination against him on that basis. Equally, all healthcare professionals have the legal obligation to treat Gary with dignity and without discrimination on the basis of his mental disability. Further public authorities like health services have an additional duty to eliminate discrimination and promote equality of opportunity (Stanhope et al., 2015)

Guardianship

Guardianship can be used to support and encourage a person to get the care needed outside the hospital. Gary’s Local Authority or another person can become his guardian with his consent. For one to qualify for guardianship, they have to be 16 years or older, have a mental disorder and must be deemed necessary to protect the person or another (Grundy et al., 2016). Gary fits the above conditions because he is 47 years old, has a diagnosis and history of depression and is now recuperating. Further, Gary is still in need of long-term care but it is not necessary to continue detaining him in hospital. The guardian will have the right to decide where Gary will live. Guardianship lasts up to 6 months but can be renewed. Gary can later apply to the Tribunal for a discharge from Guardianship.

Case Study 2

There are over twelve million children in England and one third of these children are in the social care system (Baywaters et al., 2016). At least 75,000 of the children in the social care system are children in need of care. There are 152 local authorities (LA) in England who are responsible for ensuring and overseeing the effective delivery of social care services for children. The Children Act (2004) assigns duties and responsibilities to local authorities, parents, courts and other relevant agencies in the United Kingdom with the aim of safeguarding children and promoting their welfare. The role of local authorities is based on the concept that children are best cared for within their own families unless their families pose a danger to them or do not cooperate with statutory bodies.

LAs have the responsibility to assess and decide the nature of services to be provided to a child in need. The LA may receive a request from the young carer or a parent of the young carer to assess the young carer’s need for support. Considering that the baby has not been seen by any professional for over six months, it is possible that this can be categorized as a child in need of care. The underlying principle when a child is in need is consideration of their best interest. Therefore, the first thing that the LA must do is to look at whether the decisions they are about to make or have made are in the best interests of the child concerned.

The question that the local authority through the social services must ask themselves is whether a four-month old baby is better placed with Harry or Helen. It is stated that Harry had not been in touch with Helen, the baby’s mother, for the better part of the pregnancy. Additionally, the father of the other two children has expressed concern that Helen is not caring for the older children effectively. He is therefore requesting the custody of the three children. The LA should take into consideration the role of the three adults involved in the lives of the children before making a decision to grant custody and visitation rights to any of them.

Because Harry is presumed to be the biological father of the four month old baby, he automatically gains parental responsibility unless otherwise provided by law. Generally biological fathers gain parental responsibility when they are married to the mother either at the time of the birth or after. In this regard, Harry does not gain any parental responsibility because he has never been married to Helen at any point, it is only that they had a baby together. The other option is if the name of the father appears on the birth certificate of the child and the registration took place after December 2003. Here, there is no information provided indicating that Harry’s name is on the birth certificate of the baby. In other circumstances, the local authorities will consider whether Helen and Harry had signed an agreement that gave him parental responsibility. The LA may also consider whether the court had granted parental responsibility to Harry although this has not been stated in the case study. The biological father of a child has the duty to support the child financially even when they do not have parental responsibility.

Child custody or residence otherwise known as child arrangements can be agreed between parents themselves, if possible. The local authority can thus first exploit that avenue before advising the parties involved to approach the court or a family panel as appropriate (Kostyunina and Valeeva, 2015). Generally, a child can live with either parent provided that the child’s best interests are taken into account. When parties approach the court or a family panel, it will consider a number of factors before it can decide which parent is to take custody of the child. A child’s own wishes will be considered by the court first before any other factor. However, this only applies to older children. In this context, the court will consider whom the two older children wishes to stay with between their mother, Helen and the father. For the four month old baby, the above factor will not be taken into account because it is not yet in a position to decide. A child’s physical, emotional and educational needs must also be taken into account.

The care and supervision of a child will only be undertaken by LA after order is issued by the court. For this to be done, the following criteria must be met: application must be made by the local authority or any other authorised person, a threshold must be met and the court must be satisfied that the child’s welfare requires such an order. Therefore, in this case study, it is the local authority which has the power to apply for care order or supervisory order because without that application, the court has no power to make an order. In such proceedings, the court will appoint a litigation friend to act on behalf of the child.

In particular, the court will only make such orders if it is satisfied that the requisite threshold has been met. According to the Children Act (1989), a court may only make a care and supervisory order where the child concerned is suffering or is likely to suffer significant harm. In Newham LBC v Attorney-General the judge in the case found that the child was likely to suffer harm because the mother was mentally ill and neglected herself and the baby. Additionally the welfare test dictates that the court considers that issuing a supervisory order would be better than making no order at all.

However, in practice the child is supposed to remain with the parent who has taken a major role in looking after them and in the existing family home. In this case it is only plausible that the father of the two older children be granted the custody of them if it can be established that he is indeed capable of taking care of them. There could also be agreements between the parents especially between resident parent and non-resident parents based on the child’s best interests. It means that the non-resident parent will get contact rights unless in exceptional circumstances when the child does not want to be in contact with the parent.

For this case, the three parties can agree on a schedule with the help of local authority on contact with the child. Alternatively, the parents can apply to court for arrangement orders when they cannot come to an agreement between themselves. The court will thus decide whether the circumstances of the case cause potential upset to the child. In that case only one parent may be granted exclusive care of the child. The LA can advise the father of the two children to apply in person for custody or arrangement order of the two children and the four month old baby. In that application he will argue that the mother of the two children who is Helen is not in a position to care for them effectively. He will further state that Harry has not all along been concerned about the welfare of the baby and may not act in its best interest.

References

Cases

Newham LBC v Attorney-General [1993] 1 FLR 281, CA

Legislation

• Children Act 1989 (c.41), London: The Stationery Office.
• Children Act 2004 (c. 31), London: The Stationary Office. Available at: http://www.opsi.gov.uk/acts/acts2004/ukpga_20040031_en_1 (accessed 10/11/19)
• Data Protection Act 2018. London: Stationery Office.
• Equality Act 2010, c. 15. London: The Stationery Office.
• Mental Health Act 1983 (c. 20), London: HMSO,

Journals

Bee, P., Brooks, H., Fraser, C. and Lovell, K., 2015. Professional perspectives on service user and carer involvement in mental health care planning: a qualitative study. International Journal of Nursing Studies, 52(12), pp.1834-1845.

Bradshaw, J. (2016). The Well-Being of Children in the UK. Bristol: Policy Press.

Bywaters, P., Brady, G., Sparks, T. and Bos, E., 2016. Inequalities in child welfare intervention rates: The intersection of deprivation and identity. Child & Family Social Work, 21(4), pp.452-463.

Compton, M.T. and Shim, R.S., 2015. The social determinants of mental health. Focus, 13(4), pp.419-425.

Golightley, M. and Goemans, R. (2017). Social Work and Mental Health. London:Learning Matters.

Grundy, A.C., Bee, P., Meade, O., Callaghan, P., Beatty, S., Olleveant, N. and Lovell, K., 2016. Bringing meaning to user involvement in mental health care planning: a qualitative exploration of service user perspectives. Journal of Psychiatric and Mental Health Nursing, 23(1), pp.12-21.

Kostyunina, N.Y. and Valeeva, R.A., 2015. Prevention and correction of juvenile neglect. Review of European Studies, 7(5), p.225.

Mody, N., Kirby, C., Grech, P., Thompson, H., Turner, F., Runacres, L. and Hamlyn, E., 2017. Implementation and outcomes of a new safeguarding pathway for vulnerable adults presenting to sexual health services. International journal of STD & AIDS, 28(5), pp.520-522.

Stanhope, V., Videka, L., Thorning, H. and McKay, M., 2015. Moving toward integrated health: An opportunity for social work. Social Work in Health Care, 54(5), pp.383-407.