Cares and Disabled Children Act - Case Study Example

Cares and Disabled Children Act Introduction The first case study concerned the two children, Stephanie and Stephen, who are being neglected by their drug-addicted parents. They are being left to fend for themselves at home, have a spotty attendance record at school, they have both been in foster care previously, their parents are involved in domestic violence, yet the children want to stay with their parents. Analysis The fundamental law that governs this case would be the Children Act 1989. According to this act, the mother has parental responsibility for the children, and the father would also have parental responsibility if he acquired it or if the mother and father were married at the time of the childrens' births (Children Act 1989 (I)(2)). This means that at least the mother has “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (Children Act 1989 (I)(3)(1)). At the moment, she seems to have abdicated this responsibility towards her children, and it is unclear whether the father has acquired this responsibility. Therefore, there should be an evaluation under the Children Act 1989(17). This section defines a child in need as a child who is unlikely to maintain or achieve “a reasonable standard of health or development without the provision for him of services by a local authority” or that the children's health and development will be “significantly impaired” if they are not availed of social services (Children Act 1989 (III)(17)(10). If the children are deemed to be of need, then this section states that a local authority has the duty to “safeguard and promote the welfare of children within their area who are in need and so far as is consistent with that duty, to promote the upbringing of such children by their families” (Children Act 1989 (III)(17)). Before the local authority ascertains what services are needed by the child, it must first ascertain how the children feel about such services and give due consideration to these wishes. Then, the local authority has a duty to facilitate the provision of these services for the children. Among these services are the provision of accommodations and paying of cash in exceptional circumstances, if the children's means are such that this is necessary (Children Act 1989 (III)(17)). Therefore, the fundamental question that needs to be asked is whether these children are “in need” within the meaning of the statute. If this is the case, then it is the duty of the local authority to provide services for these children. If the children's health or development are likely to be significantly impaired, then they will be deemed “of need” and the authority would have the duty to provide services for these children. One way of ascertaining the degree of harm that the children might suffer is by reviewing the children's situation within the context of the ecological systems theory. According to this theory, there are five systems within which every person exists. The first is the microsystem, and this is the immediate setting for the children – their parents, peers, school and neighborhood. If there is something wrong at this level, it affects the development of the child on the other levels. If the content and the structure of the microsystem is deficient in some way, then this will hinder development of the children (Bronfenbrenner, 1994, p. 39). One of the other systems involved in the ecological model is the mesosystem, and this is the relationship between two or more of the child's setting – such as the relationship between the child's home and school. When the child's home life suffers, so does the school life, and vice-versa. The next level is the exosystem, in which the relationship is examined between two more settings, one of which does not directly contain the developing person, yet the person is indirectly affected. An example of this would be the parent's workplace – this might affect the child if the parent works long hours and cannot spend time with the child. The macrosystem consists of the culture surrounding the child. The chronosystem deals with change over time with not only the child but the child's environment (Bronfenbrenner, 1994, p. 40). The children's microsystem is definitely being affected detrimentally by the situation at hand. This is evidenced by the fact that they are attending school irregularly. Since one of the bases for this theory is that what happens at home affects what happens in school, the fact that these children's school life is being affected by what is happening at home is a cause for concern. These children are living with drug-addicted parents who apparently are violent to one another, and the children are probably witness to the violence. The parents are irresponsible, allowing the children to be home alone, and forcing the daughter to cook the meals and look after her younger brother, while the parents are out, probably getting high somewhere. All of this will affect the childrens' microsystem, and when the microsystem is affected, development is affected, and every other system in this theory is also affected. The mesosystem is affected because school and home are linked; the exosystem is affected, because the mother's proclivity for getting high is the setting that does not directly include the children, yet indirectly affects them greatly; etc. Because of this, the children probably fit the definition of children in need of services, so services must be provided, and the local authority will have the duty to provide these services. Yet, the children wish to remain with their parents. This is both because they do not want to go to foster care and also because they seem to genuinely care for their parents. A court must put weight into this. Mabon v Mabon and Others [2005] EWCA Civ 634 state that articulate teenagers are entitled to have their interests protected by representation of their own choosing, which implies that articulate children have a voice that possibly overrides the paternalism of a state who wants to care for these children. Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 states the proposition that children of a certain age have the right to make his or her own decisions when the child has reached an age of sufficient understanding and intelligence. Obviously these cases do not apply to Stephen, as he is only 7, but Stephanie is 13. If she is mature, intelligent and articulate, it would seem that, under these two cases, she has a right to an independent voice that determines her own future, as opposed to the state determining her future. She wants to stay with her parents and, as long as she is making this decision in an intelligent manner, her voice must be respected and represented in a court of law. Another of the laws that must be examined for this situation is The United Nations Convention on the Rights of the Child 1989 (CRC), and the Human Rights Act 1998, both of which are considered to be International Human Rights Laws. Their impetus is the dismal state of the world's children, as they are often exploited, abused, malnourished, abandoned and have no formal avenue of protest. (Charter for Protection). Taking 11 years to draft (Balton, 1990, p. 125), the CRC consisted of 54 Articles that are geared towards the protections of children, the ideals that are espoused in the CRC are the inherent dignity of children and their inalienable rights of justice, freedom and peace; the need to work towards social progress and better standards of life; that children are entitled to special care and assistance; that families are important and need to be protected; that children should grow up in a family filled with love, understanding and happiness; and that children are individuals in society. (Convention on the Rights of the Child). The Human Rights Act 1998 has virtually identical provisions (The Human Rights Act 1998). The CRC is built upon these ideals, and the recognition that children are living in difficult circumstances throughout the world. (Convention on the Rights of the Child). The articles of the CRC range from the right to be raised in a family and not separated from his or her parents; the right to expression, association, peaceful assembly, and the free exercise of thought, religion and conscience; the right to be free of violence, neglect, abuse or exploitation (Convention on the Rights of the Child). One of the paramount concerns of the CRC is the right to an education. (Lenhart and Savolainen, 2002, p. 145). In this case, there are several provisions of these two acts that are implicated, some of them in conflict. One is that a child has a right to an education, an adequate standard of living, be free from neglect, be free from violence, and grow up in a family filled with love. These children apparently are not getting these basic rights in their living situation. They are attending school only sporadically, which means that their right to an education is being hampered. They are apparently being neglected, as they are often home alone and the older child is responsible for the housework and cooking, and their parents are drug addicts. The home conditions are apparently terrible, as the learning mentor expressed “grave concerns” about these conditions. The children are not free from violence, as their home is volatile and there is domestic violence occurring in the home. And, the children are apparently not growing up in a loving home, if their parents are neglecting them and choosing to use drugs instead of parent the children. At the same time, these laws conflict in that they also bolster the argument that the children should stay in the home. For one, the acts proclaim that families are important and should be protected, and that children have a right to not be separated from their parents. Also, children have a right to freedom of thought. These are two provisions that would seem to indicate that the situation is such that the children should stay in the home, albeit with substantial intervention, as the integrity of intact families is one of the concerns of these Acts, and these Act also have a concern with keeping children with their parents. And, since children have a right to freedom of thought, their thinking that they should not be separated from their parents should be respected as well. However, the other argument is that the CRC is geared towards protecting children when they are in situations where they might be forcibly torn from their family, even thought their family cares for them well, such as in war. The portion of the CRC that states that families should stay intact and that children should stay with their parents were probably not written with this particular situation in mind. Therefore, it is debatable whether these provisions of the CRC and Human Rights Act 1998 apply. If the children are deemed in need of care, the Children's Act 2004 governs what actions are to be taken. Arrangements must be made between the authority, the authority's relevant partners and whoever is deemed appropriate. The arrangements must be made with an eye towards the children's “physical and mental health and emotional well-being; protection from harm and neglect; education, training and recreation; the contribution made to them to society; and their social and economic well-being” (Children Act 2004(1)). Conclusion What the outcome will be is that the local authority will deem these children in need of care, and they will be provided services. The social worker will be a part of the team that is provided for these children, and, as such, will have the duty to make sure that these services are provided and facilitate the provision of these services. Some of the services that the social worker will have the duty to oversee will include regular home visits, parenting education for the parents, drug counseling for the parents with regular drug screening, and perhaps inpatient treatment for the parents – although this would be problematic because this would mean that the children would have to go to foster care while the parents are in treatment. But if inpatient treatment is necessary, than this should be provided, because the parents need to get off of drugs if they are going to be effective parents. If the children are really behind in school because of missing so many classes, tutoring may be a service that may be provided so that they can catch up in school. Every effort needs to be taken to assure that these children get the protection they need, yet have the opportunity to stay with their parents and keep the family intact. Sources Used Balton, D. 1990, “The Convention on the Rights of the Child: Prospects for International Enforcement”, Human Rights Quarterly, vol. 12, no. 1, pp. 120-129. Bronfenbrenner, U. 1994, “Ecological Models and Human Development”, International Encyclopedia of Education, vol. 3, pp. 37-43. “Charter for Protection” 1988, Economic and Political Weekly, vol. 23, no. 20, pp. 992-993. Children Act 1989. Available at: http://www. legislation.gov.uk/ ukpga/1989/41/contents Children Act 2004. Available at: http://www.legislation.gov.uk/ ukpga/2004/31/contents Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 Human Rights Act 1998. Available at: http://www.legislation.gov.uk/ ukpga/1998/42/contents Lenhart, V. & Savolainen, K. 2002, “Human Rights Education as a Field of Practice and of Theoretical Reflection”, International Review of Education, vol. 48, no. 3/4, pp. 145-148. Mabon v Mabon and Others [2005] EWCA Civ 634 The United Nations Convention on the Rights of the Child 1989. Available at: http://www2.ohchr.org/english/law/crc.htm Case Study #2 Introduction Mrs. Lambat is an elderly woman from Pakistan who lives alone. Her husband has died. She has had a stroke, with leaves her with mobility issues, so she relies on daily help from family members to help her bathe, prepare meals and dress. She wants to stay in her house. Her family members are becoming overwhelmed, as they all work, so they have turned to the family doctor for help. Analysis There are a variety of statutes that are relevant in this situation. The oldest statute is the National Assistance Act 1948 (NAA 1948). This Act provides for residential accommodations for persons “who by reason of age, disability or any other circumstances are in need of care and attention which is not otherwise available to them.” However, the Act also states that “accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be, determined in accordance with the arrangements under this section.” In other words, this statute provides for care in a residential care facility of some sort, which is what Mrs. Lambat has adamantly expressed that she does not want this – she wants to stay in her home. While this might seem unwise, in that Mrs. Lambat should be open to moving into an assisted care facility, she has the right to make this decision for herself. She is an adult, and apparently does not have a mental disability that would preclude cogent and lucid decision-making, so this is her right to stay in her home. Therefore, the daughters are going to have to find services that come to her in her home. Of course, on the other hand, if the stroke has impaired Mrs. Lambat's ability to make this decision, then this is another matter entirely. If this is the case, then the daughters need to turn to the Mental Capacity Act 2005, which states that if a person is, by reason of being judged incapacitated, then the court may either make decisions regarding the best interest of the incapacitated person or appoint a deputy to make these decisions for the court (Mental Capacity Act 2005). The court may decide that it is in Mrs. Lambat's best interest to go to a residential facility, and may order her to do so, if, and only if, Mrs. Lambat is judged incapacitated. If she is not, then has the right to make her own decisions. Another Act that could apply is the Community Care Act 2003. This Act states that if a person is to be discharged from the hospital, a responsible authority must make an assessment of the hospitalization persons long-term needs, “with a view to identifying any community care services that need to ber made available in order for it to be safe to discharge him and after consulting the responsible NHS body, decide which of those services the authority will make available for the patient” (Community Care Act 2003 (4)(1)). In other words, when a patient is being discharged from a hospital, somebody must decide what services this person will need in the outside world. It must be assumed that Mrs. Lambat was in the hospital at some point, as she has had a severe enough stroke that it has left her severely disabled. It was unclear if this was done, but it seems unlikely it was. Mrs. Lambat was in the hospital with a stroke, and she returned to a home where she was alone and her husband just died. She was left severely disabled from her stroke, needing help dressing, bathing and preparing meals, yet she did not receive services under the CCA 2003. She was clearly in need of social services upon being discharged from the hospital, yet did not seem to receive any. It seems that somebody did not do their job. Most likely what happened is that the responsible authority assessed that Mrs. Lambat has two daughters, decided that it was up to the daughters to care for Mrs. Lambat and called it a day. From a feminist perspective, if this is the thinking of the responsible authority, this is insulting and dangerous. One cannot assume that a daughter has the time to care for her aging mother, as many women not only work outside the home, but have families of their own to care for. Again, it is not clear from the facts why the edicts of this particular Act was not carried out, but they clearly were not, so this is a statute that can be used to get Mrs. Lambat some help. Another Act that is relevant is the Chronically Sick and Disabled Persons Act 1970 (CSDP 1970) and its companion, the Disabled Persons Act 1986. The CSDP 1970 provides that if there is a disabled person who needs services, such as “the provision of practical assistance for that person in his home...the provision for that person of facility for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements...the provision of meals for that person in his home or elsewhere,” then it is the duty of the proper authority to make these arrangements (Chronically Sick and Disabled Persons Act 1970). Further, the Disabled Persons Act 1986 states that an assessment must be made if it is requested by the disabled person or by the caregivers (Disabled Persons Act 1986). Also implicated is the “Fair Access to Care Services,” which is a policy put forth by the Department of Health that gives guidance to local authorities on how to determine what adults are eligible for adult social care. There are four tiers of need, which are known as the four bands of risk – critical, substantial, moderate and low. The risk is critical when a life is threatened; significant health problems have developed or will develop; and “there is, or will be, an inability to carry out vital personal care or domestic routines...vital social support systems and relationships cannot or will not be sustained...vital family and other social roles and responsibilities cannot or will be undertaken” (Fair Access to Care Services). Substantial is when there are factors such as abuse or neglect may occur; personal care or domestic routines cannot be carried out; work, education or learning cannot be sustained and family and social roles cannot be undertaken. In other words, substantial is comprised of a number of factors in the critical realm, but what sets the critical band apart from substantial is the presence of significant health problems (Fair Access to Care Services). Moderate consists of the factors that deal with the ability to personally care for oneself; that work, education and learning is not sustained; and that social and family relationships cannot be sustained. Low consists of these factors, except that, when dealing with the social and family relationships, only one or two relationships are affected (Fair Access to Care Services). In this case, Mrs. Lambat would be considered to be critical. She has a significant health problem, neglect will occur if her daughters cannot care for her, she cannot carry out personal care or domestic routines, and her family roles cannot be undertaken. What makes her critical, as opposed to substantial, moderate or low is because of her significant health problem. Therefore, under the auspices of these two Acts, and the Fair Access to Care Services policy, the daughters or Mrs. Lambat herself can ask for services that are necessary. In the case of Mrs. Lambat, the necessary services would be practical assistance, such as bathing and dressing; meal provisions; and transportation to services that can be arranged by the authority. Most likely these services will include rehabilitation services, and maybe some mental health services. After all, this is a woman who just lost her husband and her independence. Depression might be a real issue, although it does not state as much in the facts. Another Act that has virtually identical provisions from the Acts mentioned above is the National Health Service and Community Care Act 1995. Like the other Acts mentioned just above, the NHSCCA 1990 provides that if a local authority decides that an individual needs services, then he shall carry out an assessment for the person's need for services and then decide whether the person's needs are such that these services should be provided (National Health Service and Community Care Act 1995). Moreover, the caregivers themselves, in this case, the daughters, have the right to request of the local authority whether they, the caregivers, have the ability to provide and continue care for the disabled person, Mrs. Lambat, or whether additional services are needed (Carers and Disabled Children Act 2000). Since they are providing regular and substantial care to Mrs. Lambat, they would be eligible to ask for assistance under this Act. If they request an assessment, then the local authority has a duty to respond. In making this assessment, the practitioner should assess if the caring role is sustainable and what the risk is that the caring role may become unsustainable. The factors that should be looked at are autonomy, which assesses how free is the carer to choose the types of tasks that are performed and how much time is given to the carer's role; health and safety, which looks at how much the carer's health is in jeopardy by the role; managing daily routines, which means how much the carers can look after their own daily affairs and routines while providing care; and involvement, which looks at how much the carers are free to pursue employment, relationships, interests and other commitments while providing the care (Fair Access to Care Services). If the majority of these factors are present, then the risk would be critical or substantial, and the local authority has a duty to seriously consider whether the carers get services. In this case, a number of factors indicate that the carers are at critical or substantial risk. They both have jobs, and the facts indicate that these jobs have been put on hold while they care for their mother, as it says that they must soon return to work and live at their home. This would imply that they are neglecting their domestic routines while they stay with their mother, as they are not at their own home, and that staying with their mother impacts their freedom to maintain relationships, employment and other commitments. The daughters also do not seem to have much autonomy in the process, as they have to do what their mother requires them to do, and they do not get a choice in the matter. Also, they do not have the choice on how much time they spend with their mother, for the mother needs them around the clock. As for risk to the daughter's health, there is no doubt a lot of stress on them – they have put their job and home life on hold while they care for their mother, and this will put a great deal of stress on them. They might lose their job because of this. The facts do not indicate whether the daughters have a family of their own, but, if they do, then they are neglecting their own family, and this will also cause a great deal of stress. At any rate, having to provide around the clock care right after losing their father would be stressful to anybody. Therefore, the daughters are at risk for any number of ailments that accompany stressful situations. Because the daughters' risk is critical, they should be provided services under the Carers and Disabled Children Act 2000. Another possibility would be to apply for a grant from the Community Care Act 1996. Under this Act, the caregivers and Mrs. Lambat can apply for a grant that will be supplied instead of services. They would thus be able to have direct payment for services. This would enable for the daughters to obtain care that is of Mrs. Lambat's choice, instead of just be supplied whomever the responsible agency wants to send over (Community Care Act 1996). Conclusion The daughters have quite a few options available. They need to avail themselves of all these provisions from all of these different statutes so that Mrs. Lambat can be privy to services that are deemed necessary. The local authority has a duty to make an assessment of what services are necessary for both the daughters as caregivers and for Mrs. Lambat, and the social worker has the duty to make sure that these services are carried out and to oversee the process, as well as facilitate the process after assessing what needs to be done and what services are necessary. In addition to the practical services – bathing, dressing, cooking, transportation, etc. - there should also be some mental health screening. As stated before, Mrs. Lambat is a prime candidate for depression and possibly suicide. Multiple studies have shown that the elderly are at risk for suicide when there are physical ailments involved (Cattell & Jolley, 1995, p. 454). Therefore, there should be some pre-emptory screening of Mrs. Lambat to make sure that her mental health is sound and that she is not at risk for taking her own life. Sources Used Carers and Disabled Children Act. Available at: http://www.legislation. gov.uk/ukpga/2000/16/section/1 Cattell, H. & Jolley, D. (1995). “One Hundred cases of Suicide in Elderly People”. British Journal of Psychiatry, 166, 451-457. Chronically Sick and Disabled Persons Act 1970. Available at: http://www.legislation.gov.uk/ukpga/1970/44/contents Community Care Act 1996. Available at: http://www.legislation. gov.uk/ukpga/1996/30/contents Community Care Act 2003. http://www.legislation.gov.uk/ukpga/2003/5/contents Disabled Persons Act 1986. http://www.legislation.gov. uk/ukpga/1986/33/contents Fair Access to Care Services. Available at:www.carersni.org/Policyandpractice/ Policybriefings/.../fairaccesstocare.pdf Mental Capacity Act 2005. Available at: http://www.legislation.gov. uk/ukpga/2005/9/contents National Assistance Act 1948. http://www.legislation.gov.uk/ukpga/Geo6/11- 12/29/contents National Health Service and Community Care Act 1990. Available at: http:// www.legislation.gov.uk/ukpga/1990/19/contents Read More