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Wednesday, 9 November 2011

Book Review: Community Care and the Law

Authors: Luke Clements and Pauline Thompson

Contributors: Carolyn Goodall; Jean Gould; Edward Mitchell; Camilla Parker; Alison Pickup.

Price: £60 (£57 on Amazon, and £39 for the Kindle edition)

Publisher: Legal Action Group, their page on the book is here
Sample chapter available here.

Tortuously complex, baffling, labyrinthine, poorly drafted, confusing and obscure – so judges have  described the state of community care law.  It would be unthinkable to try to navigate this field without a guide, and one would want a guide with compendious knowledge and considerable experience of the field.  In their book Community Care and the Law, Clements and Thompson have achieved the near impossible, condensing the giddy multiplicity of statutes, regulations, directions, circulars and guidance (not to mention case law) into a clear and comprehensive text on the field.

The 2007 edition was one of only three legal texts occupying space on my desk, and I consult it regularly (fortunately it had a very sturdy spine).  But the pace of change in community care law is fast, and the fourth edition was becoming quite out of date – particularly in relation to major developments like personalisation, the revised eligibility criteria guidance and major statutes like the Equality Act 2010 and Health and Social Care Act 2008.  Now in its fifth edition, the authors have updated it to take account of all these changes and more, but retained the same structure so previous users will still be able to navigate it with ease (I’ve given the new chapter headings at the bottom of this post).  Looking to the future, it also includes information on the Law Commission reform proposals for their proposed Adult Social Care statute.  Weighing in at almost 4kg, Clements and Thompson hasn’t got any lighter... but a kindle edition is also available.

Luke Clements is a solicitor and law professor and Pauline Thompson OBE has considerable experience in third sector policy advice in care.  The books’ other contributors are all well known and well respected legal practitioners, trainers and commentators.  The authors’ backgrounds in practice and teaching really show through in the practical orientation of the book, and the clear way the material is presented.  Unlike many legal textbooks, Community Care and the Law is geared towards use.  It is sensitive to the actual issues encountered by those working in community care, and those entitled to community care services.  Rather than simply detailing what the law says, Clements and Thompson offer commentary even on those issues that frequently arise where the law is silent or ambiguous, but we wish it might say more.  ‘Out of county’ residential placements, for example, or obtaining a written record of an assessment.  It also takes into account the impact that policies with no legal basis have on the delivery of services, personalisation being a key example.  And unlike many academically oriented textbooks it offers guidance on what the most appropriate means of challenge may be for a given difficulty.

As in the previous edition, there are dedicated chapters looking at policy and law for particular kinds of services, including: services for people with learning disabilities, older people, people with mental health problems, asylum seekers, drug and alcohol users, HIV/AIDS services, children in need and adult safeguarding.  It also contains helpful diagrams that give an overview of complex areas like the community care assessment, charging for services, complaints procedures, and ordinary residence.  The book contains template letters that will come in handy for service users or those advocating on their behalf (for requesting a community care assessment, to access information and a formal complaint letter).  The careful blend of the general and the particular, the overview and specific detail, is what makes this book so handy not only for legal practitioners, but also potentially for lay advocates and community care professionals.  Certainly I would be more reassured by seeing this text on a community care team’s shelves than many of the skimpy guides on law for social workers that I have looked through.

I’ve tried to think about what areas of community care law aren’t covered by the book, and the only areas I can think of are the Mental Health Act and the deprivation of liberty safeguards, which are discussed briefly but in no significant detail.  This is understandable: given their complexity the MHA and DoLS certainly justify purchasing a separate book.  Despite this, the book is attentive to those areas where mental health and community care law intersect, discussing for instance who the DoLS supervisory body is where ordinary residence is in dispute.

The book is published by the Legal Action Group, a charity whose mission statement ‘is to promote equal access to justice for all members of society who are socially, economically or otherwise disadvantaged’.  In some respects this activist zeal comes across in the text, but that is no bad thing.  Legal analysis and comment on judgments like McDonald v Kensington and Chelsea [2011] will reflect the frustrations of many working in the field.  The book does a great service in promoting equal access to justice in a field where pinning down a public authority’s obligations often results in a lengthy paper chase.  In my more cynical moments I wonder whether the legislation and guidance is deliberately poorly drafted so nobody understands what rights to care they actually have.  As Clements himself has written elsewhere:
‘If the law is obscure to our cleverest legal minds – then how does it fare with the poorly informed, the unassertive, the fearful, the exhausted, the distracted and those with intellectual impairments?’
This book goes some way towards rectifying that situation by providing clear, practical and comprehensive advice for those who work in the field.

Chapter headings
1. The statutory scheme underpinning social care and the NHS services
2. Strategic planning, public sector equality duties and information to the public
3. Community care assessments (free copy available on LAG website)
4. The care planning process and the delivery of services
5. Assessment and planning for discharge from hospital
6. Ordinary residence
7. Care home accommodation
8. Local authority charges for accommodation
9. Domiciliary and community based services
10. Charges for non-accommodation services
11. Intermediate care and re-ablement
12. Direct payments and the Independent Living Fund
13. NHS responsibilities for services
14. NHS continuing health care responsibilities
15. Housing and community care
16. Carers
17. Mental capacity
18. Learning disability and autism: policy and services
19. Older people: policy and services
20. Mental health: policy and services
21. Asylum seekers and other overseas nationals
22. Drug, alcohol and HIV/AIDS services
23. Children Act 1989 duties to children in need
24. Safeguarding adults from abuse
25. Access to personal information, data protection and confidentiality
26. Remedies

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