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Dementia and the Law

Dementia and the Law

Author: Tony Harrop-Griffiths; Jonathan Cowen; Christine Cooper; Rhys Hadden; Angela Hodes; Victoria Flowers; Steven Fuller
Publisher: LexisNexis U.K.
ISBN: 9781846617560
Published In: January 2014
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents
Author

Details

This book addresses a wide range of legal issues that arise in respect of people suffering from dementia, setting out the law in a clear and accessible form. Starting from the initial stages of obtaining information, the book follows a logical sequence through: the powers under the Mental Health Act 1983 (MHA); rights to assessment, treatment and care services; the Mental Capacity Act 2005; financial deputies and attorneys; and care funding, before concluding with a detailed section on the remedies which may be deployed to resolve disputes in these areas.

The first section of the book deals with legal issues that arise at the time of diagnosis and in the period when the dementia begins to have a significant impact on the person’s life. Access to information about a person with dementia is a particularly complex problem and one that the Alzheimer’s Society is regularly asked about. The rights and duties of disclosure of personal data and medical information are set out in this context. The powers to detain a person with dementia under the MHA are explained as is the role given to the nearest relative. This section concludes with a chapter on the three different types of assessment that will commonly be applicable to a person with dementia. These are (i) capacity assessments under the Mental Capacity Act 2005 (MCA); (ii) continuing healthcare assessments; and (iii) assessment for local authority services.

The second section of the book focuses on legal issues surrounding the care provided to a person with dementia. The concept of ‘best interests’ is explained at the start of this section along with the legal approach under the MCA to making decisions for the person with dementia (such as when to deprive that person of his or her liberty, for example). The rights to receive a particular medical treatment and to refuse treatment are set out before turning to the legal issues surrounding care services provided by the local authority, this includes both care services in the home and those provided in residential care homes.

The third section of the book considers property and financial issues affecting those with dementia. The legal processes, powers and obligations of attorneys and financial deputies are set out and explained in context along with practical information about the most common problems (such as the sale of property, for example). This section concludes with a chapter covering issues concerning the funding of care. These include aftercare under the MHA, continuing health care, individual budgets and direct payments and self-funding.

The final section of the book concentrates on the remedies available when disputes arise as they are likely to apply to a person suffering from dementia. The first chapter in this section deals with the informal processes available, up to and including a complaint to the relevant Ombudsman. Alternative methods of dispute resolution can be particular important where there is a need for on-going care services and these are explained before turning to the substantive remedies available through proceedings in the Court of Protection and applications for judicial review.

This book covers both England and Wales to include additional reference wherever the law differs in Wales.

Section 1: Diagnosis and Assessment

Access and rights to personal information

Access to personal information
Requesting personal information on behalf of others
Duty to report information
Reporting risks

Hospitalisation and sectioning

Powers under the Mental Health 1983 Act and Mental Capacity Act 2005
Detention for assessment in hospital under the Mental Health Act 1983
Detention for treatment under the Mental Health Act 1983
Section 117 - After-care
Challenging a section
What happens when a section expires
Guardianship

Rights to assessments

Assessment of Mental Capacity
When should capacity be assessed
Who should assess capacity?
Reasonable belief of lack of capacity
When will a formal assessment of capacity be necessary?
Standardised tests for assessing capacity
Assessment of social needs
Regarding capacity
Regarding continuing healthcare
Regarding local authority care services

Section 2: Care

Welfare and best interests

What are welfare decisions?
Best interests
Deprivation of Liberty
Safety measures established under the MCA
Powers of Attorney regarding personal welfare
Welfare Deputies and the Court of Protection

NHS Care and Treatment

NHS responsibilities - overview
Dementia and the NHS
Continuing healthcare
Joint packages of care
NHS-funded nursing care

Local Authority Care

Service Provision decision
Prioritising need
Care and Support Bill

Carers

The statues
Care and Support Bill

Section 3: Property and Finance

Lasting and Enduring Powers of Attorney

What is a Power of Attorney?
Obligations of an Attorney
Enduring Powers of Attorney
Lasting Powers of Attorney - the legal process

Property and Affairs in the Court of Protection

Jurisdiction
Application to the Court of Protection
Financial deputies
Deputies' obligations
Financial abuse

Funding for care services

Care at Home
Residential care
Proposed Reforms

Section 4: Remedies

Challenging decisions and making complaints

Complaints

Resolving disputes - Mediation and Alternative Dispute Resolution

Alternative Dispute Resolution
Mediation
What characteristics of the process make a mediation succeed?
Other types of ADR

Remedies in the Court of Protection

What can the Court of Protection do?
Will the decisions of the Court of Protection be made public?
Costs

Judicial Review

What is Judicial Review?
Matters that may limit the bringing of judicial review claims
Judicial review: How does the court make its decision
Time limits and standing
Limited scope of judicial review
Challenging decisions of public bodies - grounds for judicial review
The procedure for judicial review
Applications for interim relief
What judges take into account in making their decisions
Costs
Relationship between proceedings in the Court of Protection and judicial review

Other Court Proceedings

Using the inherent jurisdiction of the High Court
Litigation capacity in civil proceedings
Professional negligence claims
Damages for breach of human rights
Discrimination
Reasonable and provisions of auxiliary aids
Contractual disputes
Personal Injury claims
Funding a claim

Statutory Materials

Tony Harrop-Griffiths, Jonathan Cowen, Christine Cooper, Rhys Hadden, Angela Hodes,Victoria Flowers all barristers at Field Court Chambers and Steven Fuller Advisory Lawyer at the Department of Health