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Vol 21 No 9 Sept/Oct 2016

Book of the Month

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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Dementia and the Law

ISBN13: 9781846617560
Published: January 2014
Publisher: Jordan Publishing Ltd
Country of Publication: UK
Format: Paperback
Price: £55.00

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This book addresses the full 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 Cat 2005 (MCA); (ii) continuing healthcare assessments; and (iii) assessment for local authority services.

The second section of the book is focussed 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 is concerned with the 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.

Medical Law, Mental Health Law
Section 1: Diagnosis and Assessment

Access and rights to information

Data Protection Act 1998 and medical records vs best interests
Who can access information? – (see Lasting and Enduring Power of Attorneys)
Reporting risks

Hospitalisation and sectioning

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

Rights to assessments

Regarding capacity
Regarding continuing healthcare
Regarding local authority care services

Section 2: Care

Welfare and best interests

Deprivation of liberty
How to assess person’s best interests
Powers of Attorney regarding personal welfare
Deputies and the Court of Protection
Safety measures established under the Mental Capacity Act
Code of Practice under the Mental Capacity Act - how does the Act work on a day-to-day basis

Medical care

Rights to receive appropriate treatment
Rights to refuse treatment or medication
Rights to stop treatment and DNR

Social care

Who provides – NHS or local authorities?
After care service at home
Residential care
When person no longer eligible for after care support under section 117

Carers’ rights and duties

Assessment duties and rights - under the Carers (Recognition and Services) Act 1995
Rights to support
Duties and responsibilities
Managing risk
What carers cannot do

Section 3: Property and Finance

Lasting and Enduring Powers of Attorney

The legal process
Powers and obligations
Financial deputies

Property and Affairs in the Court of Protection

Funding for care services

Direct payments
Individual budgets
What to do when after care service financial support is stopped (see also under remedies)

Section 4: Remedies

Challenging decisions and making complaints

Informal processes available
Challenging decisions
Complaining to the Ombudsman

Resolving disputes - Mediation and Appropriate Dispute Resolution

Court of Protection

Judicial Review

Other remedies

Making negligence claims regarding care
Reporting human right breaches such as abuse, over prescription of drugs
Rights to services and combating age discrimination against those with Young Onset Dementia

Statutory Materials

Forms and Precedents