Do I lose parental rights if my child is in care?

"Parental Responsibility" is a term introduced by the Children Act 1989 to replace the previous terms of "parental rights and duties" or "powers and duties".

The Children Act defines parental responsibility as:-

"all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to a child and his property."

While a son or daughter is under 18, the law usually allows for parents to take decisions.

The Courts can change this if things have gone badly wrong in the family; and parents can of course be challenged where a decision they propose seems to be against the child's interests.

The law does, however, recognises the right of children to decide some things for themselves when they are ready to take their own decisions; The Children Act and the Education Acts give children who can speak for themselves the chance to be heard.

Parents can normally claim access to records about their child in the same way that they can claim access to their own records. Access may be denied where there are abuse issues.

Do I still have rights if the child or relative is over 18 years?

As far as the law is concerned, parents in England have few if any rights in relation to their adult sons or daughters, unless a legal relationship has been established for particular purposes such as managing financial affairs (Receivership), looking after social security benefits (Appointeeship), or, in a very small number of cases (and seldom for parents), deciding where they live and ensuring professional access to them (Mental Health Act Guardianship). The English law is being looked at, most recently in proposals from the Lord Chancellor's Department, but at the moment parents have no legal rights to decide where an adult son or daughter lives, or what they do; and no power to consent to medical treatment or anything else on their behalf. Scotland has a different system, which is now being upgraded.

Consultation with the parents about plans for the son or daughter is normal good practice. Adults who are competent to make decisions will not want to be treated as children by their parents, and will want to take their own decisions.

Parents have a right to demand that services have a formal risk-taking policy, and to see it.

They have a right to challenge what seem to be decisions made not by the son or daughter, but by staff.

They have a right to complain via a formal complaints procedure if they are being ignored or if things go wrong.

Access by parents to the records of adult sons and daughters who agree to this is not a problem. Right of access to the records of those not able to agree or disagree is uncertain, except in the context of legal proceedings. Parents should ask for this in appropriate cases, since otherwise there is no independent check on those records.

Note: The English Government is consulting on proposals for new arrangements for assessing competency and for alternative decision-taking where a person is not competent to take their own decisions. There is however no immediate prospect of legislation.

Do I have a say where my relative will be placed if I am considering Residential Care?

At the moment parents have no legal rights to decide where an adult son or daughter live, unless a legal relationship has been established which covers where a person will live (this is only seldom the case).

Many carers are expected to make decisions on behalf of adults without mental capacity without a clear idea as to the legal authority for those decisions. The present law does not provide sufficient guidance or safeguards for people in care, nor those who care for them.

If it seems that the person cared for needs to go into residential care, the social work department should carry out an assessment. It is good practice for people who know and care about the individual, including family and advocates, to be involved and consulted when making decisions.

What is a Risk Assessment?

Fin Finding out what could go wrong in a given situation, and putting in place procedures and policies that ensure that things do not go wrong. Through doing a risk assessment people are made aware of risks.

A risk assessment may be defined as an identification of the hazards present in an activity and an estimate of the risk involved.

A hazard is something where there is the potential to cause harm. The risk is the probability that the harm will actually occur.

Under the Management of Health and Safety at Work regulations 1992 a specific requirement is placed on employers to carry out risk assessments in all workplaces.

Risk assessments should cover all areas and activities of the workplace. In an environment which involves the care of people the risk assessment must identify and reduce or eliminate risks which could result in harm or injury to employees, people using services or members of the public.

The risk assessment must include any measures already in place to reduce the risk and any further measures which are required to reduce the risk..

Risk assessments must be recorded and regular reviews must take place taking into account any changes to circumstances.

It is not possible or desirable to remove risk entirely from people's lives as people face hazards in all activities they do such as crossing the road, climbing stairs or playing sports.

Risk assessments must enable people who use services or their advocates to manage and take risks, whilst ensuring that hazards are controlled and that people are not exposed to unacceptable risks.

Who carries out the Risk Assessment?

The risk assessment is carried out by the care provider (the employer). Although there is not a legal right to participate in the risk assessment process it is good practice for the person receiving care, their family and people who know them to be involved.

Am I entitled to see the Risk Assessment?

If you have been involved in the Risk Assessment process you should get to see the final Risk Assessment. If you have not been involved it is still good practice for you to see the Risk Assessment and to be able to comment on it.

What is the difference between a Care Plan and a Risk Assessment?

A care plan is a plan that is put together after an assessment. This reflects your needs and requirements and states who will take any action identified.

A risk assessment is finding out what could go wrong in a given situation, and putting in place procedures and policies that ensure that things do not go wrong. Through doing a risk assessment people are made aware of risks.

Risk assessment is an integral part of the care planning that looks to take into account an individuals skills abilities and needs. It ensures that the individual is enabled to manage and take risks, whilst ensuring that hazards are controlled and that people are not exposed to unacceptable risks.

Am I legally entitled to view my relatives Care/Medical records?

Access by parents to the records of adult sons and daughters who agree to this is not a problem, in principle. There is provision to deny access to you where it is considered to be in your best interests or where there may be a breach of confidentiality.

Right of access to the records of those not able to agree or disagree is uncertain, except in the context of legal proceedings. Parents should ask for this in appropriate cases, since otherwise there is no independent check on those records.

Should the care provider keep an up to date record of my relatives possessions?

Yes.

An up to date inventory of your relatives possessions should be maintained. This should show when a new possession was added, its value, and description. The record should also identify when and how items have been disposed of . The record entries should be signed ideally by two members of staff, and by the person receiving care if they are able to do so. Records should be maintained for possessions held on behalf of an individual as well as for items that they hold for themselves.

If I suspect financial abuse would I be allowed to inspect my relatives financial statements?

Yes, with your relatives consent.

Right of access to the records of those not able to agree or disagree is uncertain, except in the context of legal proceedings. Parents should ask for this in appropriate cases, since otherwise there is no independent check on those records.

If you have concerns and are unable to inspect the records you can pass on your concerns to the Registration and Inspection Unit at your local authority. These regulators welcome concerns and complaints. They will swiftly act on received complaints whether made anonymously or by a named complainant.

Who do I complain to if I have a concern?

Each provider of services (NHS, private, social services or voluntary) must have a formal complaints procedure which is a public document. Ask to see this.

It should be clear and understandable and made available to people receiving services and relatives , advocates etc . Where complaint becomes necessary, the complaints procedure should be open to all those who might want to use it.

Where there is a concern the usual way to try to resolve things is to approach the local management. Where this does not result in a satisfactory response the concerns are usually taken to someone at a higher managerial level within the organisation. The complaints procedure should explain who these people are, how to contact them, and how they will go about addressing the concerns that have been raised.

If the internal complaints procedure of the organisation is unable to address your concerns to your satisfaction there should be an independent external way of taking the complaint forward. This should be identified in the organisations complaints procedure.

For local authorities a Complaints Officer is responsible for carrying out the complaints procedure. You are entitled to a review of your complaint by a panel including a member who is independent of the local authority.

Complaining to the registration and inspection unit

Each local authority has a Registration and inspection unit with responsibility for services and providers that are registered.

If you approach the Registration and Inspection Unit with a complaint or concern an inspector will discuss the issues with you, advise on the next steps and if appropriate undertake an investigation into your complaint and may make recommendations or requirements of the provider.

Who has to be registered and inspected?

The following services and providers are registered and inspected by the Registration and Inspection Unit:

Residential Care Homes, Independent Sector

Residential Care Homes, Voluntary Sector

Residential Accommodation for people with mental health problems

Residential Accommodation for people with physical disabilities

Residential Accommodation for people with learning difficulties

Full Day Care Facilities for the Under 8's

Sessional Day Care Facilities for the Under 8's

Out of School Clubs

Holiday play schemes

Children's Resource Centres

Children's Homes

Home Support Services Voluntary Registration

Voluntary Schemes and Non Statutory Agencies

Where do I go if I am not satisfied with the response?

You can

Complain to the Secretary of State. If you are unable to resolve your complaint by using the authority 's complaint procedure you may argue that the authority is in default of its duty.

Complain to the Ombudsmen. If you fail to resolve your concerns within the complaint structure you may be able to complain to the Ombudsman.

Legal Action through the Courts. This is your last resort if all other remedies fail. Legal action may be expensive but if the action is taken on behalf of the disabled person legal aid may be available.

The Ombudsmen

The ombudsmen could be seen as being the WATCHDOG of services such as Social Services and Health Services. If they decide to investigate your complaint, they will do so completely independent. They publish several reports of investigations carried within Local Authorities each year. The report names individuals who have failed in certain aspects of the jobs. This service is completely free.

The ombudsmen service is there to provide a possible source of redress where private individuals have suffered through the poor administration of a public body.

The ombudsmen must be satisfied that all others avenues of compliant and investigation have been explored and exhausted before he/she looks at any case. The ombudsmen does not look at the way in which a public body has failed to implement the law, but looks at the way a public body has failed to implement the law in a competent way.

The ombudsmen procedure is very easy to follow. All you really have to do is write a letter giving your details, and the ombudsmen will visit you.

Advice line 0845 602 1983 Use this number first and get advice.

Judicial review

Judicial review is where you ask a court to decide whether a local authority is acting within the law. In practice this will often mean asking the court to decide whether a decision taken by the local authority is fair and reasonable. It is vital that if you are considering judicial review that you get good legal advice.

If my complaint is subject to an Independent Inquiry who employs the 'Independent Investigator ?

Usually the Local authority

Do I have a say in the choice of investigator.?

No.

We feel that truly independent, objective, and valued mediation and conciliation services should be available to help resolve conflicts at the earliest stages. Early interventions can lead to positive resolutions.

Will I be allowed a copy of the Investigators Report?

Yes

Is there a course for appeal after the Investigation is concluded?

Once you have gone through the complaints procedure laid down by Social service or the Health Authority, if you are still not happy, your next port of call will be the ombudsmen.

The ombudsmen could be seen as being the WATCHDOG of services such as Social Services and Health Services. If they decide to investigate your complaint, they will do so completely independent. They publish several reports of investigations carried within Local Authorities each year. The report names individuals who have failed in certain aspects of the jobs. This service is completely free.

The ombudsmen service is there to provide a possible source of redress where private individuals have suffered through the poor administration of a public body.

The ombudsmen must be satisfied that all others avenues of compliant and investigation have been explored and exhausted before he/she looks at any case. The ombudsmen does not look at the way in which a public body has failed to implement the law, but looks at the way a public body has failed to implement the law in a competent way.

The ombudsmen procedure is very easy to follow. All you really have to do is write a letter giving your details, and the ombudsmen will visit you.

Advice line 0845 602 1983 Use this number first and get advice.

What is a review panel?

After a formal complaint has been registered and addressed by a local authority, trust or health authority, then if the complainant is not satisfied they can request to go to the review stage where 3 people (one of whom must be independent of the authority) will hear their case.

The review panel will examine the complaint and must report in writing to the authority and complainant . The authority must give the complainant its decision in writing stating the reasons for the decision and what action, if any, is to be taken. Advocates should be able to represent the interests of users.

Legislation does not oblige local authorities to follow the recommendations of complaint procedure review panels, which come together at the end of a complaint. As far as the courts go, they may or may not make recommendations to comply with the recommendations of a review panel.

As a care worker concerned about unsafe procedures or I suspect a colleague of abuse who do I speak to?

You can contact the Health and Safety Executive, the Local authority registration and Inspection Unit, or contact your trade union if you are a member.

As a care worker with a concern regarding abuse would I be able to break the confidentiality clause?

Information concerning an individual must be treated with respect at all times and should be treated in a confidential way.

However in certain circumstances such as suspected abuse there is a duty to pass on information in order to protect the individual from harm. This applies even for information given in confidence.

If you need to pass on such information in the first instance approach your manager.

What is the Health and Safety Executive?

The Health and Safety Executive (HSE) is a statutory body responsible under section 18 of the Health and Safety at Work Act (HSWA) 1974 for the enforcement of health and safety legislation with a view to securing the health, safety and welfare of workers and protecting others, principally the public.

Enforcement of the HSWA 1974 and related legislation is shared with local authorities who cover certain types of work activities.

They develop new health and safety laws and standards, inspect workplaces, investigate accidents and cases of ill health, and enforce good standards, usually by advising people how to comply with the law, but sometimes by ordering them to make improvements and, if necessary, by prosecuting them.

Why would the HSE be involved in an accident or death in care?

The HSE can investigate and prosecute for breaches of the Health and Safety legislation where there has been an accident or death in care. The HSE cannot investigate or prosecute for general criminal offences such as manslaughter.

In the case of a work related death the HSE liase with the police and the Crown Prosecution Service (CPS). They each perform different roles.

The police investigate crimes and recommend prosecution to the CPS. The police will also have an interest in establishing the circumstances surrounding a work-related death in order to assist the coroner's inquest.

The Crown Prosecution Service will look at the evidence and decide if there is a realistic prospect of conviction and whether a prosecution is in the public interest.

In a private care home who has ultimate responsibility/liability for my relative, the home or the local authority?

A local authority or health authority may purchase care from a private care provider for an individual. The authority is ultimately responsible for ensuring and monitoring the standard of care that they are purchasing from the private provider.