Clinicians are less likely to be familiar with the provisions of the Care Act compared with the MHA or MCA. While the Act is primarily the domain of social workers and local authorities, its effects are so widespread that a general overview of it is helpful in planning care and providing safeguards for people with dementia. The importance to clinicians arises because so much hinges on the assessment of the person’s needs and that the assessment is carried out in accordance with the Care Act. In a typical case in the Court of Protection, the key documents before the court will be determined by the Care Act assessment. These relate to what the person needs and whether they have the capacity to accept or decline the services required. We discuss the main provisions of the Care Act, which places a series of duties and responsibilities on local authorities concerning care and support for adults, as well as safeguarding in the Act. We then discuss the role of Continuing Healthcare, which is legally underpinned by the NHS Act 2006 and the Care Act, with the overlapping legal schemes essentially working in parallel.

The effects of dementia can make older people particularly susceptible to abuse and exploitation. Not only are they likely to be less able to articulate their feelings and experiences, but they may also be unable to remember or understand what has happened to them. People with dementia may also be less likely to seek help, advocate for themselves or have the mental or physical capacity to remove themselves from potentially abusive situations. The relatively high psychological and physical demands placed on family members who care for relatives with dementia may be a contributing factor. We will therefore discuss the law in relation to safeguarding, provided by the Care Act 2014. We will then consider how the three relevant acts, the Care Act, the Mental Capacity Act and the Mental Health Act, may be deployed in relation to safeguarding situations. Finally, we will discuss safeguards relating to lasting powers of attorney, and what to do if one has concerns about attorneys and deputies.

Most older people do not need any special legal support or protection. They are formed of diverse groups and clearly not all are vulnerable to abuses of one form or another. However, some older people are evidently more at risk than others because of ill-health, disability or dementia, or because of their dependency. They may require protection from physical or mental abuse and misuse of their money or property, and at some stage they may need help with making decisions. They may also require legal protection in respect of the provision of treatment or care, especially if the care arrangements involve them being deprived of their liberty.

Older people, especially those with dementia, may require support from diverse agencies, such as housing and social services, and are the main users of the NHS. Discrimination, victimisation or neglect of older people within the health and social care system raise important issues under human rights law, along with other domestic law or international law obligations. The Acts that are outlined in this chapter are aimed at protecting the basic human rights of people at risk, who share with all of us the right to live our lives as we choose.

This chapter examines how the English Care Act deals with care, support, paid work and disability, particularly how it addresses the tension between supporting women’s unpaid care and their paid work participation and the tension between supporting carers’ claims and supporting disability rights claims. In light of its apparent support for multiple activities and multiple constituencies, a purpose of this second case study analysis was to explore opportunities to build on elements of the policy that align, or at least partly align, with the rights-based approach proposed in this book. The analysis in this chapter indicates that the policy has positive features but is far from a panacea. It applies only to adults, and only a small subset of care and support users and carers with the greatest level of need can access financial support. While the reforms purported to enhance individuals’ self-determination and choice in a manner consistent with disability rights claims, they were also consistent with neoliberal goals of shifting responsibility from the state onto individuals and the market. In the wider context of austerity-related reductions in local authorities’ resources, the policy can make only a modest contribution to the realization of care and support rights.

The English Care Act recognizes the possibility that carers may be both unpaid carers and paid workers. It also recognizes both care and support users and carers as potential rights-holders on the basis of their needs and/or responsibilities and partly contemplates that people may be in both roles at the same time. While its gaps and limitations mean many people cannot access rights-based support, these policy features do offer a scaffolding for developing a policy that aligns with the six principles proposed in this book. This chapter sketches the reforms that would be necessary to overcome the limitations of the policy in terms of its inadequate support for unpaid care and paid work, lack of recognition of the gender division of labor and inadequate responses to the claims of carers and people with disabilities. These include removing the ‘hard’ eligibility threshold and introducing greater flexibility and user control in assessment and eligibility determinations; ensuring that budgets are sufficient to ensure decent pay and conditions for paid workers; and revising the definition of ‘well-being’ to ensure that the policy captures human rights considerations and all of the matters care and support users and carers consider to be important.

This chapter introduces the second case study analysis, which explores the manifestation of the two care policy tensions, and the potential application of the care and support rights principles, in a different context. It is focused on England’s Care Act, which introduced fundamental changes to the form and purpose of care and support policy, also referred to as ‘adult social care’. The Care Act makes provision for some people with disabilities – and other adults with care and support needs – as well as some carers to access personal budgets for the purchase of services to meet their needs and promote their ‘well-being’. It contemplates recipients’ participation in a range of activities (including unpaid care and paid work) and applies to multiple constituencies and thus appears – at least on the surface – to be more closely aligned with the care and support rights principles than the Australian policy discussed in earlier chapters. This chapter outlines the history and key features of care and support policy in England and sets out the eligibility criteria that care and support users and carers must meet in order to qualify for support.