THE LEGAL FRAMEWORK IN HEALTH AND SOCIAL CARE

The legal framework provides the mandatory foundation for practice. It varies significantly between jurisdictions (e.g., UK, USA, Australia, Canada), but core principles often overlap. This section will focus on common themes, often using the UK as a primary example due to its integrated health and social care legislation, while acknowledging the need for jurisdiction-specific knowledge.

1.1 Sources of Law

·         Statute Law (Legislation/Acts of Parliament/Congress): Primary laws passed by the legislature. These are the most significant source of law governing health and social care. Examples (UK Context):

o    The Care Act 2014: Revolutionised adult social care in England, focusing on well-being, prevention, assessment, eligibility, care planning, safeguarding, and market oversight.

o    The Health and Social Care Act 2012 (and subsequent reforms): Restructured the NHS in England, establishing Clinical Commissioning Groups (now Integrated Care Boards), Healthwatch, and reinforcing duties regarding quality.

o    The Mental Capacity Act 2005 (MCA): Provides a legal framework for acting and making decisions on behalf of individuals aged 16+ who lack the mental capacity to make specific decisions for themselves (England and Wales). Includes Deprivation of Liberty Safeguards (DoLS), being reformed into Liberty Protection Safeguards (LPS).

o    The Mental Health Act 1983 (as amended, significantly by the MHA 2007): Governs the compulsory assessment, detention, and treatment of people with ‘mental disorders’ in England and Wales. Subject to ongoing reform.

o    The Human Rights Act 1998: Incorporates the European Convention on Human Rights (ECHR) into domestic UK law, requiring public authorities (including NHS trusts, local authorities, and private providers delivering public functions) to act compatibly with Convention rights (e.g., right to life, prohibition of torture/inhuman treatment, right to liberty, right to private/family life, freedom of expression, prohibition of discrimination).

o    The Equality Act 2010: Consolidates anti-discrimination law, protecting individuals from discrimination based on ‘protected characteristics’ (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, sexual orientation). Imposes duties on public bodies (Public Sector Equality Duty) and prohibits direct/indirect discrimination, harassment, and victimisation.

o    The Children Acts 1989 and 2004: The cornerstone of child protection law in England and Wales, emphasising the child’s welfare as paramount, parental responsibility, and duties of local authorities to safeguard and promote the welfare of children in need.

o    Data Protection Act 2018 / General Data Protection Regulation (GDPR): Governs the processing, storage, and sharing of personal data, crucial for maintaining confidentiality.

o    Health and Safety at Work Act 1974: Places general duties on employers to ensure the health, safety, and welfare of employees and others affected by their activities (including service users).

·         Common Law (Case Law/Judge-Made Law): Decisions made by senior courts (like the Supreme Court or Court of Appeal) interpret statutes or establish legal principles in areas not covered by legislation. These precedents are binding on lower courts. Key areas developed through common law include:

o    Negligence: The principles establishing when a duty of care is owed, breached, and causes harm. Landmark cases like Donoghue v Stevenson (neighbour principle) and Bolam v Friern Hospital Management Committee (professional standard of care) are foundational.

o    Consent: Principles around valid consent to treatment (e.g., Gillick v West Norfolk and Wisbech AHA regarding competence of minors).

o    Confidentiality: The duty owed by professionals to keep patient information private, and the exceptions (e.g., public interest disclosures).

·         Subordinate/Delegated Legislation: Regulations, orders, and rules made by government ministers or other bodies under powers granted by a primary Act of Parliament. These provide detailed rules to implement the broader provisions of statutes (e.g., regulations detailing assessment procedures under the Care Act).

·         European Union Law (Historically significant for the UK, still relevant for EU members): Directives and regulations from the EU impacted areas like data protection (GDPR originated here), professional qualifications recognition, and workers’ rights. Post-Brexit, much EU law was retained initially, but divergence is possible. For EU countries, it remains a primary source.

·         International Law: Conventions (like the UN Convention on the Rights of Persons with Disabilities – UNCRPD) influence domestic law and policy, setting international standards.