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Key Legislation

In the following guidelines “regular and substantial” refers to at least 35 hours per week.

Mental Health Bill

  • Provides carers with the right to be consulted during an assessment.
  • Does not provide carers with the right to be consulted by mental health tribunal at the time of discharge
  • Allows change of “nearest relative” provision in favour of a “nominated person”.

    • “Nearest relative” refers to the person who comes highest:
      • Husband or wife
      • Eldest:
        • Child
        • parent
        • brother or sister
        • grandparent
        • uncle or aunt
        • nephew or niece
    • There are however some exceptions to this list.

The Mental Health Act (1983 – sections 26 – 30)

  • A nearest relative or nominated person has the right to:
    • Request that an assessment be carried out by an approved social worker (ASW) if they feel that the person they are caring for requires this and they are unwilling to request care themselves.
    • Apply for compulsory admission which requires a written supporting statement from two doctors.  This can be reduced to one doctor in urgent circumstances.
    • Information and consultation before admission to hospital.  If the person being cared for is to be admitted under a section 2 (for an assessment), the carer must be informed of the action and their rights in regards to their powers of discharge.  If the person being cared for is admitted under a section 3 (for treatment), the carer must be informed and agreement sought.  If the carer does not agree to this action being taken, the person they care for cannot be detained.  The approved social worker may then however, apply to the county courts to request that you be replaced as the nearest relative.
    • Information and consultation after hospital admission and to be given certain information regarding:
      • Detention
      • Making an application to a mental health tribunal
      • Hospital discharge
      • Compulsory treatment
      • Mental Health Act Commission

The detained person can object to you being given this information

    • Review detention if this is being reviewed by the hospital or a mental health review tribunal; in which carers have the right to state their views
    • Obtain discharge as long as the person is not subject to special restrictions or a hospital order.  This has to be done within three days after receipt of the carers letter
    • Apply to the mental health review tribunal
    • Be told when the person is to be discharged, unless the patient objects.

National Strategy for Carers

  • Information – what carers can expect from services
  • Support – carer involvement in planning and provision of services
  • Care – to have their own needs met

Human Rights Act

  • On behalf of a person being cared for, carers have the right to invoke Article 3 (the right not to be subjected to inhuman or degrading treatment or punishment) and Article 4 (the right to liberty and security of the person – although this can be overridden for persons of “unsound mind”)

Carers Services and Recognition Act (1995)

  • Gives carers the power to request local authorities to carry out an assessment of their ability to provide care
  • This applies to those who provide, or intend to provide a regular and substantial amount of care.

Carers and Disabled Children’s Act (2000)

  • Carer can ask for and receive an assessment of their own needs if the person they care for has refused an assessment or services.
  • The local authority has the power, not a duty, to provide some services direct to carers.

Carers (Equal Opportunities) Act (2004)

  • The local authority has a duty to:
  • Inform carers of their rights to an assessment
  • Consider the wishes of carers concerning:
    • Employment;
    • Training;
    • Education
    • Leisure activities

National Service Framework for Mental Health (2000)

  • Those who provide ‘regular and substantial’ care should:

    • Have an assessment of their own caring, physical and mental health needs.  This should be conducted on an annual basis
    • Have their own written care plan which is given to them and implemented in discussion with them.

Carers Allowance

  • Carer’s Allowance is a benefit for people over 16 who spend a regular and substantial amount of time caring for a disabled person. It is non-means tested or reliant on National Insurance record. There is however, an earnings limit if they are in paid employment
  • The basic eligibility criteria for claiming carers allowance:
    • aged 16 or over at date of claim…and
    • if in work, must not earn more than £90…and
    • not in full time education…and
    • care for a disabled person for at least 35 hours a week…and
    • the disabled person must receive Attendance Allowance or the high or middle rates of DLA Care Component…and
    • must not be ‘subject to immigration control’…and
    • must normally live in Britain and have been here for 26 out of previous 52 weeks
  • In some circumstances a carer claiming Carer’s Allowance may reduce the means tested benefit of the person they are caring for.  It is therefore recommended to seek advice before claiming carers’ allowance.
  • Carers Allowance Unit: 01253 856123 or visit
  • Carers may also be entitled to reduced council tax and income support.  It is recommended that you seek advice regarding these before applying.




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