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Bloomsburry Family law

Vulnerable Clients

Direct payments: friend or foe?

Following the recent White Paper, Modernising Social Services, the Government has announced its intention to make Direct Payments available to disabled people over 65 as well as, as at present, to those under that age. While no indication is given as to timescale, there is every indication that the change will be made fairly soon as it will not require primary legislation. It is therefore timely to consider what Direct Payments are and their implications for older people in the future.

Care, consent and competence

Many legal advisers who have older clients exercise substituted decision making powers, either as attorneys under enduring powers, or as receivers. These powers do not, however, enable decisions about medical or personal care to be made by attorneys or receivers in respect of individuals who lack mental capacity. Where such decisions have to be made - sometimes as a matter of life and death, sometimes as a matter of day to day management - the law is often misunderstood.

Complaints and the Mental Health Act Commission

Any complaints arising out of the exercise for the power to detain, manage and control, and the duty to treat are complaints in respect of which the [Mental Health Act Commission] has jurisdiction. It seems to me that management, control and treatment all form part of the package of compulsion which is the essence of Section 3 detention which it is the duty of the Secretary of State to keep under review under section 120(1) of the [Mental Health] Act. R v Mental Health Act Commission ex p Smith1