LEGAL ASPECTS OF OCCUPATIONAL THERAPY

Transcription

1 LEGAL ASPECTS OF OCCUPATIONAL THERAPY Second Edition BRIDGIT C. DIMOND MA, LLB, DSA, AHSM, Barrister-at-aw, Emeritus Professor of the University of Gamorgan

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3 LEGAL ASPECTS OF OCCUPATIONAL THERAPY Second Edition BRIDGIT C. DIMOND MA, LLB, DSA, AHSM, Barrister-at-aw, Emeritus Professor of the University of Gamorgan

4 # 1997, 2004 by Bridgit Dimond Editoria offices: Backwe Pubishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK Te: +44 (0) Backwe Pubishing Inc., 350 Main Street, Maden, MA , USA Te: Backwe Pubishing Asia Pty Ltd, 550 Swanston Street, Carton, Victoria 3053, Austraia Te: +61 (0) The right of the Author to be identified as the Author of this Work has been asserted in accordance with the Copyright, Designs and Patents Act A rights reserved. No part of this pubication may be reproduced, stored in a retrieva system, or transmitted, in any form or by any means, eectronic, mechanica, photocopying, recording or otherwise, except as permitted by the UK Copyright, Designs and Patents Act 1988, without the prior permission of the pubisher. First pubished 1997 Reprinted 2000, 2002 Second edition 2004 Library of Congress Cataoging-in-Pubication Data Dimond, Bridgit. Lega aspects of occupationa therapy/bridgit C. Dimond. ± 2nd ed. p. ; cm. Incudes bibiographica references and index. ISBN X (pbk. : ak. paper) 1. Occupationa therapy ± Law and egisation ± Great Britain. 2. Occupationa therapists ± Lega status, aws, etc. ± Great Britain. I. Tite. KD2968.T47D '1 ± dc ISBN X A cataogue record for this tite is avaiabe from the British Library Set in 10/12pt Times by DP Photosetting, Ayesbury, Bucks Printed and bound in Great Britain by TJ Internationa Ltd, Padstow, Cornwa The pubisher's poicy is to use permanent paper from mis that operate a sustainabe forestry poicy, and which has been manufactured from pup processed using acid-free and eementary chorine-free practices. Furthermore, the pubisher ensures that the text paper and cover board used have met acceptabe environmenta accreditation standards. For further information on Backwe Pubishing, visit our website:

5 Contents Foreword iv Preface to second edition v Preface to first edition vi Abbreviations viii Chapter 1 Occupationa Therapy 1 Chapter 2 The Lega System 11 Chapter 3 Registration and the Heath Professions Counci 20 Chapter 4 Professiona Conduct Proceedings 30 Chapter 5 Education and Training 38 Chapter 6 Rights of Cients 46 Chapter 7 Consent and Information Giving 58 Chapter 8 The Duty of Confidentiaity and Data Protection 67 Chapter 9 Access to Records and Information 88 Chapter 10 Negigence 97 Chapter 11 Heath and Safety 117 Chapter 12 Record Keeping 143 Chapter 13 Statements, Reports and Giving Evidence in Court 152 Chapter 14 Handing Compaints 169 Chapter 15 Equipment Issues 179 Chapter 16 Transport Issues 201 Chapter 17 Statutory Organisation of Heath and Socia Services 209 Chapter 18 Community Care and the Rights of the Disabed 226 Chapter 19 Empoyment Law 248 Chapter 20 Physica Disabiities 268 Chapter 21 Menta Iness 283 Chapter 22 Learning Disabiities 310 Chapter 23 Chidren 321 Chapter 24 Oder Peope 343 Chapter 25 Teaching and Research 360 Chapter 26 Compementary Medicine 378 Chapter 27 Independent Practice 385 Chapter 28 The Future 397 Appendix: Schedue 1 of the Human Rights Act Gossary 404 Further Reading 409 Tabe of Cases 413 Tabe of Statues 417 Index 429

6 Foreword Occupationa therapists practising in the eary part of the twenty-first century, whether empoyed in heath, socia care or the private and vountary sector, are working in a constanty changing environment, constructed and framed by egisation and ega ruings. Cients and patients are at the centre of practice, chaenging practitioners who are providing services within new organisations and structures whist responding to the needs of oca communities. Modernisation has had a major impact on pubic services and the way they are deivered. Occupationa therapists have worked hard to improve access to their services, deveoping new roes responsive to patient need, redesigning the way services are deivered and embracing equaity and diversity. Occupationa therapists have ong understood that those patients and cients receiving care are we informed about the quaity of their oca services and want to be active partners in making decisions about their own care. Pubic trust in professionas has been shaken by pubic scandas; this has informed the modernisation of professiona reguation to ensure fitness to practice and make sure that the pubic are protected. Occupationa therapists have to demonstrate their competence, be cear about their professiona and manageria accountabiity, be activey invoved in risk management and be sure that cear governance structures are in pace to underpin their work. To both new and estabished practitioners the pace of change and new initiatives can seem daunting, however; change is happening across the whoe of the United Kingdom with the devoution agenda and the impact of European egisation. The practice of occupationa therapy is constanty deveoping. Many practitioners are aware of the need for a sound evidence base for practice; they are scanning the horizon and promoting new ideas to improve the deivery of heath and socia care wherever it is deivered now and in the future. In the preface to this second edition of this book the author sets out its aims `against the compex background of major organisationa and ega changes'. Bridgit Dimond encourages occupationa therapists to use the book and makes it cear that practitioners do not have to have ega knowedge. The ega frameworks within which occupationa therapy practice is deivered are set out ceary in a readabe and practica format. I commend this book to occupationa therapists. It is an essentia practice guide, just as essentia as an anatomy, physioogy or psychoogy textbook. It wi ensure informed practice in its widest sense and make sure that practitioners have a mature understanding of the framework within which they practise. Kay East Chief Heath Professions Officer Department of Heath

7 Preface to second edition The aim of the second edition of this book is to provide an updated outine of the aw reating to occupationa therapy practice which is of direct reevance to occupationa therapists (OTs). The second edition of this book addresses the aw reevant to occupationa therapy against the compex background of major organisationa and ega changes in heath and socia care. Significant changes have occurred within the NHS and socia services and in statute and case aw over the past few years and this second edition attempts to cover these from the perspective of the OT. Unfortunatey some ega deveopments awaited in the first edition are sti awaited, such as egisation covering decision making on behaf of mentay incapacitated aduts and a new Menta Heath Act. As for the first edition, no previous ega knowedge is required and a simiar format is foowed for this edition. Many other areas coud have been incuded such as pain management and paiative care, but imitations on the book's ength have meant that this was not possibe. It is hoped that it wi prove a book for readers to dip into according to their needs and wi prove the foundation for an ongoing deveopment of ega knowedge. Language is an important vehice for demonstrating current phiosophies and attitudes. I have preferred to use the term `patient' or `cient' as appropriate to the context, rather than the term `service user' which, to my mind, paces those who receive heath and socia care on a par with raiway commuters or gas and eectricity consumers. Whist the poiticay correct modern terminoogy does not recognise that certain individuas `suffer' from specific conditions or are regarded as physicay or mentay disabed, the aw has not yet caught up with the modern anguage. Thus compensation is paid in negigence cases for `pain and suffering'; the Chronic Sick and Disabed Persons Act 1970 is sti the principa egisation on the duties of oca authorities; the Disabiity Discrimination Act 1995 defines what is meant by a `disabed person'; the Menta Heath Act 1983 is concerned with the compusory admission of those with menta disorder and with mentay disordered offenders; and the more recent Carers and Disabed Chidren Act 2000 sti uses anguage which may not be acceptabe to many occupationa therapists. I have therefore adopted the strategy that where egisation is being referred to, or cases cited, it is necessary to use the anguage used in that egisation. However, where the context permits, peope are referred to as having disabiities or menta heath issues, rather than being physicay or mentay disabed. Finay, modern usage suggests there are no `edery' peope, instead there are `oder persons'. This may not be inguisticay correct, since an 18 year od is an oder person in reation to a person beow 16, but again where the context permits I have bowed to poitica correctness. Perhaps by the third edition, the aw may have moved on.

8 Preface to first edition Occupationa therapists in the past have not sufficienty conveyed to the genera pubic the compexity, extent and significance of their work in heath and socia care. Their contribution extends from the fied of specia care babies to the care of the edery and bereaved and a intermediate stages of heath, iness and socia need, between birth and death. The ega issues which may arise are therefore vast and cover many areas of speciaist aw. It has been my task to provide the occupationa therapist practitioner, student, manager and those in reated professions and posts with an introduction to the aws which reate to the practice of occupationa therapy. It is assumed that the reader wi have no previous ega knowedge and a gossary has been provided to expain some of the technica ega anguage. It is essentiay a book which is concerned with the practica aspects of the aw as it appies to occupationa therapy and exampes of the specific ega concerns are derived to a considerabe extent from the many questions raised with me by occupationa therapists across the country. The anticipation is that this introduction to the aw wi enabe the occupationa therapist to deveop the knowedge and awareness of the ega impications of her practice so that she can protect both her cient and hersef. Terminoogy in reation to gender aways causes concern and I have recognised the fact that the profession is mainy femae and thus referred to the occupationa therapist as she or her. This shoud be interpreted as incuding he and him. Persons cared for by occupationa therapists are variousy caed `patients, cients, residents, customers and consumers' and I have in the main used the term cient, but where the context makes other terms more appropriate I have used these. The statutory changes which took pace in 1990 with the introduction of the interna market into heath care and the deveopments within community care are sti working their way through the roe and profession of the occupationa therapist. Further major changes are to come with a major reorganisation of the reguation of the professions suppementary to medicine. It is hoped that the knowedge obtained from this book on the aw appying to occupationa therapist wi enabe the reader to meet these chaenges and continue to deveop a comprehensive and high quaity service to her cients.

9 Acknowedgements I am once again consideraby indebted to the Coege of Occupationa Therapists for their whoehearted support of this second edition and their considerabe assistance with materias and advice. I woud ike to thank in particuar Bery Steeden, Moo Ling Boey, Henny Pearmain, Anne Lawson-Porter, Care Leggett, Karen Jasinska and Eizabeth White for their hep. Many of those OTs working in speciaist areas have aso provide me with information and I woud ike to thank Louise Aywin, Jo Bray, Gi Brown, Keith Foster, Lena Hanen, Juie Hughes, Madeeine Mooney, Kate Sheen, Nicky Smith, Juie Vickerman, and their coeagues. I woud ike to express my gratitude in particuar to Jayne Cox for her assistance in aowing me to use the resources of the ibrary for the Occupationa Therapy Schoo in Waes. I am aso consideraby indebted to the many occupationa therapists whom I have met in many seminars and workshops across the country who have assisted me by raising topics reevant to their practice which were incuded in the book. Finay, I woud ike to record my indebtedness to my famiy and friends who encouraged me in this work, in particuar, Bette who read the typescript with her usua thoroughness and prepared the index and tabes.

10 Abbreviations ACAS ACOP ACPC ADL AHP AOMH BAOT BCMA CAFCASS CAM CDRP CHAI CHC CHI CNST COPE COREC COSHH COT CPA CPD CPPH CPR CPS CPSM CSCI DEE DfES DFG DHA DISC DNR DoH DRC DSS EC EHR Advisory, Conciiation and Arbitration Service Approved Code of Practice Area Chid Protection Committee: activities of daiy iving Aied Heath Professions Association of OTs in Menta Heath British Association of Occupationa Therapists British Compementary Medicine Association Chid and Famiy Court Advisory and Support Service compementary and aternative medicine Crime and Disorder Reduction Partnerships Commission of Heathcare Audit and Inspection Community Heath Counci Commission for Heath Improvement Cinica Negigence Scheme for Trusts Committee on Pubication Ethics Centra Office for Research Ethics Committees Contro of Substances Hazardous to Heath Coege of Occupationa Therapists care programme approach; comprehensive performance assessment continuing professiona deveopment Commission for Patient and Pubic Invovement in Heath Civi Procedure Rues Crown Prosecution Service Counci for Professions Suppementary to Medicine Commission for Socia Care Inspection Department for Education and Empoyment Department for Education and Ski disabed faciity grant district heath authority Disabiity and Information Centre do not resuscitate Department of Heath Disabiity Rights Commission Department of Socia Security European Community eectronic heath record

11 Abbreviations EPIOC eectricay powered indoor/outdoor wheechairs EPR eectronic patient record EWG externa working group FHSA famiy heath services authorities GDC Genera Denta Counci GMC Genera Medica Counci GSCC Genera Socia Care Counci HAI hospita acquired infection HASAW Heath and Safety at Work Act 1974 HEIs Higher Education Institutes HIS hospita information system HPC Heath Professions Counci HRDG Heath Records and Data Protection Review Group HSC Heath and Safety Commission HSE Heath and Safety Executive IADL instrumenta activities of daiy iving ICAS Independent Compaints and Advice Services ICP integrated care pathways IM&T information management and technoogy JP Justice of the Peace JVC Joint Vaidation Committee LA oca authority LOLER Lifting Operations and Lifting Equipment Reguations LREC Loca Research Ethics Committee MCA Medicines Contro Agency MDA Medica Devices Agency MHAC Menta Heath Act Commission MHRA Medicines and Heathcare Products Reguatory Agency MHRT Menta Heath Review Tribuna MREC Muti-Centre Research Ethics Committee NAI non-accidenta injury NAO Nationa Audit Office NAPOT Nationa Association of Paediatric Occupationa Therapists NCSC Nationa Care Standards Commission NHSLA Nationa Heath Service Litigation Authority NICE Nationa Counci for Cinica Exceence NMC Nursing and Midwifery Counci NPSA Nationa Patient Safety Agency NSF Nationa Service Frameworks OOS occupationa overuse syndrome OT occupationa therapist/occupationa therapy PACS picture archiving and communication systems PALS Patient Advocacy and Liaison Service PCT Primary Care Trust PUWER Provision and Use of Work Equipment Reguations PVC persistent vegetative state QAA Quaity Assurance Agency for Higher Education RADAR Roya Association for Disabiity and Rehabiitation RAE research assessment exercise ix

12 x RCP REC RIDDOR 95 RMO RSI SENDA SHA SOAD SRSC SRV SSD SSI UKCCSG WDC WFOT WRULD Abbreviations Roya Coege of Psychiatrists Research Ethics Committee Reporting of Injuries, Diseases and Dangerous Occurrences (Reguations) 1995 responsibe medica officer repetitive strain injury Specia Educationa Needs and Disabiity Act strategic heath authority second opinion appointed doctor Safety Representatives and Safety Committees (Reguations) socia roe vaorisation socia services department Socia Services Inspectorate United Kingdom Chidren's Cancer Study Group Workforce Deveopment Confederation Word Federation of Occupationa Therapists work reated upper imb disorder

13 Chapter 1 Occupationa Therapy In attempting to identify the ega issues reevant to occupationa therapy practice, I was immediatey confronted by the probems in defining occupationa therapy and identifying the scope and content of occupationa therapy practice. To ink the work of the occupationa therapist (OT) in caring for the mentay disordered with anorexia or in ooking at feeding regimes and working with dietitians, with the roe in assessing and prescribing for wheechairs, seemed impossibe. Simiary, what has the work of the OT in specia care baby units in common with that of her coeague in a forensic psychiatric unit? To provide a definition of occupationa therapy which covers such diverse activities is a major chaenge. This was taken up in a major review conducted by Louis Bom-Cooper in 1989 into the theory and practice of occupationa therapy. The report 1, which was commissioned by the Coege of Occupationa Therapists (COT), expored the changing demographic pattern and the growth in recognition of the need for a support service ike occupationa therapy to assist peope to regain or deveop their fu potentia. Definition of occupationa therapy The first definition of an occupationa therapist used by the Association of Occupationa Therapists 2 was: `Any person who is appointed as responsibe for the treatment of patients by occupation and who is quaified by training and experience to administer the prescription of a Physician or Surgeon in the treatment of any patient by occupation.' Occupationa therapy was defined by the Counci for Professions Suppementary to Medicine (CPSM) booket 3 as: `the treatment of physica and psychiatric conditions using specific seected activities in order to hep peope who are temporariy or permanenty disabed to recover independence and cope with everyday ife. Therapists work in one of three main areas: with the physicay disabed, with those with menta heath probems, and with peope who have earning disabiities.' This is much narrower than the definition which Bom-Cooper suggested in his Commission of Inquiry. The Commission's report adapted the definition of occupationa therapy used by the COT and recommended its adoption: `Occupationa therapy is the assessment and treatment in conjunction and coaboration with other professiona workers in the heath and socia services, of peope

14 2 of a ages with physica and menta heath probems, through specificay seected and graded activities, in order to hep them reach their maximum eve of functioning and independence in a aspects of daiy ife, which incude their persona independence, empoyment, socia, recreationa and eisure pursuits and their interpersona reationships.' Stereotypes and core phiosophy The Bom-Cooper report discussed the outdated stereotypes of the profession associated with basket making and ooked at changing the name to get away from the myths and out-of-date attitudes to the profession. It considered that the most suitabe name woud be `ergotherapy', but recognised the imitations of this name because of its association with ergonomics and being too narrow. In the end the report abandoned the task of suggesting a name and made no recommendation on the tite. The COT issued a statement on definition in May in ine with that suggested in the Bom-Cooper report. It identified four facets of the therapeutic roe: prevention habiitation and rehabiitation retraining and maintenance readjustment. It aso defined the other roes of the OT, i.e. the advisory and educationa roe and the management roe. In 2000 the COT suggested that an appropriate definition of the work of an occupationa therapist woud be: `Occupationa therapists treat peope of a ages with menta and physica probems through meaningfu occupation to improve everyday function and prevent disabiity.' 5 The heart of the OT's function has been widey debated. Thus Phiips and Renton 6 ask whether assessment of function shoud be the main aim of the OT's roe. Jenkins and Brotherton 7 discuss an attempt to find a theoretica framework for occupationa therapy. Some vauabe insight into the phiosophy behind occupationa therapy as a profession was obtained from the third edition of Turner et a.'s cassic work on occupationa therapy 8. The underying thoughts and common inks were identified as: Lega Aspects of Occupationa Therapy individuas are each in a state which they wish to improve; the therapist uses activity as the medium for this improvement; individuas are aiming for the restoration or achievement of the skis required for daiy ife and have the capacity for change needed to achieve this; each person is an individua and inherenty different from any other. In order to achieve these objectives the OT must be skied as a teacher, as a craftsman, as a purchaser and assessor of equipment and cients, as a therapist in understanding a menta and physica conditions, as a communicator, as a provider of heath care, and so on. The aw impacts upon them a. In their fifth edition the editors of this work note that there has been an enormous change in cuture which `has seen a growth in the need for occupationa therapists to demonstrate that their interventions are based on sound cinica reasoning, with a specific brief to provide evidence for the efficacy of their practice. The introduction of cinica governance,

15 evidence-based practice and quaity audit has shaped the remit of therapists in heath, socia care and private practice.' The ega impications of this significant cutura change are enormous and can be seen throughout this text. Annie Turner 9, in her first chapter on the history and phiosophy of occupationa therapy, suggests that a phiosophy on which to base the profession's practice, theory and research coud consist of the foowing concepts: Occupationa Therapy 3 Peope are individuas and inherenty different from one another Occupation is fundamenta to heath and we-being Where occupationa performance has been interrupted a person can: * Use occupation and/or activity to deveop the adaptive skis required to acquire, maintain or restore occupationa performance * Modify their occupations and/or activities to faciitate occupationa performance Occupationa therapy and the spiritua dimension In the Casson Memoria Lecture 2001 Gwiym Wyn Roberts 10 considered the future deveopment of higher eve practice and stated that occupationa therapy needed to consider a spiritua context of our work, our vaues and how we vaue ourseves. The spiritua content and context of occupationa therapy has been widey debated, incuding the infuence of Eastern and Western phiosophies 11. Some have turned to Zen Buddhism as the foundation of occupationa therapy practice. Key and McFarane 12 emphasise the vaue of Chinese phiosophy in providing the basis for a new, modified, hoistic approach to occupationa therapy. They aso show the extent to which the principes are aready being used, abeit indirecty, in occupationa therapy management and treatment, for exampe the genera systems theory and sensory integration theory. Lorraine Ude and Coin Chander 13 discuss the roe of the occupationa therapist in addressing the spiritua needs of cients and note that in order to further discussion on this issue it is necessary to consider: The extent to which spirituaity has an impact upon heath and we-being The question of whether spirituaity is a necessary component of hoistic care The specific training and guideines that woud be needed. This phiosophy aso has importance in reation to the terms in which the OT views her reationship with her cient and the rights of the cient. Non-interference and sefhep are important features of a cient centred therapy. This concern with the phiosophy of the OT is taken further by Barnitt and Mayers 14. They show that the starting point woud appear to be an incompatibiity in that humanists beieve that individuas, not God, are responsibe for their own existence whie Christians ook to God for rues and principes to guide behaviour. Cuniffe 15 asks what rights patients have with a treatment containing phiosophy, theory or spiritua beief. The answer must be that it is impossibe to divest the therapy from any such content and, as Cuniffe emphasises, it is important that within occupationa therapy the patients have a right to be informed of the phiosophy, or spiritua beief, contained in the treatment. He adds descriptivey that `there is no difference between the surgeon's knife and a treatment beief that cuts theoreticay, psychoogicay or spirituay in the wrong pace'.

16 4 Lega Aspects of Occupationa Therapy Inevitaby OTs have become concerned with the reevance of occupationa therapy to issues reating to the quaity of ife 16. Katrina Bannigan 17 urges every occupationa therapist to communicate passionatey what she or he does `so that our vision shines through'. Core knowedge and skis required by OTs This ongoing debate as to the phiosophy and function of occupationa therapy wi have a major impact in determining the reevant skis required. The Bom-Cooper report identified the core knowedge and skis required by OTs under four headings, shown in Figure 1.1. (Reference shoud aso be made to Chapter 5 on education and definition of core skis and competencies.) Figure 1.1 Core knowedge and ski required by OTs. (1) Knowedge of the inteigence, physica strength, dexterity and personaity attributes required to perform the tasks associated with a whoe gamut of paid and unpaid occupations and vaued eisure pursuits. (2) The professiona ski to assess potentiaities and imitations of the physica and human environments to which patients have to adjust, and to judge how far these environments coud be modified and at what cost to meet individua needs. (3) Pedagogic skis required, first to teach peope how to acquire or restore their maximum functiona capacity, and second to supervise and encourage technicay trained instructors and unquaified assistants in their tasks of impementing and monitoring therapeutic recommendations. (4) The psychoogica knowedge and skis to dea with anxiety, depression and mood swings which are the frequent aftermath of serious threats to heath or of continuing disabiity, and to motivate, or remotivate, those with temporary or persistent disabiities to achieve their maximum capacity. Probems identified in the Bom-Cooper report In discussing the attempt of the profession to estabish its professiona identity and autonomy, major probems were identified in the Bom-Cooper report: The dominant position of the medica profession in the provision of heath care and the socia work profession in the provision of socia services The dependence of OTs on doctors and socia workers for access to their cients The fase and damaging stereotype that other staff and the pubic have of their function The pronounced femae composition of the profession Questions over occupationa therapy's efficacy, a matter of increasing importance in the interna market. There is unfortunatey no cear evidence since the Bom-Cooper report was pubished, that a these weaknesses have been corrected. Whist the interna market has been aboished, occupationa therapists sti need to show vaue added to the quaity of ife of their patients/cients and that they are a service which can provide significant benefits. Both the consutants and the cients must be convinced of the benefits which OTs can bring in the rehabiitation and socia and heath care of the vast majority of patients and cients.

17 Occupationa Therapy 5 Concusions of the Bom-Cooper report The report considered the roe, function and organisation of the profession and reached the foowing concusions: Occupationa therapy is needed as an integra part of heath and socia service provision Athough there is room for devoution of some of the work at present performed by trained OTs to their hepers and cerica staff, there wi be a continuing and expanding need for fuy professiona OTs Further consideration shoud be given, in the ong term if not in the immediate future, to the creation of a united profession of rehabiitation therapist, permitting post-quaification speciaisation In the decade foowing the report and increasingy into the twenty-first century occupationa therapy shoud be argey reocated in the community care services. Recommendations in the report addressed to the COT cover the topics shown in Figure 1.2. Figure 1.2 Recommendations of the Bom-Cooper report. number and norms quaifying standards depoyment negotiating machinery recruitment professiona enhancement preparation Deveopments since the Bom-Cooper report The Bom-Cooper report was written at a time when the Government of the day had not indicated its intentions foowing the response to its White Paper, Working for Patients: Caring for the 1990s or foowing the Griffiths report, Care in the Community: Agenda for Action, It was therefore impossibe in that uncertainty for the proposas of the inquiry to be precise. Since that time there have been fundamenta changes in the organisation and management of heath and socia care; these are considered in detai in Chapters 17 and 18. These deveopments incude: the impementation of the NHS and Community Care Act 1990 and major changes in reation to the management of heath care; the introduction and the aboition of the interna market; the estabishment of NHS trusts; primary care trusts and care trusts and the introduction and the aboition of GP fundhoders. New unitary authorities for oca government with socia services taking over responsibiity for the purchase of paces for cients in nursing and residentia homes for those admitted after 1 Apri Significant new institutions of inspection for heath and socia care have been set up and were estabished in Apri These major structura changes in the organisation of the NHS present significant chaenges for the OT. A usefu anaysis of the impact of organisationa change upon the roe and future of occupationa therapy is given by Chris Loyd and Robert King 18. They consider that whist the scope and compexity of the restructuring of the NHS present considerabe chaenges, OTs are we paced to meet these. The core vaues of the profession are congruent with community-focused, cient-centred and outcome-oriented modes of service deivery. In addition, the emphasis on enabe-

18 6 Lega Aspects of Occupationa Therapy ment occupation provides opportunities to add new roes to occupationa therapy. OTs have the skis that are consistent with working at the eve of case management and in heath promotion. Occupationa therapy and physiotherapy Bom-Cooper suggested that consideration shoud be given to the creation of a united profession of rehabiitation therapist. This idea has not in genera found favour but the reationship between occupationa therapy and physiotherapy has ed to coser communication between the professiona associations of OTs and physiotherapists. Whether there is unnecessary dupication of skis between occupationa therapists and physiotherapists is considered by Janet Goedge 19, who emphasises that occupationa therapists shoud be using purposefu activity and occupations as their therapeutic media, with imited use of activity. (These distinctions are expained in earier artices 20.) Activities coud be used by physiotherapists, but not purposefu activity or occupation. This is where the two professions coud see the distinctions in their therapeutic media. She notes however that the enduring concern is whether managers, purchasers and users of heath care can understand the distinctions sufficienty. The estabishment of the Heath Professions Counci and the greater fexibiity that it can give to the recognition of new state registered professions may faciitate coser associations between physiotherapy and occupationa therapy. Cient-centred occupationa therapy Thema Sumsion 21 discusses the definition of cient-centred practice that was deveoped from 67 OTs participating in nine focus groups; 165 components of cientcentred practice were generated and anaysed to form seven themes. The fina definition was: `Cient-centred occupationa therapy is a partnership between the cient and the therapist that empowers the cient to engage in functiona performance and fufi his or her occupationa roes in a variety of environments. The cient participates activey in negotiating goas which are given priority and are at the centre of assessment, intervention and evauation. Throughout the process the therapist istens to and respects the cient's vaues, adapts the interventions to meet the cient's needs and enabes the cient to make informed decisions.' The author states that if therapists are working according to this definition, they shoud be abe to ensure that cients do fee ike vaued human beings. From interface to integration In January 2002 the Coege of Occupationa Therapists pubished a consutation paper on a strategy for modernising occupationa therapy services in oca heath and socia care communities 22. This considered a new mode of a community-based OT practice and sought responses to this concept. The Coege stated that: `The deveopment of a new community-based occupationa therapy genera practitioner mode is centra to its wish to resove the probems around the interface

19 between heath and socia care. We see this as pivota to an integrated approach that enabes services to be deveoped as a continuum that is focused on, and responsive to, the needs of a service users and their carers.' The COT considered that this mode woud assist the OT in responding to the current nationa and country-specific Government poicies and priorities incuding: Occupationa Therapy 7 Promoting independence (COT prefers the term `inter-dependence') Preventing avoidabe or unwanted dependence Addressing socia isoation Reducing waiting ists Deivering on the objectives and standards in the Nationa Service Frameworks Working in partnership with individuas and their carers Working coaborativey Eiminating dupication Supporting pubic heath and prevention Seeking to provide services on an increasingy sound evidence base Supporting vaue for money and best vaue regimes Promoting recruitment and retention. The consutation ended in Apri 2002 after which it was the intention of COT to pubish a series of occasiona papers focusing on key impementation issues to faciitate ongoing diaogue and deveopment. At the time of writing pubication of these papers is awaited. Concusions on definition of occupationa therapy Edward Duncan 23 anayses the core skis required of an OT working in menta heath and concudes: `It is time for the profession to move from its adoescent identity crisis, within which at times it appears to be stuck, to its rightfu sense of a coming of age. This step, as painfu for a profession as it is for an individua, woud aow the fruitess search for a prescriptive definition of what and what is not occupationa therapy to end. Studies of occupationa therapy and the further deveopment of an understanding of occupationa performance coud then deveop.' A simiar attitude is reveaed in a ight-hearted paper, but deaing with a very serious topic, in which Adam Goren 24 expores the identity of the occupationa therapist and concudes that it `is sti a profession in its youth, unsure of its own identity, sensitive to its own environment, rebeing against its own conformity, (and in need of some direction and boundaries), highy adaptabe, creative, curious and impressionabe'. He suggests that this youthfuness may aso be the key to a more sensitive, nourishing and mature way of working with cients and patients. The debate on the roe and function of occupationa therapy may possiby never end. There is perhaps a danger of too much nave gazing, too much worrying about what OTs shoud ca themseves and their work. Perhaps, as Edward Duncan suggests, it is better to move on and provide the service. The HPC has pubished proficiencies for each of the professions registered by it.

20 8 Lega Aspects of Occupationa Therapy Each registrant has a copy of these proficiencies and it is ceary incumbent upon each person to ensure that they maintain and deveop their competence. (See Chapter 5 for further discussion on this.) From the ega perspective it is cear that any book which attempts to be reevant to a aspects of the roe of the OT needs to be comprehensive and far reaching in its coverage, and it is hoped that this book wi provide the necessary framework. - The future Recenty we have seen the epic work of Ann Wicock in tracing the journey of occupationa therapy from the eariest times to the present day 25. Her concuding hopes for the work are that it `wi encourage a greater range of questions, research and initiatives to faciitate the growth and direction based on in-depth and investigative practices'. The two voumes of the history of occupationa therapy sponsored by the British Association and Coege of Occupationa Therapy shoud give OTs a sense of their history and their significance in the fied of heath and socia care. In spite of major changes since 1989, the recommendations of the Bom-Cooper report are sti of vaue, and perhaps another inquiry to estabish what now needs to be done in the ight of changing circumstances woud be an advantage. Major changes to the professiona registration machinery and the nature of professiona conduct proceedings were introduced in 2002 and these are discussed in Chapter 3.Their impact upon the status and roe of the occupationa therapist needs to be evauated. The recent initiative of the Coege of Occupationa Therapists to deveop new core professiona standards 26 to define standards for processes that are centra to a practising occupationa therapists in a settings wi foster the unity of the profession and assist in identifying those practices which are centra to a occupationa therapists. These new core standards wi be suppemented by cinica guideines or practice guidance which may be reevant to a speciaist group working in a particuar cinica area or care group. Both the core standards and the cinica guideines wi be referred to throughout this book, since they are pertinent to the reasonabe standard of professiona practice which the aw requires of a heath professionas. Questions and exercises 1 How woud you define the core work of the OT? 2 How appropriate do you consider the present tite of occupationa therapy is for the profession? Woud an aternative tite be more suitabe? 3 Do you consider the persona beiefs and phiosophies of OTs are reevant to their work? To what extent, if any, shoud they be taken into account by prospective empoyers?

21 References Occupationa Therapy 9 1 Bom-Cooper, L. (Chair (1989) Report of Commission of Inquiry Occupationa Therapy ± an emerging profession in heath care. Duckworth, London. 2 Quoted by Ann A. Wicock in Occupation for Heath, vo. 2: a Journey from Prescription to Sef Heath. British Association and Coege of Occupationa Therapists (2002) page Counci for Professions Suppementary to Medicine (1995) Who we are and what we do. CPSM, London. 4 Coege of Occupationa Therapists (May 1990) Statement on Occupationa Therapy Definition, SPP 140. COT, London. 5 Coege of Occupationa Therapists (2000) A definition of occupationa therapy. Coege of Occupationa Therapists, London. 6 Phiips, N. & Renton, L. (1995) Is assessment of function the core of Occupationa Therapy? British Journa of Occupationa Therapy, 58(2), 72±3. 7 Jenkins, M. & Brotherton, C. (1995) In search of a theoretica framework for Practice: Part 1. British Journa of Occupationa Therapy, 58(7), 280±5. 8 Turner, A., Foster, M. & Johnson, S.E. (eds) (1990) Occupationa Therapy and Physica Dysfunction: principes, skis and practice, 3rd edn. Churchi Livingstone, Edinburgh. 9 Turner, A., Foster, M. & Johnson, S.E. (eds.) (2002) Occupationa Therapy and Physica Dysfunction: principes, skis and practice, 5th edn. Churchi Livingstone, Edinburgh. 10 Wyn Roberts, G. (2001) The Casson Memoria Lecture 2001: A new synthesis ± the emergent spirit of higher eve practice. British Journa of Occupationa Therapy, 64(10), 493± Cuniffe, M. (1994) Rights, ethics, and the spirit of occupation. British Journa of Occupationa Therapy, 57(12), 481±2. See aso etters by Cuniffe, M., Key, G. & Wiiams, J. (1995) British Journa of Occupationa Therapy, 58(5), 220± Key, G. & McFarane, H. (1991) Zen in the art of occupationa therapy. British Journa of Occupationa Therapy, 54(3), 95±100 and (4), 130± Ude, L. & Chander, C. (2000) The roe of the occupationa therapist in addressing the spiritua needs of cients. British Journa of Occupationa Therapy 63(10), 489± Barnitt, R. & Mayers, C. (1993) Can occupationa therapists be both humanists and christians? British Journa of Occupationa Therapy, 56(3), 84±8. 15 Cuniffe, M. (1994) Rights, ethics, and the spirit of occupation. British Journa of Occupationa Therapy, 57(12), 481±2. 16 Mayers, C. (1995) Defining and assessing quaity of ife. British Journa of Occupationa Therapy, 58(4), 146± Bannigan, K. (2000) Passion is our greatest asset in marketing occupationa therapy. British Journa of Occupationa Therapy, 63(10), Loyd, C. & King, R. (2002) British Journa of Occupationa Therapy, 65(12), 536± Goedge, J. (1998) Is there unnecessary dupication of skis between occupationa therapists and physiotherapists. British Journa of Occupationa Therapy, 61(4), 161±2. 20 Goedge, J. (1998) Distinguishing between occupationa, purposefu activity and activity, Part 1: Review and expanation. British Journa of Occupationa Therapy, 61(3), 100±4; Part 2 Why is the distinction important, 61(4), 157± Sumsion, T. (2000) A revised occupationa therapy definition of cient-centred practice. British Journa of Occupationa Therapy, 63(7), 304±9. 22 Coege of Occupationa Therapists (2002) From Interface to Integration: A strategy of modernising occupationa therapy services in oca heath and socia care communities. A consutation. COT, London. 23 Duncan, E.A.S. (1999) Occupationa therapy in menta heath: It is time to recognise that it has come of age. British Journa of Occupationa Therapy, 62(11), 521±2. 24 Goren, A. (2002) Occupationa therapy and stricty defined areas of doubt and uncertainty. British Journa of Occupationa Therapy, 65(10), 476±8.

22 10 Lega Aspects of Occupationa Therapy 25 Wicock, A.A. In Occupation for Heath, vo. 1, A Journey from Sef Heath to Prescription (2001); vo 2, A Journey from Prescription to Sef Heath (2002). British Association and Coege of Occupationa Therapists. 26 Coege of Occupationa Therapists (2003). Professiona Standards for Occupationa Therapy Practice. COT, London.

23 Chapter 2 The Lega System For the most part, this book describes the aw which appies to Engand and Waes. It aso appies to Scotand and Northern Ireand in most respects, but as devoution takes effect the differences are becoming more marked. To those who have never studied the aw, it can be perpexing. The jargon, the compexity of answers to the simpest questions, can pace a significant barrier between the ordinary heath professiona and awyers. However, a heath professionas and heath service managers have to work within the context of the aw and therefore have to know the basic ega principes which constrain or empower them, and aso have a cear understanding of the point at which it is essentia to bring in ega advice and support. The Coege of Occupationa Therapists has pubished a usefu step-by-step guide for OTs invoved in court proceedings. 1 This chapter provides an introduction to the basic terms used and a description of the framework within which the aw is impemented. The gossary provides an expanation of some of the technica terms used in this book. The foowing topics are covered in this chapter: Sources of aw European Community Law The European Convention of Human Rights Civi and crimina aw Types of civi action Pubic and private aw Lega personne Procedure in civi courts Procedure in crimina courts Accusatoria system Law and ethics Sources of aw Law derives from two main sources: statute aw and the common aw (aso known as case aw or judge made aw). The sources of aw are iustrated in Figure 2.1.The statute aw is based on egisation passed through the agreed constitutiona process. Legisation of the European Community (EC) now takes precedence over the Acts of Pariament of the UK Government (see beow). Statutory instruments drawn up on the basis of powers deegated to ministers and others suppement the Acts of Pariament. Decisions by judges in courts create what is known as the common aw. A recognised hierarchy of the courts determines which previous decisions are binding on courts hearing simiar cases. Figure 2.2 shows the civi court system and Figure 2.3 shows the crimina court system. A recognised system of reporting of judges' decisions ensures certainty over what was stated and the facts of the cases. It may be possibe for judges to `distinguish'

24 { 12 Figure 2.1 Lega Aspects of Occupationa Therapy Derivation and sources of aw. Statute Law EC Reguations Acts of Pariament/Statutes made by House of Commons House of Lords Roya Assent Statutory Instruments made by reevant Ministry aid before Pariament Common Law EC Court ruings House of Lords ± cases on important points of aw Court of Appea High Court/Crown Court Decisions binding on basis of rues of precedent and hierarchy } Statutes and statutory instruments as we as previous cases are interpreted by judges and the decisions become part of the common aw Figure 2.2 Simpified diagram showing the hierarchy of the civi courts. European Community Courts House of Lords Court of Appea High Court (Famiy Division) (Queen's Bench Division) (Chancery Division) Magistrates' Courts (Civi Jurisdiction) County Courts previous cases and not foow them on the grounds that the facts are significanty different. For exampe, before the Occupiers' Liabiity Act 1984, which defined the iabiity of the occupier towards trespassers, such iabiity was based on decisions made by judges on particuar facts. Cases which invoved harm to chidren, where the occupier had been hed iabe, were not binding on a judge hearing a case invoving an adut so that the occupier was not iabe to the adut trespasser. The earier cases reating to chidren were `distinguished'. Judges are, however, bound by statutes and, if the resut is an unsatisfactory situation, this may ony be remedied by new amending egisation. The registration of OTs is governed by the Heath Care Professions Order which was passed under the

25 The Lega System 13 Figure 2.3 The hierarchy of the crimina courts. House of Lords Court of Appea Crown Courts Queen's Bench Division Magistrates' Courts Heath Act 1999 which in turn amended the Professions Suppementary to Medicine Act Foowing these changes the Heath Professions Counci repaced the Counci for Professions Suppementary to Medicine in Apri The new reguations wi have to be interpreted by judges in court cases if disputes in reation to the meaning of the egisation arise. Thus aw deveops through a mix of statutory promugation and common aw decision making. European Community aw Since its signing of the Treaty of Rome, the UK has accepted that it is bound by the egisation of the European Community. It must therefore observe the Treaties of the European Community, and is bound by reguations made by the European Counci and the European Commission. The reguations have direct appication to member states, unike the European Directives which must be incorporated into UK aw by the passing of reguations to be effective. (This does not appy to their appication to state authorities.) Appeas can be made to the European Court of Justice on issues reating to EC aw. It is aso possibe for the UK courts to refer an issue to the European Court of Justice for a specific point on the interpretation of EC aw to be determined. The European Convention on Human Rights The European Convention on Human Rights provides protection for the fundamenta rights and freedoms of a peope. It is enforced through the European Court on Human Rights in Strasbourg. The decisions of the court are binding on a countries which are signatories to the Convention, of which the UK is one. The UK, athough a signatory, has ony recenty incorporated the Convention into UK aw as a consequence of the Human Rights Act The Act came into force on 2 October 2000 in Engand, Waes and Northern Ireand, and in Scotand on devoution. As a consequence of the Human Rights Act appicants who aege a breach of the artices by a pubic authority or by an organisation exercising functions of a pubic nature, can take their case to the courts in the UK as we as to the European Court of Human Rights in Strasbourg. The Artices of the European Convention of Human Rights can be found in the Appendix of this book. The rights of the cient are discussed in Chapter 6. The artices of the Convention aso appy to those empoyed by pubic authorities and the impications of this are considered in Chapter 19.

26 14 Civi and crimina aw Lega Aspects of Occupationa Therapy The civi aw governs disputes between private citizens (incuding corporate bodies) or between citizens and the state. Thus contract aw and the aw of torts (civi wrongs which are not breach of contract), rights over property, marita disputes and the wrongfu exercise of power by a statutory authority a come under the civi aw. Actions are brought in the civi courts in reation to an aeged civi wrong by a caimant (formery known as the paintiff) who sues a defendant. The person bringing the action has to prove the defendant's iabiity on a baance of probabiities. Crimina aw reates to actions which can be foowed by crimina proceedings in which an accused is prosecuted. The sources of crimina aw are both statutory and the common aw; thus the definition of murder derives from a decision of the courts in the seventeenth century whereas theft is defined by an Act of Pariament of 1968 as amended by subsequent egisation. A prosecution is brought in reation to a charge of a crimina offence and heard in the crimina courts, where those prosecuting have to prove beyond reasonabe doubt that the accused is guity. In the magistrates court, the magistrates decide if, on the facts, guit has been estabished and if so they sentence the accused. They aso have the power to commit the accused to the crown court for sentencing by the crown court judge (in cases where the crime demands a greater punishment than the magistrates have power to give; (certain offences can ony be heard in the crown court and are known as indictabe ony offences). In the crown court, the jury decide if the accused is guity, and if so the judge sentences. Some of the principa differences between a civi case and a crimina case are shown in Figure 2.4. Figure 2.4 Differences between civi and crimina hearings. Crimina hearings Civi hearings basis of action a charge of a crimina offence an aeged wrong by one person against another action brought by Crown Prosecution Service (CPS) ± occasionay a private prosecution the person wronged (the caimant) or if a chid, a person on his/her behaf standard of proof beyond reasonabe doubt baance of probabiities facts decided by Magistrates Courts ± the judge the magistrate(s) Crown Court ± the jury aw appied by Magistrates Courts ± the magistrate(s) (ay magistrates advised by egay quaified cerk) Crown Court ± the judge the judge(s) There is an overap between civi and crimina wrongs. Thus touching a person without his consent may be a civi wrong, known as trespass to the person; it may aso be a crime, a crimina assaut or battery. Simiary, driving a car careessy may ead to crimina proceedings for driving without due care and attention and aso ead to civi proceedings for negigence if it can be estabished that the driver was in breach of a duty of care owed to a person who was injured as a resut. Gross negigence by a heath professiona, which causes the death of a patient, can ead to crimina prose-