A legislative framework can be said to be the framework of laws within which in this instance the provision of a service is managed and delivered (Oxford, 2001). Knowledge of the law is essential for managers because a balance must be reached between the needs of service users, employees, agencies and legislation (McDonald and Henderson, 2003).
McDonald and Henderson (2003) highlight several different components of the law. Statute law consists of legislation passed by parliament; case law is rulings made by higher courts which are binding on lower courts; Regulations are made by the Secretary of State as a vehicle for the enforcement of a particular policy and which is law in all but name; Guidance describes what is expected from the way in which legislation is implemented; Directions are issued by the Secretary of State to place further duties on local authorities; Policies and Practices are the work of local agencies and reflect the agency’s individual practice and can be described as evidence of good practice.
For the purposes of this essay, examination shall be made of the ways in which the legislative framework governs the working of a 12-bedded NHS residential unit offering a programme of rehabilitation to adults aged between 16 and 65 and with mental health problems.
Some legislation is specific to the area of mental health (such as the Mental Health Act 1983); other legislation applies more generally (Health and Safety at Work Act, Food Hygiene Regulations, Human Rights Act). The same can be said of other elements of what comprises law, as detailed above: such issuances as the National Framework for Mental Health, Modernizing Mental Heath Services, and National Standards of Cleanliness for the NHS are examples of the many elements which make up the law governing the work of the organisation but which have not been entered into Statute as such. In The Mental Health Act Code of Practice (HMSO, 1999) the government advises best practice in the way the Mental Act 1983 is used in practice. Clinical Governance (RCN, 2003) is intended to provide the context of all legislative framework relating to health care.
One of the most fundamental considerations for managers is that owing to the sheer amount and breadth of legislation staff require training on an ongoing basis. Some of this is a statutory requirement. This is a dilemma if the funds are not available to support such initiatives. Some training can reasonably be done in-house, (Open University, 2003a). Staff need to be empowered in order to empower service users, another focus of government legislation (Hickey and Kipping, 1998). On the one hand, the manager is directed to consult service users and staff and trying to provide a service according to their views. Whilst a manager may ostensibly be lauded for pursuing such a policy, s/he may well reasonably question the object of the exercise. Different stakeholder groups have their own needs based upon their perceptions of the service (Hall, 2003). The manager is placed at the intersection of a Government committed to overcoming old divisions between health and social care and removing legal obstacles to joint working (Waine and Henderson, 2003), and the exigencies of a service which they are providing. The Health and Social Care Act 2001 legislates in favour of partnerships between different agencies. Whilst this can work successfully (Open University, 2003b), conflicting pressures from all sides can fracture the arrangement (Charlesworth et.al., 2003).
Staff need training in order to appropriately implement legislation within the workplace. It may seem an obvious point to make, but if staff are so often on training courses staffing the unit itself may be a problem. This may ultimately involve the deployment of agency staff, which has concomitant budgetary considerations. The manager must balance the needs of the organisation with the need for staff to develop their roles within the organization (NHS Plan; Department for Employment and Learning, 2004). The management of people is a key component of modernisation and improvement in the NHS plan (Johnson, et.al, 2003); failure to support the development and supervision of staff is a major source of workplace stress (Olofsson et.al., 2003).
Henderson and Seden (2003) have observed how managers see issues of the workplace with great clarity but feel unable to respond due to the demands on their time from the broader responsibilities of management. The manager might be forgiven for retreating to an enclosed space where there are few distractions in order to deal with strategic work. However both service users (Connolly and Seden, 2003) and staff (Waine and Henderson, 2003) prefer the manager to be visible and readily available.
One way of assuaging this situation is to delegate work to staff in order to discharge certain obligations required of the organization. These might be for example the appointment of a Health and Safety Representative from amongst the team, or a Mental Health Act Co-ordinator. These team members can then be the point of contact for specific issues involving the legislative framework. Team members may however struggle with this and feel obligated to accept pressure of extra work in the belief they are supporting the team manager (Henderson and Seden, 2003). The manager may also be cautious about releasing work tasks to others, believing that these tasks may be performed differently to how they might want. One way of monitoring this is through clinical supervision (RCN, 2003), a process itself laden with pitfalls (Sawdon and Sawdon, 2003).
McDonald and Henderson (2003) note how much legislation is in fact couched in unassertive if not ambiguous terms. Whilst this means that there might appear to be an apparent lack of clarity over such issues, at the same time it gives managers (McDonald & Seden, 2003) as well as practitioners (Nolan, et.al., 2002) scope to adjust their practice so that the needs of service users are considered whilst the wider bodies of local policy and central authority are not compromised. Lipsky (cited by Seden, 2003, p. 113) refers to such practitioners as ‘street level bureaucrats’ – those working in the field who interpret the legislative framework in daily practice. A manager who accepts this from his/her team may not unreasonably be seen as complicit in compromising corporate procedures. However staff appreciate support given to them by their manager (Waine and Henderson, 2003).
The Care Programme Approach is a vital piece of government legislation of which a manager working within the mental organization must continually be aware. The Care programme Approach is a means of ensuring aftercare following discharge from hospital (Department of Health, 2004). For the organisation, which is intended as a vehicle for rehabilitation following in-patient admission, it is therefore vital for the Care Co-ordinator (usually a community practitioner) appointed under CPA to continue to be involved in the progress of the Client whilst resident at the unit. In a time when many community staff experience heavy caseloads (Community Care, 2003a, 2003b), it can be tempting for Care Coordinators to take less notice of their clients who are already settled in an environment. The manager must therefore ensure the Care-Coordinator’s continued input during a client’s residence. Since the organisation is regarded by statutory authorities as a hospital, CPA stipulations similarly apply upon discharge from the unit. The manager must strike a balance between involving the Care Coordinator whilst being sensitive to the requirements of a heavy caseload. An issue poorly handled may adversely affect future professional relationships, and is largely dependent upon the personal skills of the manager. Multi-team working is a vital component of mental health care (NHS Plan, National Service Framework, Modernizing Mental Health Services), and one encouraged by a government committed to overcoming old divisions between health and social care and removing legal obstacles to joint working (Waine and Henderson, 2003).
Whilst it is vital to the well-being of service users in residential care to feel that they have a ‘home’, the organisation is a statutory provision which means that it is subject to the usual laws governing employment and environmental safety such as Health and Safety legislation, COSHH regulations, Food Hygiene Regulations and so forth, which in turn necessitates that such matters are mechanised as this guarantees the efficiency of the institution (Goffman, 1970). So, for example, whereas in their own home a service user may leave doors open for ease of access, in a residential unit fire doors must remain closed at all times. In one sense this is disempowering for the service user, who is not able to behave according as if in their own home – and such regulations make visible that the pivot of power is actually with the institution. It might appear that this is contrary to the plethora of government directives (National Health Service and Community Care Act 1990, National Service Framework for Mental Health, Modernizing Mental Health Services, to name but a few) to empower the service user and to consult them over the form of service provision. Such things are of great import to service users, since they are indicative of the level of control they have over their own day-to-day existence; but is perhaps not of equal significance to an institution which has weightier considerations. Likewise there will be occasions where despite government directives, a preferred service is not available (Hickey and Kipping, 1998), and cost is a consideration (McDonald and Henderson, 2003). The manager is thereby placed in the position of finding a ‘best-fit’ service for the client.
The Human Rights Act 1998 requires all legislation to be compatible with it and with the European Convention on Human Rights (McDonald and Henderson, 2003) – this was given by the Department of Health as one of the primary reasons for the Consultation document on the proposed Mental Health Bill (Department of Health, 2002), which following the consultation period was withdrawn (Muijen, 2003).
For example, Article 8 of the Human Rights Act 1998 emphasises a right to privacy. It might therefore be questionable whether staff should hold a pass key in order to gain access in an emergency. This can on the other hand be reasonably justified under health and safety legislation ensuring the safety of residents. The same Article also emphasises a right to family life. The Trust may ostensibly practice family friendly policies for its employees; yet as one manager noted releasing staff can adversely affect the working of the unit and the needs of the service (Days in the life, 2003). The manager does not want to make enemies of their staff!
Any simple breakdown of population statistics will indicate the mixed ethnicity of a local population. Several of the recommendations of the Independent inquiry into the death of David ‘Rocky’ Bennett are to be adopted by the Department of Health (Guardian Unlimited, 2004). The sum of the recommendations is to highlight the need for the users of the mental health service to receive culturally-appropriate care. This may mean face-to-face support and contact with workers of similar ethnicity. One disincentive for equal opportunities policies to be introduced into the workplace is that of cost at a time when NHS budgets are limited (Culley, 2001).
The organisation is staffed 24-hours a day by registered nurses, who operate within their own Code of Conduct (Nursing and Midwifery Council, 2002a). The manager themselves may be a registered practitioner, though Kitchener et. al. (2003) have noted that the new style of management which has come to typify public services since the 1990s requires fewer practitioners to act as managers. Within the organisation which is the subject of this essay the manager must always consider how nursing staff work according to the Code of Conduct. If the manager is themselves a frontline manager, they have their own consideration about maintaining the currency of their nursing knowledge, one of the requirements of PREP (Nursing and Midwifery Council, 2002b) and thereby a condition of continued nursing registration.
Due to the legislative framework which has defined the NHS as a quasi-market, the service must continually be evaluated (Waine and Henderson, 2003). Clarke (2003) suggests that the operation of quasi-markets within healthcare in fact results in an emphasis as to how the service can be adjusted or improved in order to improve efficiency, lower costs and provide best value (Brown, 2001). The consequence of this has been an audit explosion (Power cited by Clarke, 2003, p. 199) which in practice diverts funding away from service provision on the ground to ways of measurement. It falls upon the manager of the organization to justify their service on the one hand in order to maintain a quasi-competitive edge, but on the other they must provide a service to clients.
As illustrated by Figure 1 above, there is an overwhelming plethora of legislation and guidelines for a manager to consider. Even to consider them all during the course of this essay is exhausting. If every single item were to direct provision of a service, the service and the manager would no doubt become paralysed. Managers are well-placed to perceive any gap between the aspirations of central government and the day-to-day realities of the service (Connolly and Seden, 2003). In the cause of expediency short-cuts and ad hoc decisions must be made about the work. Whilst the law is in place for a reason, choices must be made daily at the operational level which whilst strictly speaking may not be according to the letter of the law are in the spirit of the law (McDonald and Henderson, 2003). The overarching dilemma which a manager faces is to organise a service within the context of organisational and financial constraints. To a large level such constraints are defined by the legislative framework. A manager’s dilemmas are not always readily apparent, but rather ensue when different elements of the legislative framework are daily taken into account.
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