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5.1 Appendix 1 – Legislation and guidance

The Care Act 2014

 

Background 

The Care Act 2014 received Royal Assent on 14th May 2014.  The Act for the first time places Safeguarding on a statutory footing. 

Part 1 of the Act, which includes our safeguarding duties (sections 42-46) comes into force on the 1st April 2015. 

The Care Act introduces major reforms to the legal framework for adult care and support in England - to the duties of local authorities; to the rights of those in need of care and support; and to the funding system for care and support. 

These changes will impact on the way we do business and the roles of our workforce.  They will also have an impact on care providers and user organisations and their roles in the delivery of care, and the expectations and duties placed on them by the new legislation.

 

Guidance 

The Act is supplemented by ‘Care and Support Statutory Guidance’, available on www.gov.uk/government/publications.  This document provides guidance on Safeguarding at section 14.  The Act and guidance replaces the ‘No Secrets’ Guidance 2000 and ‘Safeguarding Adults – A National Framework of Standards for Good Practice and Outcomes in Adult protection Work’ 2005.

 

Safeguarding 

The Care Act sets out formal duties and requirements for local authorities in relation to safeguarding adults. 

The Care Act requires that the local authority (“LA”) must:

  • Make enquiries, or ensure others do so on our behalf, if it believes that an adult, who is in need of care and attention, is being abused or neglected, or is at risk of, abuse or neglect, and that they are unable to protect themselves. An enquiry should establish whether any action needs to be taken to stop or prevent abuse or neglect, and if so, by whom.
  • Set up a Safeguarding Adults Board (SAB) The purpose of the SAB is to help and protect adults in our area who are suffering, or at risk of suffering, abuse or neglect and to ensure that the local authority and other agencies and organisations meet their duties under the Care Act.  SABs are responsible for arranging Safeguarding Adults Reviews (SARs).
  • Arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a Safeguarding Enquiry or Safeguarding Adult Review (SAR), where the adult has ‘substantial difficulty’ in being involved in the process and they do not have an appropriate person to represent and support them.
  • Co-operation between the Local Authority and each of its relevant partners in accordance with S6 Care Act in order to protect adults experiencing, or at risk of, abuse or neglect.
  • Take all reasonable steps to protect the moveable property of an adult who is being cared for away from home in a hospital or in accommodation such as a care home under section 18 or 19 Care Act, and who cannot arrange to protect their property themselves, and no other suitable arrangements are being made or are in place, and where it appears to the LA that there is a risk that the moveable property may be lost or damaged.

The Care Act also requires the LA to follow the safeguarding policies and procedures of custodial settings in its area and work with prison and approved premises staff to ensure that all people in custodial settings are safeguarded. 

The LA is required to take the lead role in adult safeguarding, and therefore whilst we are able to request that other bodies or organisations undertake safeguarding enquiries on our behalf, we have a duty to ensure that those enquiries are satisfactory and any action is acted upon.  It should therefore challenge any enquiry where we consider the process and/or outcome is unsatisfactory.  

 

Gaining access to adults at risk

Identify existing powers which enable access to adults who are, or suspected to be, at risk of abuse or neglect and the legal powers to intervene.

 

Related guidance 

‘Gaining access to an adult suspected to be at risk of neglect or abuse: a guide for social workers and their managers in England, SCIE 2014’.  See: www.scie.org.uk/care-act-2014/safeguarding-adults/adult-suspected-at-risk-of-neglect-abuse

Introduction

Section 1 of the Care Act 2014 states that a local authority, in exercising its functions under Part 1 of the Act in the case of an individual, must promote that individual’s wellbeing and have regard to a number of factors including the need to ensure that any restriction on the individual’s rights or freedom of action is kept to the minimum necessary for achieving the purpose for which the function is being exercised.

 

Safeguarding enquiries 

The LA’s duties in relation to the making of enquiries do not provide an express legal power of entry or right of unimpeded access to the adult who is subject to such an enquiry.  Instead, there are a range of existing legal powers which are available to gain access should this be necessary. 

The powers which may be relevant to adult safeguarding situations derive from a variety of sources including, but not limited to, the Mental Capacity Act 2005 (MCA), the Mental Health Act 1983 (MHA) and the Police and Criminal Evidence Act 1984 (PACE), along with the inherent jurisdiction of the High Court and common law powers of the police to prevent or deal with a breach of the peace. 

Whether it is necessary to seek legal intervention and which powers would be the most appropriate to rely on in order to gain access to an adult to assess any safeguarding risk, or otherwise protect an adult, will always depend on the individual circumstances of the case.  Seeking legal advice for individual cases is always recommended if there is any form of uncertainty or doubt. 

Where appropriate, it should be considered whether an application to the court is required, or whether to seek police assistance.

 

Difficulties in gaining access 

There will be a wide range of reasons why, and circumstances when, it may be difficult to gain access to an adult who is the subject of an adult safeguarding enquiry.  Some examples include:

  • Access to the premises is being denied altogether by a third party on the premises, typically a family member, friend or other informal carer.
  • Access to the premises can be gained, but it is not possible to speak to the adult alone - because the third party is insisting on being present.
  • The adult themselves is insisting that the third party be present and there are concerns that this person may unduly influence the adult, or their responses to any enquiries.

However, the simple fact of access being refused should not automatically lead to consideration of the use of legal powers.  Such situations are often complex and highly sensitive and, if they are to be resolved successfully and safely, will need sensitive handling.  All attempts to resolve the situation should begin with negotiation, persuasion and the building of trust.  Denial of access may not necessarily be a sign of wrong-doing by the third party; it may be an indication of lack of trust of authority, guilt about their inability to care or fear that the adult will be removed from the home.  It is vital that until the facts are established the practitioner adopts an open-minded, non- judgemental approach. 

If the situation cannot be resolved, then the LA should consider whether the circumstances justify intervention.  There should be a discussion with any relevant partners involved, and where appropriate legal services, about the perceived risks, the likelihood of risk or neglect occurring and the potential outcomes of both intervening and not intervening.  As in any other situation, any decisions and the reasons for them should be clearly and fully recorded and shared with others as necessary and lawful.  Where the adult lacks capacity this will take the form of a Best Interests Meeting in compliance with the MCA 2005. 

If the conclusion is that the use of legal powers is necessary and justifiable, the next step is to consider what powers would be most appropriate and proportionate to the situation. 

Therefore managers and practitioners involved in safeguarding need to be aware of existing legal powers which can be used if necessary to gain access in these circumstances. 

Recourse to the courts and legal powers should be considered carefully and only as a last resort, after consultation with legal services.  Before any action is taken, managers and practitioners should be satisfied that there are grounds to seek access and that the use of such powers are lawful.  If they are in any doubt, advice should be sought from Legal Services prior to any action being taken.

 

Gaining access 

At some point during the making of enquiries by the local authority, legal powers may be required to gain access to the adult who is known or suspected to be experiencing, or at risk of, abuse or neglect. 

The following legal powers may be relevant, depending on the circumstances:

  • Where the adult has been assessed as lacking mental capacity in relation to a matter relating to their welfare: the Court of Protection has the power to make an order under Section 16(2) of the MCA relating to the adult’s welfare. The Court can also appoint a deputy to make welfare decisions for that adult.
  • Where an adult who lacks capacity and is in need of care and treatment: under s5 MCA 2005 if we reasonably believe that it is in the best interests of that adult we can take steps to provide that care and treatment, including removing them to a place of safety.
  • Where an adult with mental capacity, at risk of abuse or neglect, is impeded from exercising that capacity freely eg. through physical or mental coercion, domestic abuse, etc: the inherent jurisdiction of the High Court enables the Court to make an order (which could relate to gaining access to an adult) or any remedy which the Court considers appropriate (for example, to facilitate the taking of a decision by an adult with mental capacity free from undue influence, duress or coercion) in circumstances not governed by specific legislation.
  • Where there is concern about a mentally disordered adult: Section 115 of the MHA provides the power for an approved mental health professional to enter and inspect any premises (other than a hospital) in which an adult with a mental disorder is living, on production of proper authenticated identification, if the professional has reasonable cause to believe that the adult is not receiving proper care.
  • Where an adult is believed to have a mental disorder, and there is suspected neglect or abuse: Section 135(1) of the MHA, a Magistrates Court has the power, on application from an approved mental health professional, to allow the police to enter premises using force if necessary and if thought fit, to remove an adult to a place of safety if there is reasonable cause to suspect that they are suffering from a mental disorder and (a) have been, or are being, ill-treated, neglected or not kept under proper control, or (b) are living alone and unable to care for themselves.
  • Part II of PACE provides powers to the police to enter and arrest a person who is suspected of committing certain criminal offences.
  • Common law power of the police to prevent, and deal with, a breach of the peace. The police have a common law power to enter and arrest a person to prevent a breach of the peace.
  • Where there is risk to life and limb: Section 17(1)(e) of PACE gives the police the power to enter premises without a warrant in order to save life and limb or prevent serious damage to property.   

 

Legal powers to intervene 

The following is a table of legal powers and useful references to consider in adult safeguarding cases.

 

All forms of abuse

Consider whether we could and should involve the police for any type of abuse towards an adult at risk.

Physical Abuse

Consider the following Legal Remedies:

 

Offences Against the Person Act 1861 - a criminal prosecution, this Act contains core criminal offences relating to assaults including, actual and grievous bodily harm, wounding with intent and unlawful wounding, including assaults causing cuts, serious damage to internal organs and broken bones, the administration of drugs or noxious substances so as to cause harm.  (A prosecution would have to be brought by the police.)

 

Civil action could be taken for assault, battery or false imprisonment (restraint).  The client or their representative should take legal advice from either the Citizen's Advice Bureau or an independent solicitor.  See: www.citizensadvice.org.uk

 

Criminal Injuries Compensation claim via CICA.  See: www.cica.gov.uk

 

Police and Criminal Evidence Act 1984, section 17 is a police power to enter and save life.  See: www.legislation.gov.uk/ukpga/1984/60/section/1

 

Family Law Act 1996 - can be used to obtain injunctions against perpetrators; non-molestation and occupation orders.  See: www.legislation.gov.uk/ukpga/1996/27/contents

 

Domestic Violence Crimes & Victims Act 2004 - creates an offence of causing or allowing the death of a child or Vulnerable Adult*, where they have died of an unlawful act.  The household member must have failed to take reasonable steps to protect the victim and the victim must have been at serious risk of physical harm, demonstrated by a history of violence towards the vulnerable person.

*‘Vulnerable Adult’ in this Act means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.

 

Young people under 18 years of age are also covered by Sussex Child Protection Procedures.

Sexual Abuse

Consider the following Legal Remedies:

 

Criminal prosecution - Sexual Offences Act 2003, There are specific offences that deal with Adult that lack the ability to consent to sexual relations and/or have a mental disorder.  Section 4 makes it an offence to cause a person to engage in sexual activity without consent.  Sections 30-44 provides various offences against people who lack capacity and/or have a mental disorder, including specific offences for care workers.  There is a defence to these offences if the individual did not know and had no reason to suspect that the person had a mental disorder.

 

Civil action could be taken by the individual, but they should take legal advice from either the Citizen's Advice Bureau or an independent solicitor.  See: www.citizensadvice.org.uk

 

Family Law Act 1996 - this could be considered for injunctions in the shape of non-molestation or occupation orders.  See: www.legislation.gov.uk/ukpga/1996/27/contents

Psychological Abuse

Consider the following Legal Remedies:

 

Protection from Harassment 1997 - can be used by Police or individual to obtain an injunction.  See: www.legislation.gov.uk/ukpga/1997/40/contents

 

Anti-Social Behaviour Orders - Crime and Disorder Act 1998 - police power.  See: www.legislation.gov.uk/ukpga/1998/37/contents

 

Equality Act 2010.  If someone is being treated unfavourably on the grounds of their age, disability, gender reassignment, marriage, civil partnership, pregnancy, maternity, race, religion or belief, sex or sexual orientation.

Neglect

Consider the following Legal Remedies:

 

NB: the Legal Remedies below could also apply to Self neglect and Organisational Abuse.

 

·       s5 MCA 2005 if we reasonably believe that it is in the best interests of an adult that lacks capacity we can take steps to provide that care and treatment, including removing them to a place of safety.

 

Criminal law - statute and common law can be considered, including:

 

·       s44 MCA 2005 makes it an offence for a person with care of an adult who lacks capacity, or who holds and LPA/EPA, or a deputy appointed by the Court, to wilfully neglect or ill-treat the adult.

 

·       ss20-25 Criminal Justice and Courts Act 2015 makes it an offence for a care worker, or care provider, to ill-treat or wilfully neglect an individual in their care.

 

Police and Criminal Evidence Act 1984, section 17 is a Police power to enter and save life.  See: http://www.legislation.gov.uk/ukpga/1984/60/section/1

 

Referral to CQC in circumstances in which a provider is failing to meet the national standards of quality and safety.  See: www.cqc.org.uk/file/4471

Self Neglect

Consider the following Legal Remedies:

 

Sections 9-13 Care Act 2014 and associated Regulations - duty to assess.  The local authority may be able to help manage self-neglect concerns by completing a formal assessment and putting in a care package or higher support to the individual, carer and/or family.  We should also consider our duty to promote well-being as set out in section 1 Care Act 2014.

 

If, through a person’s, self-neglect, their right, or ability to continue to reside in their accommodation is at risk, then a referral to the relevant housing authority for assistance under any relevant housing legislation should also be considered.

Financial Abuse

Consider the following Legal Remedies:

 

Lasting Powers of Attorney (LPA) were introduced by the Mental Capacity Act 2005.  See: www.legislation.gov.uk/ukpga/2005/9/contents

 

These replace the former Enduring Powers of Attorney that, after 1 October 2007, can no longer be created.  An LPA is a legal document that lets a person (`the Donor') appoint someone they trust (`the Attorney') to make decisions on their behalf.

 

There are 2 types of LPA:

·       Property and affairs LPA - allows the Donor to choose someone to make decisions about how to spend his money, including the management of his property and affairs.

·       Personal welfare - allows the Donor to choose someone to make decisions about their healthcare and welfare.  This includes decisions to refuse or consent to treatment on his behalf and deciding where to live.

 

The LPA must be registered with the Office of the Public Guardian in order to have legal standing.  A registered LPA can be used at any time, whether the person making the LPA has the mental capacity to act for himself or not.  Once the LPA is registered it continues indefinitely.  The LPA can be registered by the Attorney after the Donor has lost capacity.  An LPA can also be cancelled by the Donor, provided he has the mental capacity to do so.

 

The relevant agency can make representations to the Office of the Public Guardian if there is reasonable belief that someone may not be acting in an individual's best interest.

 

A person given a power under an Enduring Power of Attorney (EPA) before 1 October 2007 can still use it and apply to have it registered.

 

Further information about LPAs can be found on the website for the Office of the Public Guardian: www.publicguardian.gov.uk

An adult in receipt of benefits, who is unable to manage their affairs can appoint a person to do so on their behalf.  These are known as “Appointees”.  An Appointee may be an individual, or an organisation, such as a firm of Solicitors.  As an Appointee they are responsible for making and maintaining any benefits claims on behalf of the adult.

 

The DWP should be contacted if an agency has reason to suspect that an Appointee is not acting properly under the terms of their appointment, the adult is clearly able to manage their own benefits, or the Appointee becomes incapable.  The DWP should then take steps to investigate whether the Appointeeship should continue.

 

Further information about Appointeeships can be found on the Government website.  See: www.gov.uk/browse/births-deaths-marriages/lasting-power-attorney

 

The Mental Capacity Act 2005 provides for a Court of Protection to make decisions in relation to the property and affairs, healthcare and personal welfare of adults (and in certain cases, children) who lack capacity.

 

The Court has the same rights, privileges and authority in relation to mental capacity matters as the High Court.  The Court has the powers to:

·       decide whether a person has capacity to make a particular decision for themselves,

·       make declarations, decisions or orders on financial or welfare matter affecting people who lack capacity to make such decisions,

·       appoint deputies to make decisions for people lacking capacity to make those decisions,

·       decide whether an LPA or EPA is valid,

·       remove deputies or attorneys who fail to carry out their duties; and

·       hear cases concerning objections to register an LPA or EPA.

 

In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act.  It must also make sure its decision is in the best interests of the person who lacks capacity.

 

Criminal Prosecution - the Police can consider whether a perpetrator of financial abuse may be prosecuted for theft under the Theft Act 1968 - or for fraud by virtue of abuse of position under the Fraud Act 2006.  See: http://www.legislation.gov.uk/ukpga/1968/60

Organisational Abuse

Consider the Legal Remedies identified in the sections relating to: physical, sexual, psychological, financial abuse and neglect.

 

Corporate Homicide Act 2007 – an organisation is guilty of an offence under this Act if the way in which its activities are managed or organised:

·       causes and person’s death; and

·       amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

 

An organisation is only guilty of an offence under this Act if the way in which its activities are managed or organised by senior management are a substantial cause of the breach of duty.

Domestic Violence

Consider the Legal Remedies identified in the sections relating to: physical, sexual, psychological, financial abuse and neglect.

Modern Slavery

Consider the following Legal Remedies:

 

The Human Rights Act 1998 incorporates Article 4 of the European Convention on Human Rights – Prohibition of slavery and torture.

 

Criminal law, such as Offences Against the Person Act 1861, kidnapping and false imprisonment.

 

Civil law, such as the tort of false imprisonment.

Support to Individual and Family

Consider the following Legal Remedies:

 

Sections 9-13 Care Act 2014 and associated Regulations - duty to assess.  The Local Authority may be able to help manage some adult protection concerns by completing a formal assessment and putting in a care package or higher support to the individual, carer and/or family.  We should also consider our duty to promote well-being as set out in section 1 Care Act 2014.

 

If an adult’s right, or ability to continue to reside in their accommodation is at risk, then a referral to the relevant Housing Authority for assistance under any relevant housing legislation should also be considered.

Prosecution

Consider the following Legal Remedies:

 

Criminal law - statute and common law can be considered.

 

Investigation by Police and Crown Prosecution Service to prosecute perpetrators.

Removal of the person thought to be the cause of risk

Consider the following Legal Remedies:

 

Consider whether to involve the police.

 

Family Law Act 1996 - injunctions; non-molestation and occupation orders.  See: www.legislation.gov.uk/ukpga/1996/27/contents

 

Civil injunction - would need the individual to take legal advice from an independent solicitor or Citizen's Advice Bureau.  See: www.citizensadvice.org.uk

 

Mental Health Act 1983 - removal for assessment and/or treatment.

Removal of subject

Consider the following Legal Remedies:

 

Mental Health Act 1983 - removal for assessment and/or treatment.

 

Mental Capacity Act 2005 – s5.

Deprivation of Liberty Safeguards

Consider the following Legal Remedies:

 

The Mental Capacity Act Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007 and came into effect on 1 April 2009.

 

The MCA DOL safeguards apply to anyone:

·       aged 18 and over,

·       who suffers from a mental disorder or disability of the mind, such as dementia or a profound learning disability, but may include some people who have, for example, suffered a brain injury,

·       who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment, and

·       for whom deprivation of liberty (within the meaning of Article 5 of the EHCR) is considered after an independent assessment to be necessary in their best interest to protect them from harm.

 

The safeguards do not apply to people detained under the Mental Health Act 1983.

 

The safeguards cover:

·       patients in hospitals, and

·       people in care homes registered under the Care Standards Act 2000 or the Health and Social Care Act 2008 (regulated Activities) Regulations 2014,

·       whether placed under public or private arrangements.

 

The safeguards are designed to protect the interest of an extremely vulnerable group of service users and to:

·       ensure people can be given the care they need in the least restrictive regimes,

·       prevent arbitrary decisions that deprive vulnerable people of their liberty,

·       provide safeguards for vulnerable people,

·       provide them with rights of challenge against unlawful detention.

 

What are the safeguards?

·       They provide legal protection for those vulnerable who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR.

·       Every effort should be made, in both commissioning and providing care or treatment, to prevent deprivation of liberty.  If deprivation of liberty cannot be avoided, it should be for no longer than is necessary.

·       The safeguards provide for deprivation of liberty to be made lawful through `standard' or `urgent' authorisation processes.  These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge deprivation of liberty authorisations.

·       The deprivation of liberty safeguards mean that the relevant hospital or care home must seek authorisation from a `supervisory body', which includes a primary care trust, a local authority or a local health board, in order to be able lawfully to deprive someone of their liberty.  Before giving such authorisation, the supervisory body must be satisfied that the person has a mental disorder as defined in section 1 of the Mental Health Act 1983 (as amended by the Mental Capacity Act 2005) and lacks capacity to decide about their residence or treatment.

·       A decision as to whether or not deprivation of liberty arises will depend on all the circumstances of the case.  It is neither necessary nor appropriate to apply for a deprivation of liberty authorisation for everyone who is in hospital or a care home simply because the person concerned lacks capacity to decide whether or not they should be there.  In deciding whether or not an application is necessary, a managing authority should consider carefully whether any restrictions that are, or will be, needed to provide on-going care or treatment amount to a deprivation of liberty when looked at together.

 

The MCA DOLS cover:

·       How an application for authorisation should be applied for.

·       How an application for authorisation should be assessed.

·       The requirements that must be fulfilled for an authorisation to be given.

·       How an authorisation should be reviewed.

·       What support and representation must be provided for people who are subject to an authorisation.

·       How people can challenge authorisations.

 

While the MCA DOL might be for the purpose of giving treatment, the DOL authorisation does not itself authorise treatment.  Treatment in these circumstances may only be given with the person's consent (if they have capacity) or in accordance with the wider provisions of the MCA.

 

MCA DOLS must never be used as a form of punishment or for the convenience of carers or professionals.

 

For full information, including the Code of Practice, guidance and forms, see: www.gov.uk/government/publications/mental-capacity-act-code-of-practice  

 

Safeguarding adults and human rights

 

Human Rights Act 1998 

The Human Rights Act 1998 incorporates most of the European Convention of Human Rights into UK law enabling claims by individual victims to be brought in UK courts against any public bodies for breach of those convention rights. 

The Act makes it unlawful for a public body to act (by commission or omission) in a way that is incompatible with their Convention Rights.  Examples of convention rights are, right to a private and family life, right to marry, right to a fair trial, right to liberty and security etc. 

The Act requires all legislation to be interpreted and given effect as far as possible in compatibility with the Convention Rights. 

Action is taken in the County Court or the High Court to sue for compensation (damages). 

All persons have the right to live their lives free from violence and abuse.  This right is underpinned by the duty on public agencies under the Human Rights Act (1998) to intervene proportionately to protect the rights of citizens.  These rights include:

  • Article 2: 'the Right to life'.
  • Article 3: 'Freedom from torture' (including humiliating and degrading treatment).
  • Article 8: 'Right to private and family life' (one that sustains the individual). 

Any adult at risk of abuse or neglect should be able to access public organisations for appropriate interventions which enable them to live a life free from violence and abuse.  It follows that all citizens should have access to relevant services for addressing issues of abuse and neglect, including the civil and criminal justice system and victim support services. 

Remedies available should also include measures that achieve behaviour change by those who have perpetrated abuse or neglect. 

It is important that the legal rights of all those affected in relation to adults safeguarding are considered and balanced alongside those of the adult at risk.  This includes the right to natural justice and a fair right of reply. 

See: Human Rights Act 1998: www.legislation.gov.uk/ukpga/1998/42/contents
  

Disclosure and barring 

Related guidance 

DBS Checking Service Guidance

www.gov.uk/government/collections/dbs-checking-service-guidance--2

Disclosure and Barring Service website

www.gov.uk/government/organisations/disclosure-and-barring-service

Prevention Procedure

http://www.proceduresonline.com/southyorks/sab/chapters/p_pre_ad_abuse.html

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups, including children.  It replaces the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA). 

It is responsible for:

  • Processing requests for criminal records checks.
  • Deciding whether it is appropriate for a person to be placed on or removed from a barred list.
  • Placing or removing people from the DBS children’s barred list and adults’ barred list for England, Wales and Northern Ireland. 

Regulated activity describes the kind of work to which barring applies and is fully set out in the Safeguarding Vulnerable Groups (NI) Order 2007 (as amended by the Protection of Freedoms Act 2012). 

The DBS was established under the Protection of Freedoms Act 2012 and carries out the functions previously undertaken by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA).  Functions of the CRB and ISA have been transferred to the DBS under the Protection of Freedoms Act 2012 and it became operational on the 1 December 2012.   

Health and Social Care Act 2008 

See the Health and Social Care Act 2008: www.legislation.gov.uk/ukpga/2008/14/contents

  • Established the Care Quality Commission (CQC) as the new integrated regulator for health and adult social care, with powers to ensure safe and high quality services. It requires CQC to inspect, investigate and intervene where care providers are failing to meet safety and quality requirements, including hygiene standards.
  • Dissolved the Commission for Health Care Audit and Inspection, the Commission for Social Care Inspections (CSCI) and the Mental Health Act Commission.
  • Reformed professional  regulation to give patients and the public more confidence in the care they receive from health professionals, including the creation of a new adjudicator to make independent decisions about whether individual health professionals should remain in practice.
  • Strengthened the protection of vulnerable people using residential care by ensuring that any independent sector care home that provides accommodation together with nursing or personal care on behalf of a local authority is subject to the Human Rights Act 1998.
  • Extended Direct Payments to include people who lack capacity. It allows a direct payment to be made to a 'suitable person' who can receive and manage the payment on behalf of a person who lacks Capacity. 

Also see Department of Health Guidance: Positive and Proactive Care: reducing the need for restrictive interventions: 2014

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300293/JRA_DoH_Guidance_on_RP_web_accessible.pdf

Mental Capacity and Deprivation of Liberty 

This is a summary of the Deprivation of Liberty Safeguards (DoLS) and its implications for health and social care professionals.  It is not intended to be a replacement for the DoLS Code of Practice (CoP).  Professionals must refer to the Mental Capacity Act (MCA) and DoLS CoP for guidance on specific cases and to inform decisions.

 

Related guidance 

Deprivation of Liberty Safeguards Code of Practice

http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_087309.pdf 

Department of Health Advice Note (28 March 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300106/DH_Note_re_Supreme_Court_DoLS_Judgment.pdf 

Care Quality Commission - Briefing for providers on the Deprivation of Liberty Safeguards (April 2014)

http://www.cqc.org.uk/sites/default/files/media/documents/20140416_supreme_court_judgment_on_deprivation_of_liberty_briefing_v2.pdf

 

Introduction 

The Mental Capacity Act 2005 (MCA 2005) provides a statutory framework to empower and protect vulnerable adults who are not able to meet their own decisions.  One of the ways it does this is by putting Adults at the heart of the decision-making process. 

Capacity describes a person's ability to make a specific decision at a specific time.  Capacity may be fluctuating and therefore any assessment of capacity must be regularly updated. 

Professionals and other staff working in safeguarding need to understand and comply with the requirements set out in the Mental Capacity Act.

 

Principles of the Act 

The MCA is underpinned by 5 key principles:

  • A presumption of capacity – An adult has the right to make his or her own decisions and must be assumed to have capacity unless it is proved otherwise.
  • The right for an adult to be supported to make their own decisions – An adult must not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
  • An adult must not be treated as being unable to make a decision merely because s/he makes an unwise or bad decision.
  • Best interests - Anything done for, or on behalf of an adult who lacks capacity must be in that adult’s best interests.
  • Least restrictive intervention - anything done for or on behalf of an adult who lacks capacity should be the least restrictive option.

 

Mental capacity and safeguarding 

The Act deals with the assessment of a person's capacity and acts by carers of those who lack capacity:

  • Assessing lack of capacity: there is single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a ‘decision-specific’ and time specific test.
  • Best interests: an act done or decision made for or on behalf of a person who lacks capacity must be in that person's best interests.
  • Acts in connection with care or treatment:  Section 5 offers statutory protection from liability where a person is performing an act in connection with the care or treatment of someone who lacks capacity. This could cover actions that might otherwise result in criminal prosecution or civil liability if someone has to interfere with the person's body or property in the course of providing care or treatment.
  • Restraint:  Section 6 sets out limitations on section 5. It defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists.  Restraint is only permitted if the person lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm.  This section does not extend to deprivation of liberty within the meaning of Article 5(1) of the ECHR. 

The MCA deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity:

  • Lasting powers of attorney (LPAs) - allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future and allows people to empower an attorney to make health and welfare decisions.
  • Court appointed deputies - provides for a system of Court Appointed Deputies to replace Receivership. Deputies can take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection but they are not able to refuse consent to life sustaining treatment.  Deputies are only appointed if the Court cannot make a one-off decision to resolve the issues. 

The MCA created a new public body and a new official to support the statutory framework:

  • The Court of Protection - has jurisdiction relating to the whole Act, with its own procedures and nominated judges.
  • A Public Guardian, supported by the Office of the Public Guardian (OPG). The Public Guardian and his staff is the registering authority for LPAs and deputies.  They supervise deputies appointed by the Court and provide information to help the Court make decisions.  They will also work with other agencies, such as the police and Social Services, to respond to any concerns raised about the way in which an attorney or deputy is operating.  A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his functions. 

The MCA also includes 3 further key provisions to protect vulnerable people:

  • Independent Mental Capacity Advocate (IMCA) - An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. They have to be involved where decisions are being made about serious medical treatment or a change in the person's accommodation where it is provided, or arranged, by the NHS or a local authority.  The IMCA makes representations about the person's wishes, feelings, beliefs and values, and brings to the attention of the decision-maker all relevant factors to the case.
  • Advance decisions to refuse treatment - there are statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future.
  • Criminal offence - The MCA introduced a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years. 

Guidance on the MCA is provided by virtue of a statutory Code of Practice Guidance.

See: http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpgacop_20050009_en.pdf

Further information can be found on the Public Guardian website.

See: www.publicguardian.gov.uk/ 

Deprivation of Liberty Safeguards 

The MCA Deprivation of Liberty Safeguards (DOLS) provide procedures to authorise the deprivation of liberty of a person in a hospital or a care home who lacks capacity to consent to be there.  The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures. 

Statutory Code of Practice, see:

http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476

 

Identifying Deprivation of Liberty 

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.  Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act, 2005) can be lawfully carried out in someone’s best interest to prevent harm. 

The difference between restriction of movement and deprivation of liberty is based on degree and intensity.  If Managers or Practitioners are in doubt as to whether an adult is being deprived of their liberty, they should seek advice from Legal Services.

 

Test for Deprivation of Liberty 

The Supreme Court in P v Cheshire West and Chester Council;  P&Q v Surrey County Council, March 2014 created an ‘acid test’ to establish when an adult is deprived of their liberty.  A person will be deprived of their liberty in circumstances where:

  • They are under continuous supervision and control; and
  • They are not free to leave; and
  • They lack Capacity to consent to these arrangements; and
  • The care arrangements that result in the DoL are being made by the State. 

The Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include: the person’s compliance or lack of objection; the reason or purpose behind a particular placement; and the extent to which it enables them to live a relatively normal life for someone with their level of disability.

 

Authorising a Deprivation of Liberty 

Schedule A1 of the MCA sets out a procedure by which the deprivation of an adult’s liberty who lacks capacity may be authorised in a care home or hospital. 

In relation to adults in Shared Lifes, supported living or in domestic settings, only the Court of Protection can make an order authorising a deprivation of liberty. 

Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under that Act are met.

 

DOLS and safeguarding

Deprivation of liberty can be in a person’s best interest if it is necessary to protect the person from harm, and is proportionate to the risk of harm.  To be lawful, it needs to be authorised to ensure that the person has access to the safeguards and is appropriately represented throughout the authorisation.

 

Advanced Decisions and Living Wills 

These are statements expressing an adult’s views on how they would, or would not, like to be treated, if they are unable to make a decision themselves, ie. because they have lost capacity. 

Advanced decision  Under ss24-26 Mental Capacity Act 2005, an adult, who has capacity at the time of making the decision, can make an advance decision to refuse treatment in the event that they lose capacity to make that decision at the time.  There are certain safeguards in place under the Act that specify when the decision will be valid in certain circumstances.  For more information see Mental Capacity Act 

If the advance decision is a valid decision, then this should be respected and any treatment given to the adult that is covered by the decision, may incur liability under both civil and criminal law. 

Advanced statement  This is a general statement of an adults wishes or views.  It can reflect personal choices, religious beliefs or any area of their life which they particularly value.  They can also be used to inform agencies on who they would like consulted in the event that a decision has to be made that the adult is incapable of making.  Unlike an Advanced Decision, an Advanced Statement is not legally binding, but should be taken into consideration in any safeguarding plans.

The Mental Health Act 2007 provides

  • A definition of mental disorder A single definition now applies throughout the Act.
  • Criteria for detention An appropriate treatment test, which applies to all the longer-term powers of detention.  As a result, it is not possible for patients to be compulsorily detained, or their detention continued, unless appropriate medical treatment and all other circumstances of the case is available to the patient.
  • Professional roles The group of practitioners who can take on the functions of approved social worker and the responsible medical officer.
  • Nearest relative Patients the right to make an application to the county court to displace their nearest relative and enables county courts to displace a nearest relative who it thinks is not suitable to act as such.
  • Supervised Community Treatment SCT for patients following a period of detention in hospital.
  • Electro-convulsive therapy Safeguards for patients.
  • Independent Mental Health Advocates A duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates.

   

The role of the Criminal Justice System 

The criminal justice system in the UK involves a number of separate bodies who work in partnership to safeguard Adults, in relation to the implementation of legal, judicial and policing processes.  This includes the Crown Prosecution Service (CPS) and Police.

 

Introduction 

The Crown Prosecution Service (CPS) is the principal public prosecuting authority for England and Wales and is headed by the Director of Public Prosecutions.  The CPS has produced a policy on prosecuting crimes against older people which is equally applicable to adults, who may be vulnerable witnesses. 

Support is available within the judicial system for those at risk to enable them to bring cases to court and to give the best evidence.  If an adult has been the victim of abuse which is also a crime, their support needs can be identified by the police, the CPS and/or others who have contact with the Adult.

Witness Care Units exist in all judicial areas and are run jointly by the CPS and the police.  The CPS has a key role to play in making sure that special measures are put in place to support vulnerable or intimidated witnesses. 

Special measures are available in both Crown and Magistrates’ Courts.  They include the use of screens, trained Intermediaries to help with communication and arrangements for evidence and cross- examination to be given by video.

 

Criminal offences and adult safeguarding 

Everyone is entitled to the protection of the law and access to justice.  Behaviour which amounts to abuse and neglect, for example physical or sexual assault or rape, psychological abuse or hate crime, wilful neglect, unlawful imprisonment, theft and fraud and certain forms of discrimination also may be a criminal offence. 

Although we have the lead role in making enquiries, where criminal activity is suspected, then the early involvement of the police is necessary. 

A criminal investigation by the Police will take priority over all other enquiries.  In such cases the Police will lead the investigation, with our support.  However, we have an on-going duty to promote the well-being of the adult in these circumstances.

 

Special Measures 

Special Measures were introduced through the Youth Justice and Criminal Evidence Act 1999 (YJCEA) and include a range of measures to support witnesses to give their best evidence and to help reduce some of the anxiety when attending court.  Consideration of specials measures should occur from the onset of a police investigation.

 

Vulnerable and intimidated witnesses 

Special Measures are available for vulnerable, or intimidated adult witnesses as defined in s16 and 17 of the YJCEA.  See also sections 14.70-14.76 of the Care and Support Statutory Guidance.  Where it is considered that an Adult meets the requirements for Special Measures, this should be discussed with the Police at the earliest opportunity, and so appropriate action can be taken.  

 

Cases involving the Coroner 

There is a legal duty to inform the Coroner of any death that has occurred whilst a person is subject to the Deprivation of Liberty Safeguards.  The responsibility to notify is shared between the supervisory body and the managing authority. 

Note that a person may also be subject to a deprivation of liberty whilst in a domestic setting, such as supported living arrangements, where the State is responsible for imposing such arrangements.  Whilst such situations do not come within the remit of the Deprivation of Liberty Safeguards (they must instead be authorised by the Court of Protection), the same procedure should be followed for informing the Coroner. 

  

Partnership working between adults and children’s services 

The Children Act 1989 provides the legislative framework for agencies to take decisions on behalf of children and to take action to protect them from abuse and neglect. 

Professionals or agencies working with adults have a key role in identifying children who need safeguarding. 

If a professional or agency working with such adults becomes aware that a child is or may be experiencing Abuse or Neglect they have a duty to safeguard and promote the welfare of the child/ren.  In such situations Adults and Children's Services should work jointly. 

Where Protection Procedures may apply, for young people under 18 years of age this would be the Sussex Child Protection Procedures.  For people aged 18 years and above this would be the Sussex Safeguarding Adults Procedures. 

For more information, see Children Act 1989: www.legislation.gov.uk/ukpga/1989/41/contents

Also see: Safeguarding Children's Board Procedures: 
https://sussexchildprotection.procedures.org.uk/page/contents 

 

Safeguarding duties under the Care Act 

The duty to enquire applies when a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinary resident there):

  • has needs for care and support (whether or not the authority is meeting any of those needs),
  • is experiencing, or is at risk of abuse or neglect, and
  • as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it. 

The local authority must make (or cause to be made) whatever enquiries it thinks are necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom. 

The local authority must determine what further action is necessary.  Where the local authority determines that it should itself take further action (eg. a protection plan), then the authority would be under a duty to do so. 

The Care Act requires that each local authority must arrange for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or safeguarding adult review where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them. 

Local authority statutory safeguarding adults duties apply equally to those adults with care and support needs:

  • Regardless of whether those needs are being met.
  • Regardless of whether the adult lacks mental capacity or not.
  • Regardless of setting, other than prisons and approved premises where prison governors and National Offender Management Service (NOMS) respectively have responsibility. 

Where someone is 18 or over but is still receiving children’s services and a safeguarding issue is raised, the matter should be dealt with through safeguarding adults arrangements, so long as the criteria set out above are met. 

The safeguarding duties also have a legal impact for organisations other than the local authority, for example the NHS and the Police. 

Local authorities must cooperate with each of their relevant partners, as described in the Care Act, and those partners must also cooperate with the Local Authority in the exercise of their functions relevant to care and support including those to protect adults. 

The Local authority also has a duty to set up a Safeguarding Adults Board (SAB) responsible for ensuring safeguarding adults work in its local area is effective.

In order to respond appropriately where abuse or neglect may be taking place, anyone in contact with the adult, whether in a voluntary or paid role, must understand their own role and responsibility and have access to practical and legal guidance, advice and support.  This will include understanding local inter-agency policies and procedures.

 

Police and Crown Prosecution Service (CPS) responsibilities with other organisations 

The Police and Crown Prosecution Service (CPS) should agree procedures with the local authority, care providers, housing providers, and the NHS/CCG to cover the following situations:

  • Action pending the outcome of the police and the employer’s investigations.
  • Action following a decision to prosecute an individual.
  • Action following a decision not to prosecute.
  • Action pending trial.
  • Responses to both acquittal and conviction.

 

Safeguarding adults policies and procedures 

In any organisation, there should be safeguarding adults policies and procedures. 

These should reflect this statutory guidance and the decision making tree (see diagram 1B) and are for use locally to support the reduction or removal of safeguarding risks as well as to secure any support to protect the adult and, where necessary, to help the adult recover and develop resilience. 

Such policies and procedures should assist those working with adults to develop swift and personalised safeguarding responses and how to involve adults in this decision making.  This, in turn, should encourage proportionate responses and improve outcomes for the people concerned.

 

Local safeguarding adults procedures that all partner agencies and organisations must have in place 

All agencies and organisations must develop their own local safeguarding adults procedures and protocols that reflect the Sussex Safeguarding Adults Policy and Procedures.  

Procedures must include

  • A statement of purpose relating to promoting wellbeing, preventing harm and responding effectively if concerns are raised.
  • A statement of roles and responsibility, authority and accountability specific enough to ensure that all staff and volunteers understand their role and limitations.
  • A statement of the procedures for dealing with allegations of abuse, including those for dealing with emergencies by ensuring immediate safety, the processes for initially assessing abuse and neglect and deciding when intervention is appropriate, and the arrangements for reporting to the police, urgently when necessary.
  • A full list of points of referral indicating how to access support and advice at all times, whether in normal working hours or outside them, with a comprehensive list of contact addresses and telephone numbers, including relevant national and local voluntary bodies.
  • An indication of how to record allegations of abuse and neglect, any enquiry and all subsequent action.
  • A list of sources of expert advice.
  • Information regarding the provisions of the law – criminal, civil and statutory – relevant to adult safeguarding, including local or agency specific information about obtaining legal advice and access to appropriate remedies.
  • A full description of channels of inter-agency communication and procedures for information sharing and for decision making.
  • A list of all services which might offer access to support or redress.
  • Details of how professional disagreements are resolved, especially with regard to whether decisions should be made or enquiries undertaken. 

Procedures should be updated to incorporate learning from published research, peer reviews, case law and lessons from recent cases and safeguarding adults reviews.

 

Legislation 

Ill treatment and wilful neglect 

The Mental Capacity Act 2005 created the criminal offences of ill-treatment and wilful neglect in respect of people who lack the ability to make decisions.

The offences can be committed by anyone responsible for that adult’s care and support.  This includes:

  • Paid staff.
  • Family carers.
  • People who have the legal authority to act on that adult’s behalf (ie. persons with power of attorney or court-appointed deputies).

 

These offences are punishable by fines or imprisonment. 

Ill treatment covers both deliberate acts of ill treatment and acts which are reckless which results in ill treatment. 

Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform.

 

Abuse by an attorney or deputy  

If someone has concerns about the actions of an attorney acting under a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), or a deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). 

The OPG can investigate the actions of a deputy or attorney and can also refer concerns to other relevant agencies.  When it makes a referral, the OPG will make sure that the relevant agency keeps it informed of any action taken. The OPG can also make an application to the Court of Protection if it needs to take possible action against the deputy or attorney. 

Whilst the OPG primarily investigates financial abuse, it is important to note that that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare Lasting Power of Attorney or a personal welfare deputy. 

The OPG can investigate concerns about an attorney acting under a registered Enduring or Lasting Power of Attorney, regardless of the adult’s capacity to make decisions. 

Further information about the role and powers of the OPG and its policy in relation to safeguarding adults can be found online:

www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/safeguarding-policy.pdf

An adult’s legal right to make their own decisions 

The Mental Capacity Act 2005 sets out in law each person’s rights regarding making their own decisions and protects their rights regarding this in law. 

Where a person is unable to make a specific decision for themselves, the Act sets out a clear process that must be followed before a decision can be made on their behalf. 

People must be assumed to have capacity to make their own decisions and be given all practicable help before anyone treats them as not being able to make their own decisions. 

Where an adult is found to lack capacity to make a decision, any action taken, or decision made for, or on their behalf, must be made in their best interests.

Professionals and other staff need to understand and always work in-line with the Mental Capacity Act 2005.  They should use their professional judgement and balance many competing views. 

Employers should provide considerable guidance and support to ensure that professionals and other staff are able to help adults manage risk in ways and put the adult in control of decision making if possible. 

Regular face-to-face supervision from skilled managers is essential to enable staff to work confidently and competently in difficult and sensitive situations.


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This page is correct as printed on Monday 26th of June 2017 01:57:55 AM please refer back to this website (http://sussexsafeguardingadults.procedures.org.uk) for updates.
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