3.1 Legislation, National Guidance and Toolkits
- 3.1.1 Introduction
- 3.1.2 The Care Act 2014
- 3.1.3 Child Sexual Exploitation
- 3.1.4 Corporate Manslaughter
- 3.1.5 Coroner's Services and Investigations
- 3.1.6 Criminal Justice and Courts Act 2015
- 3.1.7 Disclosure and Barring Service (DBS)
- 3.1.8 Domestic Violence and Abuse
- 3.1.9 Female Genital Mutilation
- 3.1.10 Forced Marriage
- 3.1.11 Gaining Access to an Adult at Risk
- 3.1.12 Health and Social Care Act 2008
- 3.1.13 Human Rights Act 1998
- 3.1.14 Inter-Authority Safeguarding Arrangements
- 3.1.15 LeDeR programme
- 3.1.16 Making Safeguarding Personal
- 3.1.17 Multi-Agency Public Protection Arrangements (MAPPA)
- 3.1.18 Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009
- 3.1.19 Modern Slavery Act 2015
- 3.1.20 NHS Accountability and Assurance Framework
- 3.1.21 Office of the Public Guardian Safeguarding Policy
- 3.1.22 Pressure Ulcer Safeguarding Adults Protocol
- 3.1.23 Prevent
- 3.1.24 Prevention in Adult Safeguarding
- 3.1.25 Roles and Responsibilities in Health and Care Services
This section of the policy and procedures sets out key areas of national policies and guidance in relation to relevant legislation and good practice in adult safeguarding. A summary is provided for each document together with a link to the relevant web-page.
3.1.2 The Care Act 2014
The Care Act Sections 42 – 47
Click here for Sections 42 to 47 of the Care Act, which sets out the legal duties and responsibilities in relation to adult safeguarding.
Care and Support Statutory Guidance (Department of Health and Social Care, 2018)
The legal framework for the Care Act 2014 is supported by the Care and Support Statutory Guidance, which provides information about how the Care Act works in practice. The guidance has statutory status which means that there is a legal duty to have regard to it when working with adults with needs for care and support, and carers.
3.1.3 Child Sexual Exploitation
Child Sexual Exploitation
This non-statutory advice has been produced to help practitioners who work with children and families to identify child sexual exploitation (CSE) and take appropriate action in response. This advice replaces the 2009 guidance 'Safeguarding Children and Young People from Sexual Exploitation'.
3.1.4 Corporate Manslaughter
Corporate Manslaughter (Crown Prosecution Service)
Companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care under the Corporate Manslaughter and Corporate Homicide Act 2007. The Crown Prosecution Service has produced this guidance which sets out the general principles which apply in respect of this legislation.
3.1.5 Coroner's Services and Investigations
Coroner’s Services and Investigations (Ministry of Justice, 2014)
This guide provides a summary of the role of the coroner and offers guidance to anyone who may be involved in a coroner’s investigation or attends a coroner’s inquest.
3.1.6 Criminal Justice and Courts Act 2015
Criminal Justice and Courts Act 2015
Under the Criminal Justice and Courts Act 2015 it is an offence for an individual or a care provider who has the care of another individual to ill-treat or wilfully to neglect that individual.
The offence focuses on the conduct of the individual, not the outcome. It is to do with what the worker actually did (or failed to do) to the individual, rather than any harm that resulted.
For organisations the offence focuses on the way their activities are managed and organised, and whether an incident amounts to a gross breach of a relevant duty of care owed to the patient.
3.1.7 Disclosure and Barring Service (DBS)
Disclosure and Barring Service (Home Office, 2018)
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).
The DBS has issued Guidance for Local Authorities and regulatory bodies about the duty and power to refer a person to DBS and this guidance is available here.
3.1.8 Domestic Violence and Abuse
Adult Safeguarding and Domestic Abuse: A Guide to Support Practitioners and Managers (Local Government Association and ADASS, 2015)
The ADASS Adult Safeguarding and Domestic Abuse Guide sets out the overlap between safeguarding and domestic abuse and the approaches and legal frameworks for domestic abuse that can be used in the safeguarding context.
Coercive Control (Research in Practice for Adults)
The Coercive Control website is for social workers and other health and social care practitioners to develop their knowledge and skills in working in situations of coercive control.
SafeLives is a National Charity dedicated to ending domestic abuse, and contains information about the UK’s response to domestic abuse. The site includes information for professionals on resources including MARAC and the IDVA service.
3.1.9 Female Genital Mutilation
Multi-Agency Statutory Guidance on Female Genital Mutilation (HM Government, 2016)
This document contains multi-agency guidelines on Female Genital Mutilation (FGM) for those with statutory duties to safeguard children and vulnerable adults.
3.1.10 Forced Marriage
Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage (HM Government, 2014)
This guidance sets out the responsibilities of agencies involved in handling cases of forced marriage. It provides advice and support to front line practitioners who have responsibilities to safeguard children and protect adults from the abuses associated with forced marriage.
3.1.11 Gaining Access to an Adult at Risk
Gaining Access to an Adult Suspected to be at Risk of Neglect or Abuse: a Guide for Social Workers and their Managers in England (Social Care Institute of Excellence, 2014)
This guide has been created to provide information on legal options for gaining access to people who are suspected to be experiencing or at risk of abuse or neglect, but access to them is restricted or denied.
3.1.12 Health and Social Care Act 2008
Health and Social Care Act 2008
The Health and Social Care Act 2008 seeks to enhance professional regulation by creating an integrated regulator for health and social care, the Care Quality Commission, with a focus on providing assurance about the safety and quality of care for patients and service users.
3.1.13 Human Rights Act 1998
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.
3.1.14 Inter-Authority Safeguarding Arrangements
ADASS Inter-Authority Safeguarding Arrangements (ADASS, 2016)
This guidance sets out the policy for responding to safeguarding concerns which involve cross-boundary considerations. The guidance clarifies actions to be taken when the funding / commissioning responsibility for an adult lies with an authority in one area and where concerns about potential abuse or neglect arise in another area.
3.1.15 LeDeR programme
The Learning Disabilities Mortality Review (LeDeR) Programme is a project and is the first comprehensive, national review set up in order to understand why people with learning disabilities typically die much earlier than average, and to inform a strategy to reduce this inequality. The LeDeR programme has been established to support local areas to review deaths of people with learning disabilities, and to use the lessons learned to make improvements to service provision. All deaths of people with a learning disability, aged 4 years and over, will need to have an initial review, regardless of whether the death was expected or not, the cause of death or the place of death.
Click on this link for further information on the LeDeR programme or contact your Clinical Commissioning Group Safeguarding Team and/or Local Area Contact for LeDeR.
3.1.16 Making Safeguarding Personal
Making Safeguarding Personal Guide (Local Government Association, 2014)
The Making Safeguarding Personal Guide is intended to support councils and their partners to develop outcomes-focused, person-centred safeguarding practice. It provides guidance about how to embark upon and take forward a Making Safeguarding Personal approach.
Making Safeguarding Personal: A Toolkit for Responses (Local Government Association, 2015)
The Making Safeguarding Personal Toolkit sets out a range of models, theories and approaches which can be used as a practitioner guide for good practice in adopting a Making Safeguarding Personal approach.
3.1.17 Multi-Agency Public Protection Arrangements (MAPPA)
MAPPA Guidance (Ministry of Justice, National Offenders Management Service, HM Prison Service, 2012)
Multi-agency protection arrangements are in place to ensure the successful management of violent and sexual offenders. This guidance sets out the responsibilities of the police, probation trusts and prison service. It also covers how other agencies may become involved, for example in the care of young offenders.
3.1.18 Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009
Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007)
The legal framework provided by the Mental Capacity Act 2005 is supported by this Code of Practice, which provides guidance and information about how the Act works in practice. The Code of Practice has a statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves.
Mental Capacity Act 2005 Section 44
Section 44 of the Mental Capacity Act 2005 created the criminal offences of ill-treatment and wilful neglect, and these 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 (i.e. persons with power of attorney or court-appointed deputies).
Deprivation of Liberty Safeguards Code of Practice (Ministry of Justice, 2008)
The Deprivation of Liberty Safeguards Code of Practice helps explain how to identify when a person is, or is at risk of, being deprived of their liberty and how a deprivation of liberty may be avoided. It also explains the safeguards that have been put in place to ensure that deprivation of liberty, where it does occur, has a lawful basis.
Department of Health Guidance: Response to Supreme Court Judgement / Deprivation of Liberty Safeguards (Department of Health, 2015)
This advice note offers guidance in response to the Supreme Court judgement in relation to the case of Cheshire West and clarifies the acid test in determining what constitutes a deprivation of liberty.
Coroner’s Services and Investigations (Ministry of Justice, 2014)
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.
Coroners no longer have a duty to undertake an inquest into the death of every person who was subject to an authorisation under the Deprivation of Liberty Safeguards (known as DoLS) under the Mental Capacity Act 2005.
Any person with any concerns about how or why someone has come to their death can contact the coroner directly. This will not change where a person subject to a DoLS authorisation.
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.
3.1.19 Modern Slavery Act 2015
The Modern Slavery Act 2015
The Modern Slavery Act categorises offences of Slavery, Servitude and Forced or Compulsory Labour and Human Trafficking. It is estimated that there were between 10,000 and 13,000 potential victims of modern slavery in the UK in 2013 (Modern Slavery Strategy, HM Government, 2014). Practice guidance relating to the national strategy to respond to Modern Slavery and human trafficking includes details of the Duty to Notify and how to refer victims into the National Referral Mechanism.
Duty to notify the Home Office of suspected victims of modern slavery
Specified public authorities, which includes the police and local authorities, are required to notify the Home Office about any potential victims of modern slavery they encounter in England and Wales.
However, if the potential victim does not want to be referred to the National Referral Mechanism , then an MS1 form should be completed and sent to firstname.lastname@example.org. The MS1 form can be anonymous. The MS1 form and guidance is available.
3.1.20 NHS Accountability and Assurance Framework
NHS Accountability and Assurance Framework (Department of Health, 2015)
This document sets out the safeguarding roles, duties and responsibilities of all organisations in the NHS.
3.1.21 Office of the Public Guardian Safeguarding Policy
Office of the Public Guardian Safeguarding Policy (Office of the Public Guardian, 2015)
The Office of the Public Guardian (OPG) can investigate concerns about 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. This policy outlines the role and powers of the OPG in relation to safeguarding adults.
3.1.22 Pressure Ulcer Safeguarding Adults Protocol
Safeguarding Adults Protocol – Pressure Ulcers and the interface with Safeguarding Enquiries (Department of Health and Social Care, 2018)
This guidance aims to assist practitioners and managers across health and social care services to provide appropriate responses to individuals who are at risk of developing pressure ulcers. Where pressure ulcers do occur the guidance offers a clear process for the clinical management of reducing the risk of harm whilst considering if a safeguarding response under Section 42 of the Care Act is necessary.
Revised Prevent Duty Guidance for England and Wales (HM Government, 2016)
The Prevent Strategy is part of the government’s response to counter-terrorism. Its aim is to reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism. Prevent offers guidance to authorities on the duty in the Counter Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism.
3.1.24 Prevention in Adult Safeguarding
Prevention in Adult Safeguarding (Social Care Institute of Excellence, 2011)
This report shares findings from research, policy and practice on prevention in adult safeguarding and presents a wide range of approaches that can help prevent abuse and neglect.
3.1.25 Roles and Responsibilities in Health and Care Services
Safeguarding: Roles and Responsibilities in Health and Care Services (Department of Health, Local Government Association, ADASS, Association of Chief Police Officers, 2013)
This guidance provides clarity around the roles and responsibilities of the key agencies involved in adult safeguarding. The aim is to ensure that the right things are done by the right people at the right time, working within the own agency and with partners.