5.1 Appendices

Type of   adult safeguarding scenario

Consider the following Legal Remedies

Physical Abuse

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 https://www.gov.uk/claim-compensation-criminal-injury/make-claim 

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 or herself 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

Criminal prosecution - Sexual Offences Act 2003, There are specific offences that deal with adults who 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 provide 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 

Psychological Abuse

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

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.

Referral to the Care Quality Commission in circumstances in which a provider is failing to meet the national standards of quality and safety. See: Contact us or report a concern | OLS (cqc.org.uk) 

Self-Neglect

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.

Also see section above on Neglect.

Financial Abuse

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 Lasting Power of Attorney (LPA):

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

·       Health and 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/her 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 interests.

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 Department of Works and Pensions (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 the 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. For fraud, both the police and local authority Trading Standards Service can consider various offences under the Fraud Act 2006.

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 a 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

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

Sections 9-13 Care Act 2014 and associated Regulations - duty to assess. The local authority may be able to help manage some adult safeguarding 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.

Removal of the person thought to be the cause of risk

Consider whether to involve the police.

Family Law Act 1996 - injunctions; non-molestation and occupation orders.   See: www.opsi.gov.uk/acts/acts1996/ukpga_19960027_en_1

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

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

Mental Capacity Act 2005 – s5.

Deprivation of Liberty Safeguards

The Mental Capacity Act Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 1983.

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 individuals 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 Mental Capacity Act.

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

Agency

Legal power and action

Circumstances / further information

Environmental Health

Power of entry / Warrant

(Section 287 Public Health Act)

Gain entry for examination / execution of necessary work required under Public Health Act.   Police attendance required for forced entry.

Non-engagement of person. To gain entry for examination / execution of necessary work (all tenures including leaseholders / freeholders).

Environmental Health

Power of entry / Warrant

(Public Health Act 1936 and 1961)

·    power of entry / warrant to survey / examine (Sections 239 / 240),

·    power of entry / warrant for examination / execution of necessary work (Section 287), and

·    enforcement notices in relation to filthy / verminous premises (Section 83) – applies to all tenures.

Non-engagement of person / entry previously denied. To survey and examine (all tenures including leaseholders / freeholders).

Environmental Health

Public Health (Control of Disease) Act 1984 Section 46 sets out restrictions in order to control the spread of disease, including use of infected premises, articles and actions that can be taken regarding infectious persons.

Environmental Health

Prevention of Damage by Pests Act 1949

Local authorities have a duty to take action against occupiers of premises where there is evidence of rats or mice.

Environmental Health

Enforcement Notice (Section 83 Public Health Act 1936)

Filthy or unwholesome condition of premises (articles requiring cleansing or destruction). Prevention of injury or danger to person served.

(All tenures including leaseholders / freeholders / empty properties).

Environmental Health

Litter Clearing Notice

(Section 92a Environmental Protection Act 1990)

Environmental Health to make an assessment to see if this option is the most suitable.

Where land open to air is defaced by refuse which is detrimental to the amenity of the locality. An example would be where hoarding has spilled over into a garden area.

Environmental Health

Environmental Protection Act 1990 Abatement

Abatement notice where any premise is in such a state as to be prejudicial to health or a nuisance (Sections 79 / 80).

Fire and Rescue

Regulatory Reform (Fire Safety) Order 2005

The fire brigade can serve a prohibition or restriction notice to an occupier or owner which will take immediate effect. This can apply to single private dwellings where the criteria of risk to relevant persons apply.

Police

Power of Entry (Section 17 Police and Criminal Evidence Act)

Person inside the property is not responding to outside contact and there is evidence of danger.

Information that someone inside the premises was ill or injured and the police would need to gain entry.

Housing

Anti-Social Behaviour, Crime and Policing Act 2014

A civil injunction can be obtained from the County Court if the court is satisfied that the person against whom the injunction is sought has engaged or threatens to engage in anti-social behaviour, or if the court considers it just and convenient to grant the injunction for the purpose of preventing the person from engaging in anti-social behaviour.

Conduct by the tenant which is capable of causing housing-related nuisance or annoyance to any person. ‘Housing-related’ means directly or indirectly relating to the housing management functions of a housing provider or a local authority.

Housing

Housing Act 2004

This allows enforcement action where either a category 1 or category 2 hazard exists in any building or land posing a risk of harm to the health or safety of any actual or potential occupier or any dwelling or house in multiple occupation (HMO). These powers range from serving an improvement notice, taking emergency remedial action, to the making of a demolition order.

The courses of action available to authorities as regards either category of hazard are:

1.  Serve an Improvement Notice requiring remedial works.

2.  Make a Prohibition Order to close the whole or part of a dwelling or to restrict the number of permitted occupants.

3.  Take emergency action.

4.  Serve a Hazard Awareness Notice.

5.  Make a Demolition Order.

6.  Declare a Clearance Area.

Housing

Housing Act 1985 and Housing Act 1988

In extreme cases, a landlord can take action for possession of the property for breach of a person’s tenancy agreement, where a tenant fails to comply with the obligation to maintain the property and its environment to a reasonable standard. This would either be under Ground 1, Schedule 2 of the Housing Act 1985 (secure tenancies) or Ground 12, Schedule 2 of the Housing Act 1988 (assured tenancies).

The tenant is responsible for the behaviour of everyone who is authorised to enter the property.

Town and Country Planning

Town and Country Planning Acts provide the power to seek orders for repairs to privately owned dwellings and where necessary compulsory purchase orders.

Animal welfare agencies such as RSPCA or local authority agencies such as Environmental Health / DEFRA

Animal Welfare Act 2006

Offences (improvement notice)

Education for owner a preferred initial step. Improvement notice issued and monitored.  If not complied with, can lead to a fine or imprisonment.

Cases of animal mistreatment / neglect. The Act makes it not only against the law to be cruel to an animal, but that a person must ensure that the welfare needs of the animals are met.

See also: http://www.defra.gov.uk/wildlife‐pets/.

Mental Health Service

Mental Health Act 1983, Section 135(1)

Provides for a police officer to enter a private premises, if need be by force, to search for and, if thought fit, remove a person to a place of safety if certain criteria are met. The police officer must be accompanied by an Approved Mental Health Professional (AMHP) and a doctor. 

NB A place of safety is usually the mental health unit, but can be the Emergency Department of a general hospital, or anywhere willing to act as such.

Evidence must be laid before a magistrate by an AMHP that there is reasonable cause to believe that a person is suffering from mental disorder, and is being:

·    ill-treated,

·    neglected,

·    kept other than under proper control, or

·    if living alone is unable to care for self, and that the action is a proportionate response to the risks involved.

NB Section 135 lasts 72 hours and is for the purpose of removing a person to a place of safety with a view to the making of an assessment regarding whether or not Section 2 or 3, or 7 of the Mental Health Act should be applied.

Mental Health Service

Mental Health Act 1983, Section 2 and 3

Where a person has a mental disorder (as defined under the Act) of such a degree, and it is considered necessary for the patient’s health and safety or for the protection of others, they may be compulsorily admitted to hospital and detained there under Section 2 for assessment for 28 days. Section 3 enables such a patient to be compulsorily admitted for treatment for up to 6 months, this can then be renewed for a further 6 months and then yearly if necessary.

There must be two recommendations from s12 approved registered medical practitioners. The AMHP makes the application if it is considered appropriate and the less restrictive option.

Mental Health Service

Mental Health Act 1983, Section 7

A Guardianship Order may be applied for where a person suffers from a mental disorder, the nature or degree of which warrants their reception into

Guardianship (and it is necessary in the interests of the welfare of the patient or for the protection of other persons). The person named as the Guardian may be either a local social services authority or any applicant. 

A Guardianship Order confers upon the named Guardian the power to require the patient to reside at a place specified by them; the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; and the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

There is a requirement that any application is made upon the recommendations of two registered medical practitioners.

Mental Health Service

Mental Health Act 1983, Section 136

Section 136 allows police officers to remove adults who appear to be “suffering from mental disorder and in immediate need of care and control” from a public place to a place of safety for up to 24 hours and extended for no longer than a further 12 hours for specified purposes.  The place of safety could be a police station or hospital.

All

Mental Capacity Act 2005

A decision can be made as to whether a person lacks the mental capacity to make specific decisions. If a person lacks capacity regarding a specific decision, any decision made must be in the person’s best interests.  It is important to follow the empowering principles of the Act and ensure that any actions taken are the less restrictive option available.

A person who lacks capacity to make decisions about their care needs, and they are refusing support and at high risk of serious harm to self as a result.

Local authority

Building Act 1984 Section 76 is available to deal with any premises which are in such a state as to be prejudicial to health. It provides an expedited procedure ie. the local authority may undertake works after 9 days unless the owner or occupier states an intention to undertake the works within 7 days.

There is no right of appeal and no penalty for non-compliance.

Mental Health Service

Community Treatment Orders (CTOs)

If a person has been in hospital under Section 3 or other treatment order of the Mental Health Act, a responsible clinician (usually a psychiatrist) can arrange for a person to have a Community Treatment Order (CTO). This means the person will have supervised treatment when they leave hospital.  The person will need to follow the conditions of a CTO.  The conditions aim to make sure the person gets the appropriate treatment and can also be used to try to protect the person from harming themselves or other people.  Conditions can include where the person will live or where they will go to get treatment.  A person can be brought back to hospital if they breach the conditions of their CTO.

Terminology

Definition

Safeguarding concern

 A ‘safeguarding concern’ is when any person has reasonable cause to suspect that an adult with care and support needs, who is unable to protect themselves because of those needs, is experiencing, or is at risk of abuse or neglect.

Three key tests in the Care Act

Three key tests relate to adults covered by these safeguarding procedures.

The safeguarding duties apply to an adult who:

·         has needs for care and support (whether or not the local authority is meeting any of those needs) and

·         is experiencing, or is at risk of, abuse or neglect, and

·         as a result of those care and support needs is unable to protect themselves from the risk or experience of abuse or neglect.

Once the local authority has reasonable cause to believe an adult meets these tests the Section 42 duty is triggered.  The  local authority may still decide to undertake an enquiry where the three tests in the Care Act are not met

NB Carers are also covered by the procedures where they meet the three tests set out above.

Safeguarding enquiry

The action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place.  An enquiry can range from a conversation with the adult to a more formal multi-agency plan or course of action.

A safeguarding enquiry starts when the initial information gathering has established that all 3 of the Section 42 criteria are met, or where the criteria are not met the decision has been made that it is necessary and proportionate to respond as a safeguarding enquiry (Other safeguarding enquiry).

Section 42 enquiry

Those enquiries where the adult meets ALL of the Section 42 criteria i.e the 3 key tests.

The local authority must make or cause other agencies or organisations to make enquiries when the Section 42 duty is triggered.

Other Safeguarding Enquiry

Enquiries where an adult does not meet all of the Section 42 criteria but the local authority has the power under the Care Act to undertake an enquiry where it considers it necessary and proportionate to do so.

Lead Enquiry Officer (LEO)

A suitably trained and experienced practitioner employed by the local authority who has responsibility for co-ordinating responses and decision making in respect of a safeguarding enquiry.

Safeguarding Adults Review (SAR)

Safeguarding Adults Boards must arrange a SAR when an adult in its area dies as a result of, or has experienced serious abuse or neglect (known or suspected) and there is concern that partner agencies could have worked more effectively together. The aim of the SAR is to identify and implement learning from this.

Making Safeguarding Personal

(MSP)

A ‘Making Safeguarding Personal’ approach means safeguarding responses should be person led and outcome focused. The person should be engaged in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, well-being and safety. (See MSP Practice Guidance and Toolkit).