THE LAW & SAFEGUARDING ADULTS

Introduction Safeguarding- the law? Overview legal framework Focus on: Duty of care issues Mental Capacity Act 2005 (MCA) & DoLs (2009) Mental Health Act (MHA) interventions Confidentiality & information sharing issues Some practical points

Safeguarding –The Law? What do we mean legally by safeguarding? No real cohesive legal framework Practical difficulties

Overview Legal Framework Essentially policy led- ‘No Secrets’ DoH 2000 ‘In the absence of explicit, comprehensive legislation on adult protection, DoH guidance instead defines vulnerable adults, characterises different forms of abuse and sets out a framework..’ (Mandelstam, ‘Safeguarding Adults and the law’) What is a ‘vulnerable adult’? A person ‘who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or maybe unable to take care of him-or herself, or unable to protect him-or herself against significant harm or exploitation’ (DoH 2000)

Overview Legal Framework The law underpinning this comes from a variety of sources and ‘legal areas’ Laws creating powers & duties on public bodies to provide services & for inspection & regulation Powers & duties to provide care or treatment or deal with the finances of those who lack capacity or who are mentally disordered Powers of intervention or prevention Offences- criminal, civil & specific relevant offences Information sharing Rights based legislation

Overview Legal Framework Laws creating powers & duties on public bodies & inspection & regulation Community care law – which sets out Local Authorities’ powers & duties in respect of provision of community services Includes a range of residential & non residential services and duties & powers in relation to informal carers Influences the guidance definition of vulnerable adult (s.47 NHS & Community Care Act 1990)

Overview Legal Framework Laws creating powers & duties on public bodies & inspection & regulation NHS law Includes the general duties under the NHS Act 2006 to provide medical & related services Regulation & inspection of health & social care professionals & related provisions Safeguarding issues could arise from the failure to provide appropriate, timely services to a vulnerable adult

Overview Legal Framework Powers & duties to provide care or treatment or deal with the finances of those who lack capacity or who are mentally disordered MCA MHA Courts’ Inherent Jurisdiction In safeguarding context these provide the key legal framework for the provision of care/treatment to vulnerable adults. Understanding of these may be crucial in understanding the duties/ powers to care/treat

Overview Legal Framework Powers of intervention or prevention National Assistance Act Environmental & public health Police entry powers Injunctions & orders In a safeguarding context these may provide legal powers in specific circumstances to intervene/protect

Overview Legal Framework Offences- criminal, civil & specific relevant offences Criminal law Assault, murder, manslaughter, sexual offences, financial offences Civil ‘wrongs’ Negligence, assault, battery, false imprisonment Specific offences from the MCA & MHA Specific offences/ civil wrongs may have been committed which give rise to potential legal consequences for the perpetrator

Overview Legal Framework Information sharing Range of statutory & common law provisions, supplemented by policies and information sharing protocols Frequently the appropriate sharing of information will be crucial in the safeguarding context- though the complex legal provisions may be seen to obstruct this. The inappropriate sharing of information may also be an issue.

Overview Legal Framework Rights based legislation Human Rights Act European Convention Key Rights are relevant in the safeguarding context and may create additional duties

Duties & Responsibilities The duties & responsibilities owed to vulnerable adults by the local authorities as: Provision of services under community care law and specific relevant statutory provisions Responsibility for safeguarding from abuse & neglect arising from policy & the No Secrets guidance A common law duty to investigate where welfare of a vulnerable adult is seriously threatened Where the adult lacks capacity where necessary in best interests

Duties & Responsibilities In terms of duties & responsibilities whether vulnerable adult has capacity may well be decisive in terms of what steps can/should legally be taken in terms of safeguarding

Human Rights Human Rights Act Brings into effect key Articles of the European Convention Relevant Articles Article 2- Right to life Article 3- Prohibition against inhumane, degrading treatment & torture Article 5- Right to liberty Article 8- Right to respect for private & family life, home & correspondence Positive & negative duties

Capacity & Duty Of Care The question of capacity may well be crucial in determining when there may be a power & duty to intervene & provide care & treatment or protection of finances Relevant provisions are set out in the MCA which provides a ‘legal backdrop’ to the law & safeguarding

MCA Any act in connection with care and treatment The Principles Must be taken in accordance with the key principles…… The Principles Presumption of capacity All practicable steps taken to assist ‘Allowed’ to make unwise decisions All acts (on behalf of person lacking capacity) must be in best interests ‘Regard’ to least restrictive option

Capacity Otherwise Additional ‘tests’ of capacity for: Wills Sex Marriage Safeguarding issues may arise in the context of e.g. arranged marriage for someone who lacks capacity, where someone who lacks capacity is in a sexual relationship

Mental Disorder Relevant provisions: Specific rights of access & entry Specific criminal offences

MHA or MCA? MCA MHA Only where X is old enough & lacks capacity Care & treatment in X’s best interests only Restraint only where necessary to protect P and no DoL w/o further authorisation MHA Without age limit generally Only where X is mentally disordered, not capacity based Only authorises compulsory treatment for MD Provides for detention in hospital

Information Sharing Overview of obligations of confidentiality Common law Data Protection Act 1998 Human Rights Act 1998 Professional Duties NHS/DoH/ICO Guidance Caldicott

Information Sharing Common Law Duty of Confidence Exceptions to the duty of confidence If the information is already in the public domain Express/implied consent Compliance with statutory obligations Overriding power of the Court Public interest disclosure

Information Sharing Human Rights Act 1998 Article 8: Right to respect for private and family life, home and correspondence Qualifiable right where qualification is: Proportionate In accordance with a procedure prescribed by law Necessary in a democratic society

Information Sharing The Risks of Failing to Share Deaths / serious injuries Victoria Climbie Baby P Negligence claims Complaints Inquests Public Inquiries

Information Sharing The DoH View… “Our reluctance to share information because of fear or uncertainty – about the law or the lack of suitable arrangements to do so – has been a feature of some public services in recent years and a factor in numerous accounts of untoward incidents, including homicides. A natural reaction to uncertainty is to take what appears to be the least risky option and, for information sharing, that can often mean doing nothing – and that may be the worst outcome for the individual and the public” Information Sharing and Mental Health: Guidance to Support Information Sharing by Mental Health Services (2009) – Page 3.

Some Practical Issues Robust & effective policies & procedures Good record keeping is essential Importance of recording decisions and full reasons including information/ assumptions decision based upon, factors for and against Risk of information not being appropriately shared/recorded Risk of focus on ‘safeguarding’ losing sight of the bigger picture Risk of not recognising roles & responsibilities

Summary ‘In contrast to child care law, adult social care…has developed piecemeal…it remains a confusing patchwork of conflicting statutes…it is characterised by the sheer volume of legislation with much overlap & duplication. It is noted for its ‘baffling and tortuous complexity ..’