Care Act 2014: the new legal framework for adult safeguarding Tim Spencer-Lane PASUK BSAB seminar – 15 May 2014

Public law framework Social care and NHS legislation Common law and public law obligations No Secrets guidance Mental health and incapacity legislation Public health law

 Regulation of health and social care professionals  Disclosure and barring service  Care Quality Commission and the regulation of care provision  Whistle-blowing  Criminal offences and civil torts  anti-social behaviour civil injunctions Other safeguarding law

Care Bill

Clause 1: Duty to promote individual well-being 1. physical and mental health, emotional well-being and personal dignity2. protection from abuse and neglect3. control over day-to-day life (including over care and support) 4. participation in work, education, training or recreation5. social and economic well-being6. domestic, family and personal relationships 7. Suitability of living accommodation 8. the individual’s contribution to society

Clause 1: well-being decision-making Individual well- being Assumption that the person is the best judge of their well-being The person’s views, wishes and feelings Have regard to all the adult’s circumstances Full participation in decision making Balance with well-being of carers Protect from abuse and neglect Minimum restrictions

2. The process for assessment Clauses 9-13: assessment and eligibility  Duty to assess where adult appears to need care and support  Right to refuse an assessment  New national Assessment regulations set at “substantial”

The local authority must make enquires it considers necessary (or cause enquiries to be made) care and support needs abuse or neglect unable to safeguard themselves Clause 42: safeguarding enquiries

 having money or other property stolen  being defrauded  being put under pressure in relation to money or other property  having money or other property misused Clause 42(3): financial abuse

 Duty on local authority to establish an SAB  Objective is to help and protect adults at risk of abuse or neglect  SAB may do anything necessary or desirable to achieve this aim  NHS and police must nominate members with required skills and experience  Statutory safeguarding adults reviews (clause 44)  Duty to provide information to an SAB (clause 45) Clause 43 and schedule 2: Safeguarding Adult Boards

Adult Social Care Project No new power of entry to speak to a person at risk of abuse and neglect Repeal of section 47 of the National Assistance Act 1948 Safeguarding powers

Extended Human Rights Act protection Rights to advocacy Cap on care costs and duty to provide personal budgets New rights to carer’s assessments and services A new appeals process against local authority decisions Duties to co-operate and promote integration Duty to prevent needs for care and support Care and support in prisons Other reforms

New No Secrets guidance Increased use of the High Court to safeguard adults? Draft Regulation of Health and Social Care Professionals etc Bill 2014 Increased divergence between the UK countries on adult safeguarding Future developments

My contact details: Websitewww.lawcommission.justice.gov.uk