THE LAW AND SAFEGUARDING - AN OVERVIEW NOTTINGHAMSHIRE COUNTY COUNCIL 2015 ANDREI SZERARD

THE BASICS ◦ HUMAN RIGHTS ◦THE CARE ACT 2014 ◦ CRIMINAL LAW ◦ CIVIL LAW ◦ MENTAL HEALTH

HUMAN RIGHTS ◦ THE HUMAN RIGHTS ACT 1998 ◦ Relevance to safeguarding issues ◦ Article 3 – Right not to be subject to torture, inhuman or degrading treatment ◦ Article 5 – Right to liberty and security ◦ Article 8 – Right to respect for private and family life ◦ “Derogations”

HUMAN RIGHTS ◦How it works… ◦ Who can use the Human Rights Act? ◦ Declarations of incompatibility ◦The ECHR ◦The future…?

THE CARE ACT 2014 ◦OVERVIEW ◦GUIDING ETHOS ◦BASIC PRINCIPLES ◦THE HOLISTIC APPROACH

SAFEGUARDING AND THE CARE ACT 2014 ◦SAFEGUARDING IN PRIMARY LEGISLATION – FOR THE FIRST TIME ◦THE RELEVANT 6 SECTIONS OF THE ACT ◦TAKEN IN ORDER…

THE SECTIONS ◦s42 – The duty to enquire (NO eligibility requirement) ◦s43 – Safeguarding Adults Boards (SAB) ◦s44 – Safeguarding Adults Reviews (SAR) ◦s45 – Supply of information to the SAB ◦s46 – Abolition of the power to remove ◦s47 – Protecting property of adults being cared for away from home

THE GUIDANCE – AND SOME DEFINTIONS Safeguarding: “…protecting an adult’s right to live in safety, free from abuse and neglect” “People have complex lives and being safe is only one of the things they want for themselves” “Professionals… should not be advocating ‘safety’ measures that do not take account of individual well being…”

MORE DEFINITIONS… ABUSE: ◦ PHYSICAL ◦DOMESTIC VIOLENCE ◦SEXUAL ABUSE ◦PSYCHOLOGICAL ABUSE ◦FINANCIAL ABUSE

…AND MORE DEFNITIONS ◦ MODERN SLAVERY ◦DISCRIMINATORY ABUSE ◦ORGANISATIONAL ABUSE ◦NEGLECT AND ACTS OF OMISSION ◦SELF NEGLECT

THE 6 KEY PRINCIPLES UNDERPINNING SAFEGUARDING WORK ◦EMPOWERMENT – People making their own decisions and informed consent ◦PREVENTION – Taking action before a crisis develops ◦PROPORTIONALITY – The least intrusive appropriate response to risk ◦PROTECTION – Support and representation for those in need ◦PARTNERSHIP – Working with the community and other professional services ◦ACCOUNTABILITY – Clarity and understanding of rights and responsibilities

ENQUIRIES – BASIC PRINCIPLES ◦ Local Authority duty whenever abuse or neglect are suspected ◦ Scope, nature and leading role in any enquiry all depend upon circumstances ◦ Enquiry would usually start with views / wishes of the adult ◦ All involved must work together to improve the adult’s well being ◦ At earliest stage – consideration of whether the adult needs an independent advocate ◦ MASH

ENQUIRIES - OBJECTIVES ◦ Establish facts ◦ Ascertain adult’s views ◦ Assess needs of the adult for protection, support and redress and how they might be achieved ◦ Protect from abuse and neglect in accordance with the wishes of the adult ◦ Follow up action re: person / organisation responsible for the abuse / neglect ◦ Resolution and recovery

ENQUIRIES - CONSENT ◦Presumption of capacity ◦Wherever practicable – seek consent before action ◦ Refusal of consent by competent adult ◦ Risk of harm to third parties ◦ Criminal offences

ENQUIRIES - ASSESSMENT ◦Adult’s need for care and support ◦ Risk of abuse / neglect ◦ Adult’s ability to self protect ◦Impact on the adult – and their wishes ◦ Impact on important relationships ◦ “Justified” and “Proportionate”

INTERACTION WITH THE MENTAL CAPACITY ACT 2005 ◦Presumption of capacity ◦ Lack of capacity ◦ Best interests ◦ Best practice – involvement of skilled managers / face-to-face supervision ◦ Abuse by attorney or deputy

CRIMINAL LAW ◦ How the system works ◦ The Police ◦ The investigation ◦ The CPS ◦ The decision to prosecute

CRIMINAL LAW ◦ What happens in court ◦ Protecting vulnerable witnesses OR suspects ◦ Magistrates and Crown Court ◦ Burden of Proof ◦ The Standard of Proof

COMMON CRIMINAL OFFENCES AGAINST VULNERABLE ADULTS ◦OFFENCES OF PHYSICAL (OR PSYCHOLOGICAL) VIOLENCE ◦ Assault – common assault to murder ◦ Causing or allowing the death or a vulnerable adult ◦ Sexual abuse – including rape ◦ “Hate” crime ◦ False imprisonment ◦ Ill treatment and wilful neglect ◦ Harassment

COMMON CRIMINAL OFFENCES AGAINST VULNERABLE ADULTS - CONTINUED ◦OFFENCES INVOLVING FINANCIAL ABUSE / BREACH OF TRUST ◦Theft ◦Fraud ◦False accounting ◦Forgery ◦Robbery

SAFEGUARDING AND CIVIL LAW ◦ What is “civil” law? ◦ Interaction with criminal law ◦ The key differences ◦ Who brings the cases? ◦ How courts decide ◦The standard of proof

COMMON CASES IN THE CIVIL LAW ARENA INVOLVING VULNERABLE ADULTS FINANCIAL ABUSE ◦ Undue Influence ◦ “Gifts” ◦ Wills ◦Capacity and consent issues

CIVIL LAW CONTINUED PROTECTION AGAINST PHYSICAL HARM / HARASSMENT ◦ Non-molestation orders ◦ Occupation orders ◦ Harassment ◦ Emergency applications

MENTAL HEALTH AND SAFEGUARDING MENTAL HEALTH ACT 1983 ◦ Compulsory admission to hospital ◦ Clinical assessment ◦ Criminal Court ◦ Supervised Community Treatment ◦ Consent issues ◦ Tribunals

MENTAL HEALTH AND SAFEGUARDING MENTAL CAPACITY ACT 2005 ◦ The Court of Protection ◦ Definition of capacity ◦ Best interests ◦ Deprivation of liberty ◦ DoLS

MENTAL HEALTH AND SAFEGUARDING MENTAL CAPACITY ACT 2005 (contd.) ◦ Lasting Powers of Attorney ◦ Deputies ◦ Abuse of power ◦ The Office of the Public Guardian

COMPLAINTS The Local Government Ombudsman ◦ Role and function ◦ Powers ◦ Relevance to safeguarding ◦ Investigations ◦ Some recent decisions…

COMPLAINTS The Care Quality Commission ◦Role ◦Principles ◦Investigations ◦Reports ◦Powers

RESOURCES ALL LEGISLATION AND IS AVAILABLE AT: Theft Act 1968 Mental Health Act 1983 Human Rights Act 1998 Sexual Offences Act 2003 Domestic Violence, Crime and Victims Act 2004 Mental Capacity Act 2005 Fraud Act 2006 Care Act 2014 (with Guidance at

OTHER RESOURCES Social Care Institute for Excellence – MIND – The Care Quality Commission – Office of the Public Guardian – Equality and Human Rights Commission (EHRC) – Local Government Ombudsman –

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