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THE LAW & SAFEGUARDING ADULTS Helen Kingston Beachcroft LLP.

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Presentation on theme: "THE LAW & SAFEGUARDING ADULTS Helen Kingston Beachcroft LLP."— Presentation transcript:

1 THE LAW & SAFEGUARDING ADULTS Helen Kingston Beachcroft LLP

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

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

4 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)

5 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

6 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)

7 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

8 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

9 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

10 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

11 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.

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

13 Duties & Responsibilities In Re A [2010] Munby J summarised the duties & responsibilities owed to vulnerable adults by the LA 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

14 Duties & Responsibilities In Re Z [2004] in the context of assisted suicide the LA duties were: To investigate To consider capacity Ensure fully informed re options & ascertain any influences Where capacity in doubt consider Court involvement Where lacks capacity provide assistance to give effect to her best interests Where capable to give advice & assistance Where a crime may be committed to contact police Not to control or regulate w/o court assistance

15 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

16 Key Legal Provisions Key parts of the legal framework in more detail

17 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

18 Human Rights Article 5 P has endometrial cancer and requires a hysterectomy. She lacks capacity and is unable to understand the need for treatment. She has a needle and hospital phobia. She has failed to attend for treatment and has refused some elements of treatment. The operation needs to be carried out but cannot be done so under normal procedures due to Ps behaviour. Post operative treatment will also have to carried out and may require sedation/ reasonable force to prevent P leaving hospital.

19 Human Rights Re E Complex genetic condition leading to physical and mental disabilities Cared for by foster carer F as a child and subsequently under an adult placement agreement, whereby F granted E a licence to occupy a room in her house on standard terms E displaying challenging behaviour at school A safeguarding referral made by School deputy head and E placed into respite care, at strategy meeting no consideration given to DoLs E moved to a residential unit, Z Unit, a 4 bed property housing 3 men with special needs and a staff ratio of 2:1 and a tenancy agreement executed. Medicated to manage his behaviour

20 Human Rights Re E CoP proceedings issued by G (Es sister) seeking declarations re Es capacity, best interests, whether unlawfully deprived of his liberty and entitled to damages Courts findings: E lacks capacity to decide where he should live

21 Human Rights Re E DoL? Yes: Staff at Z exercise complete control over Es movements E is confined to Z Unit unless he is escorted to school, visits or activities and has no space or possession that is private or safe from interference or examination He is unable to maintain social contacts because of restrictions on him and access to others including family members A decision has been made by the LA not to release him to care of others or permit him to live elsewhere unless considered appropriate Medication administered to reduce agitation & challenging behaviour, over which he has no control

22 Human Rights Re E Courts findings: Was the DoL unlawful? Yes & so in breach of Es Article 5 rights Not authorised by court or DoLs safeguards grievous errors by the LA responsibility for which lies higher up the line of management

23 Human Rights Article 8 Re E Courts findings following safeguarding removal from home: There was a breach of Article 8 in failing to give adequate consideration to the impact on Es family life with F at time of removal No proper, comprehensive welfare analysis carried out, a deplorable failure to take into account the close relationship between E & F, the need to sustain that relationship and the consequent failure to arrange any contact for several months Positive obligations under Article 8 and need for appropriate involvement of carers in the decision making process of family members (incl long-term foster carers) to a degree sufficient to provide them with the requisite level of protection of the families interests LAs errors grave and serious

24 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

25 Capacity & Duty Of Care Where P has capacity focus on support & empowerment & autonomy Where P lacks capacity may be a duty to provide care/ treatment in best interests Re PS If capable refusal of medical treatment could not be enforced Re E If E capable MCA will not apply & Es choice where to live

26 Capable Consent Where P has capacity generally consent required for care/ treatment to be provided Consent Real or informed? For each intervention Appropriately recorded To give valid consent P must have capacity Which is presumed Allowed to make unwise decisions Should not only consider capacity if treatment/care refused Some exceptions in particular circumstances where risk to others

27 Capacity Where P lacks capacity duty to provide care/treatment in best interests Generally falls within the framework of the MCA PS Lacks capacity so duty to treat in best interests – MCA applies Re E Lacks capacity so MCA applies & Q of where in Es best interests for him to reside

28 Key points for MCA application & assessments: Duty to have regard to the MCA Code of Practice Any decision must be in accordance with principles set out in s.1 MCA Only provides authority where P (16 or over) lacks capacity- s.2 definition & s.3 assessment Any act must be (reasonable belief) in best interests – s.4 Any act must be within lawful authority – s.5, s.6 Will not authorise a deprivation of liberty (unless court order/ authorisation obtained) MCA

29 Any act in connection with care and treatment Must be taken in accordance with the key principles…… The Principles (s.1) 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 (BI) Regard to least restrictive option MCA

30 Definition (s.2) for the purposes of this Act If at the material time he is unable to make a decision for himself in relation to the matter because of impairment of or a disturbance in the functioning of the mind or brain (s.2(1)) Whether permanent /temporary Balance of probabilities Not merely by reference to age/ appearance/ a condition of his/ or aspect of behaviour which might lead to unjustified assumptions (principle of equal consideration)

31 Assessment S. 3 – Unable to make a decision if unable to: Understand relevant information Retain that information (even for short period) Use/weigh up that information Communicate the decision Relevant information includes information about the reasonably foreseeable consequences of deciding one way or another / making no decision MCA

32 Any act must be done in Ps best interests (s.4) No statutory definition Instead a checklist of factors to be considered Sufficient where reasonable belief MCA

33 Recent judgments the weight attached to the various factors will, inevitably, differ depending on the individual circumstances of the particular case (ITW v Z 2009) MCA

34 Recent judgments physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately paid in order to achieve some other good…What good is it to make someone safe if it merely makes them miserable? (Re MM 2007) MCA

35 Recent judgments –EH (82) has dementia, currently lives alone in 3 bed house. Council (with family support) feel EH at risk and want to move her forcibly if necessary to residential accommodation & once there prevent her from leaving –Risks :-hypothermia due to inappropriate clothing; leaving home at night disorientated; wandering & getting lost; traffic; potential abuse by strangers; inadequate diet; failure to recognise fire hazards; failure to take meds; repeated distressing calls to family members; unable to assess own needs. MCA

36 S.5 - Acts in connection with care / treatment Protection from liability S.5 Where person doing act (D) Takes reasonable steps to establish lack of capacity Reasonably believes P lacks capacity & act is in Ps best interests Then position same as if P capable & consenting MCA

37 Limitations Subject to advance decision No authority to act in conflict with LPA/Deputy decision Restraint MCA

38 Restraint No act intended to restrain Use/threatens to use force to do act P resists Restriction of liberty whether or not P resists Deprivation of liberty is more than restraint Unless ( S.6):- Reasonable belief necessary to prevent harm to P AND proportionate response to likelihood of P suffering harm & seriousness of harm MCA

39 In addition to s.5 the MCA creates proxy decision makers MCA roles: LPA Court Deputy Court of Protection Any s.5 authority to act will be subject to the above and any valid applicable advance decision MCA

40 As seen a DoL cant be authorised under MCA without additional steps being taken This may involve either an order from the CoP or authorisation under the new Safeguarding authorisation procedure- the DoLs safeguards Re PS Court order obtained to authorise care plan Re E Failure to obtain authorisation meant there was a breach of Article 5 MCA - DoL

41 If the authorisation process does not apply then an order from Court will be required in advance Re E DoLs authorisation process did not apply because E was DoL in a residential unit that was not a hospital or a care home MCA - DoL

42 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 Capacity Otherwise

43 Development of Court role where vulnerable adult is capable within the MCA Re SA Capable within MCA definition so falls outside MCA But due to other influences lacked capacity re arranged marriage Court Inherent jurisdiction invoked Capacity Otherwise

44 Where P falls within definition of MHA MHA provides statutory powers of intervention whether P is capable or not In the interests of Ps health/safety or protection of others Must fall within criteria of MHA Provides for treatment for mental disorder Inpatient & community provisions Provides for detention Mental Disorder

45 Relevant provisions: Detention (& compulsion) for treatment for MD Community provisions eg guardianship which includes a power to require residence & take & convey powers Emergency powers: To detain an inpatient (5(2)) To enter private premises & remove to a place of safety (135) To the police to remove from a place to which the public have access to a place of safety (136) Mental Disorder

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

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

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

49 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

50 Information Sharing Public Interest Disclosure Balancing exercise between the right to (and public interest in) confidentiality and the public interest in disclosure W v Egdell [1990] 1 All ER 835 Woolgar v Chief Constable of Sussex Police [1993] 3 All ER 604 CA

51 Information Sharing Data Protection Act 1998 Introduces protections for Data 8 key principles Applies safeguards to processing Allows rights of access

52 Information Sharing Data Protection Act 1998 First principle: personal data should be processed fairly and lawfully Generally speaking this requires consent Disclosure is permitted if it is likely to assist in the prevention, detection or prosecution of a crime and a failure to disclose would be prejudicial to those purposes S115 of the Crime and Disorder Act 1998 is a gateway power not a duty Net result very similar to the common law test

53 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

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

55 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.

56 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

57 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.. Re A – per Munby J


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