1. THE LAW & SAFEGUARDING ADULTS

2. 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

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
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

14. 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

15. 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

16. 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

17. 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

18. 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

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

20. 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

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

22. 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

23. 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

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

25. 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.

26. 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

27. 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 ..’