The Law and Safeguarding Adults
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Transcript The Law and Safeguarding Adults
THE LAW & SAFEGUARDING ADULTS
Helen Kingston
Beachcroft LLP
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
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
Court’s 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
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
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
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
Key Legal Provisions
Key parts of the legal framework in more detail
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
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
P’s behaviour. Post operative treatment will also
have to carried out and may require sedation/
reasonable force to prevent P leaving hospital.
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
Human Rights
Re E
CoP proceedings issued by G (E’s sister) seeking
declarations re E’s capacity, best interests, whether
unlawfully deprived of his liberty and entitled to
damages
Court’s findings:
E lacks capacity to decide where he should live
Human Rights
Re E
DoL? Yes:
Staff at Z exercise complete control over E’s 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
Human Rights
Re E
Court’s findings:
Was the DoL unlawful?
Yes & so in breach of E’s 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’
Human Rights
Article 8
Re E
Court’s findings following ‘safeguarding’ removal from home:
There was a breach of Article 8 in failing to give adequate
consideration to the impact on E’s 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
LA’s errors ‘grave and serious’
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
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 & E’s choice
where to live
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
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
E’s best interests for him to reside
MCA
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
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
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’)
MCA
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
Any act must be done in P’s best interests (s.4)
No statutory definition
Instead a checklist of factors to be considered
Sufficient where ‘reasonable belief’
MCA
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
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
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
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
P’s best interests
Then position same as if P capable & consenting
MCA
Limitations
Subject to advance decision
No authority to act in conflict with LPA/Deputy
decision
Restraint
MCA
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
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 - DoL
As seen a DoL can’t 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
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
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
Capacity Otherwise
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
Mental Disorder
Where P falls within definition of MHA
MHA provides statutory powers of intervention whether
P is capable or not
In the interests of P’s 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
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
Relevant provisions:
Specific rights of access & entry
Specific criminal offences
MHA or MCA?
MCA
Only where P is old enough & lacks capacity
Care & treatment in P’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 P 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
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
Information Sharing
Data Protection Act 1998
Introduces protections for “Data”
8 key principles
Applies “safeguards” to processing
Allows rights of access
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
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 ..’
Re A – per Munby J