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

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

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’)

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

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

MCA - DoL

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

Capacity Otherwise

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

Mental Disorder

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

MHA or MCA?

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 SharingThe 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 IssuesRobust & 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/recordedRisk of focus on ‘safeguarding’ losing sight of the bigger pictureRisk 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