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