THE LAW & 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

THE LAW & SAFEGUARDING ADULTS