INTRODUCTION TO THE CARE ACT 2014 PART 2 SAFEGUARDING AND THE CARE ACT Ulele Burnham

Transcription

1 INTRODUCTION TO THE CARE ACT 2014 PART 2 SAFEGUARDING AND THE CARE ACT 2014 Ulele Burnham Introduction 1. This paper provides a brief overview of the provisions of the Care Act 2014 ( CA 2014 ) and accompanying guidance directed at safeguarding vulnerable adults. The relevant provisions are, principally, as follows: a. Sections CA 2014 b. Chapter 14, Care and Support Statutory Guidance 1 ( The Guidance ). 2. From 2000, the framework governing the safeguarding of vulnerable adults was contained in guidance produced by the Department of Health: No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse ( No Secrets Guidance ). It was in that document that the terms vulnerable and abuse were defined in the context of safeguarding. The No Secrets Guidance was statutory guidance issued under s.7 of the Local Authority Social Services Act 1970 and therefore required relevant public authorities to depart from it only 1 Issued under the CA 2014 and published by the Department of Health in final form on 23 rd October 2014: _ _Care_Act_Book.pdf. 1

2 where there were cogent reasons for so doing. 2 Non-compliance with the No Secrets Guidance could render a local authority or other relevant statutory agency vulnerable to challenge by way of judicial review. However, this guidance did not impose on such agencies clear and binding obligations and did not define or describe in any detail the underlying legal basis on which the relevant agencies could take action to safeguard vulnerable adults. The hope was that the CA 2014 might create new powers/duties for the protection of vulnerable adults and set out in one place, even if merely by reference to other statutory pro 3 visions, the legal authority for taking action to this end. 3. Sections CA 2014 codifies some of the obligations in the No Secrets Guidance and creates procedural obligations but provides no new powers. Chapter 14 of the Guidance, which replaces the No Secrets Guidance, is not thought by academic commentators to either to simplify or clarify the framework and the roles and responsibilities within it. Both the incumbent government s discomfort with positive duties and obligations and the haste with which the Guidance was produced have been said to account for the imprecision. 4. What follows below is a description of the central new process obligations and any significant changes to the guidance in respect of safeguarding following the replacement of the No Secrets Guidance by Chapter 14 of the Care Act Guidance. 2 R. (Munjaz) v. Mersey Care NHS Trust [2006] 2 AC 148 per Bingham L at [20-21] and Hope L at [69]. See also on the status of a statutory code or guidance R v Islington LBC ex p. Rixon (1996) 1 CCLR 119, 123 (any departure from statutory guidance must be for good reason, articulated in the course of some identifiable decision making process ) and R v Tameside MBC ex p. J [2000] 1 FLR 942, 951 (guidance issued under s.7 of the Local Authority Social services Act 1970 a helpful aid to the way the legislation is intended to be implemented, and it should not be departed from without good reason ). 2

3 5. The six key principles described in Chapter 14 as underpinning all safeguarding work are Empowerment, Prevention, Proportionality, Protection, Partnership and Accountability. It is envisaged that these principles should inform the way in which all professionals and other staff work with adults and can help Safeguarding Adults Boards where they are used as principles against which local arrangements can be examined and improved [14.13]. S.42: Duty to make Enquiry 6. Where a local authority has reasonable cause to suspect that an adult in its area: a. has needs for care and support; b. is experiencing, or is at risk of abuse or neglect and c. as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it; it must make or cause to be made whatever enquiries it thinks necessary to enable it to decide whether any action should be taken and if so what and by whom. Vulnerability and the aims of safeguarding repeat, in the main, the meaning given to those terms in the No Secrets Guidance. Abuse is not defined on the face of the statute save in so far as it is said to include financial abuse for which some examples are provided. 4 Abuse, types of abuse and patterns of abuse are defined in Chapter 14 of the Guidance in much the same way as was done in the No Secrets Guidance [ ]. One notable addition to the typology of abuse is Modern Slavery which encompasses slavery, human trafficking, forced labour, and domestic servitude. Traffickers and slave masters use whatever means they have at 4 See s.42(3) CA

4 their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment. 7. The Guidance for local authorities in carrying out s.42 enquiries is set out at paras Detailed and lengthy guidance is provided in relation to criminal offences and safeguarding, triggers for an inquiry, procedures in individual cases and what happens after an inquiry. MCA principles are placed at centre stage (paras ) and the local authority is required to devise a protection plan where action is necessary. Procedural requirements are set out in respect of complaints and allegations and the Police and the CPS are implored to agree procedures to cover situations in which decisions need to be taken about whether prosecutions or trials do or do not follow an investigation. S.43: Safeguarding Adults Boards 8. There is now a statutory obligation on a local authority to establish a Safeguarding Adults Board ( SAB ) for its area. The objectives of an SAB, and the manner in which it is required to achieve its objectives, are set out in this section in terms that seem aspirational rather than mandatory. The procedural obligations relating to creation and composition of SAB s are provided for in Schedule 2. According Chapter 14 of the Guidance, an SAB has three core duties: to publish a strategic plan; to publish an annual report and to conduct a Safeguarding Adults Review in accordance with Section 44. S.44: Safeguarding Adults reviews 9. Section 44 requires SABs to conduct a Safeguarding Adults Review into certain cases in certain circumstances. Subsections (1)-(3) require the SAB to arrange a review where there is a reasonable cause for concern about how the SAB, its members or some other person with relevant functions involved in the case worked together and either the adult has died and the SAB knows 4

5 or suspects that the death resulted from abuse or neglect or the adult is still alive and the SAB knows or suspects that the adult has experienced serious abuse or neglect. This does not prevent the SAB carrying out a Safeguarding Adults Review in any other case where they feel it would be appropriate and this is set out in subsection (4). The adult must be in the local authority s area and have needs for care and support (whether or not the local authority has been meeting those needs). S.45: Supply of Information 10. Section 45 requires a person or body to supply information to an SAB where certain conditions are met. Whilst these are described at conditions 1-4 in the Act, the essential requirements are that: (a) The information must be requested for the purpose of enabling or assisting the SAB to perform its functions; and (b) The person or body requested to supply the information must have functions or engage in activities such that the SAB considers it likely to have information relevant to a function of the SAB. 11. The Explanatory Notes to the Care Act 2014 provide some guidance on the kinds of persons/bodies who would have functions/engage in activities which satisfy the s.45 conditions: for instance, a GP who provided medical advice or treatment to an adult in respect of whom a SAB was carrying out a serious case review, or to a family member or carer of that adult. It would also potentially encompass a person carrying out voluntary work that brought him or her into contact with such an adult or with a family member or carer, or a minister of a church attended by such an adult or by a family member or carer. 5 5

6 S.46: Abolition of local authority s power to remove persons in need of care 12. This section repeals the current power pursuant to s.47 NAA 1948 to remove people from their homes. S.47: Protecting property of adults being cared for away from home 13. This section restates the duty originally set out at section 48 of the National Assistance Act 1948, for local authorities to prevent or mitigate loss or damage to the moveable property of adults who have been admitted to a hospital or to a residential care home, and are unable to protect it or deal with it themselves. This duty applies to any tangible, physical moveable property belonging to the adult in question, including pets. The section also re-enacts an offence associated with this duty, found at section 55 of the National Assistance Act 1948, which sets out that any person who obstructs the local authority s exercise of this duty is liable on summary conviction to pay a fine, and provides a defence of reasonable excuse. Local authorities are able to recover from the adult any reasonable expenses incurred in protecting that adult s property. ULELE BURNHAM 16 th March