Topic outline

  • 1. Background and Legal Framework

    The information in this section gives a general overview of the main legal powers that come under the remit of safeguarding adults and is based upon the statutory duties in relation to safeguarding that are placed on and set out in the Care Act 2014 ('the Act'), and the Care and Support Statutory Guidance ('the statutory guidance').  The Act states that Local Authorities are the lead safeguarding agencies and are generally the first point of contact for raising concerns.  Until the Act came into force in April 2015, there was no law dealing specifically with safeguarding adults who might be at risk of abuse or neglect.   

    Depending on the issues arising in a case, legal powers to intervene can be complex; therefore gaining specific or expert advice is recommended.  If criminal activity is suspected or known, then contact the Police.  If it is a civil issue, speak to the Local Authority, a Citizen's Advice Bureau or a solicitor to gain advice on what interventions can be made. 


    • 2. Safeguarding Adults and Human Rights

      The Human Rights Act 1998 includes a right not to be subject to torture, inhuman or degrading treatment (Article 3), a right not to be unlawfully deprived of your liberty (Article 5),a right to a fair hearing (Article 6), a right to enjoy private, family and home life without unjustified interference from public authorities (Article 8) and a right not to be discriminated (Article 14).  Public authorities, including local authorities, have a proactive duty towards Adults at Risk, to take "reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge".  Public authorities may be considered to be responsible for the harm and therefore will be in breach of Article 3, even where they have merely failed to prevent degrading treatment, rather than caused it.

      • 3. Police Powers and Safeguarding Adults

        If the Police believe a serious offence may about to be or has been committed, or they believe that action is required to save life or limb or to prevent serious damage to property, they can enter premises to investigate and/or arrest a suspected offender.  They can also enter if they think that someone is at imminent risk to their safety.  

        • 4. Domestic Violence and Controlling or Coercive Behaviour

          If a person is violent or threatening violence in a family setting, it may be possible for the victim of abuse to obtain an injunction.  This is a court order forbidding the person from harming or threatening harm to the victim.  The order that a court makes depends on the circumstances of the case.

          It may issue a 'non-molestation order', which prevents a person from using or threatening physical violence, intimidating, harassing or pestering, communicating with the victim (if appropriate) and instructing or encouraging others.

          It may also issue an 'occupation order' which prevents a person from living in the family home.

          If you think that someone is being subjected to physical abuse, the person can be referred to any local domestic violence organisation such as Wearside Women In Need (Sunderland area).  You should also notify the local authority as soon as possible that there is a safeguarding issue.

          Police Powers and Domestic Violence/Abuse

          In relation to domestic violence, Domestic Violence Protection Orders (DVPOs)and Domestic Violence Protection Notices (DVPNs) under Sections 24-33 of the Crime & Security Act 2010 were rolled out across all 43 police forces in England & Wales from 8th March 2014.  DVPOs are a civil order that fills a 'gap' in providing protection to victims by enabling the police and magistrates courts to put in place protective measures in the immediate aftermath of a domestic violence incident where there is sufficient evidence to charge a perpetrator and provide protection to a victim via bail conditions.

          A DVPN is an emergency non-molestation and eviction notice which can be issued by the police, when attending to a domestic abuse incident, by a perpetrator.  Because the DVPN is a police-issued notice, it is effective from the time of issue, thereby giving the victim the immediate support they require in such a situation.  Within 48 hours of the DVPN being served on the perpetrator, an application by police to a magistrates' court for a DVPO must be heard.  A DVPO can prevent the perpetrator from returning to a residence and having contact with the victim for up to 28 days.  This allows the victim a degree of breathing space to consider their options with the help of a support agency.  Both the DVPN and DVPO contain a condition prohibiting the perpetrator from molesting the victim.          

          See also: Definitions, Categories & Indicators of Abuse: 2.2 Domestic Violence and Abuse

          • 5. Controlling or coercive behaviour in an intimate or familial situation

            A new offence of controlling or coercive behaviour in intimate or family relationships was introduced in December 2015.  The offence is established by behaviour on the part of the person which takes place repeatedly or continuously. 

            The victim and alleged person must be personally connected at the time the behaviour takes place.  The behaviour must have a serious affect on the victim, meaning it has caused the victim to fear violence will be used against them on at least two occasions or has had a substantial adverse effect on the victim's day-to-day activities.

            The alleged person must have known their behaviour would have a serious effect on the victim, or the behaviour must have been such that he or she ought to have known it would have that effect.  The penalty is a maximum of 5 years imprisonment, a fine or both.

                

            • 6. Removing a person from their own home?

              If a local authority thinks someone living in a family home is being subjected to abuse, they do not have any powers to come and remove the person.  If the person is able to agree to leave and does, they can be taken to a safe place, such as respite care, while a safeguarding enquiry takes place.

              If the person lacks mental capacity to agree to leave, a local authority has powers to take steps to remove the person.  In this situation, a local authority can and should do three things:

              • carry out an enquiry under safeguarding procedures
              • put a care plan in place to manage the risk if that seems a viable and appropriate response to the situation
              • apply to the Court of Protection if the person needs to be removed from their home for their own safety 

              There have been many cases where a local authority has removed an individual lacking mental capacity from their home and family against their wishes, without making an application to the Court of Protection.  The courts have said, in these cases, that the local authorities have acted unlawfully and failed to give any consideration to balancing the rights to home and family life against the risk of abuse to the individual.

              In many cases, there may be no substance to an allegation of abuse or neglect, but family members have been kept apart for long periods of time and their Article 8 rights infringed.  The Court of Protection has been critical of this behaviour by local authorities and have reminded them that deprivation of liberty procedures is intended to protect vulnerable people, not a means for a local authority to 'get it's own way' against the wishes of a family. 

              It is therefore essential that if a removal of a person who lacks capacity from their home is being considered that this is done within a lawful framework.

              If urgent or emergency action is required to remove a person who lacks capacity from their home or to stop them being returned to their home, then legal advice should be sought from the local authority.      


              • 7. The Mental Health Act 1983

                People can be lawfully detailed against their wishes for a period of time in a psychiatric hospital or unit or other institution under the Mental Health Act 1983.  This is often called being 'sectioned' or detained. 

                These powers can only be used if the person has a 'mental disorder', as defined in the MHA and it is necessary in the interests of their welfare and a strict procedure is followed.  The term 'mental disorder' is defined in the 1983 Act and is different to the definition of mental capacity in the Mental Capacity Act 2005.

                Under section 115 of the MHA, an Approved Mental Health Professional (AMHP) may enter and inspect any premises in which a mentally disordered person lives, if they believe the person is not receiving proper care.  If asked, the AMHP must produce authenticated identification of their status.

                Under section 135 of the MHA, a magistrate may issue a warrant to a police constable to enter premises, using force if necessary, on the basis of evidence under oath from an AMHP that there is reasonable cause to suspect a person with a mental disorder is being ill-treated or neglected.  The person can be removed to a place of safety for a mental health assessment for up to 72 hours.    


                  


                • 8. The Mental Capacity Act 2005

                  A local authority generally has no legal powers to protect someone or provide them with services against their will when that person has the capacity to make a relevant decision, even if that person chooses to stay in an abusive relationship.  An exception to this rule is where the person concerned lacks mental capacity to make a decision to stay in their situation or where a person is subject to such a high level of coercion, undue influence or duress they cannot make a decision.

                    

                  • 9. Where someone lacks mental capacity to consent

                    The Mental Capacity Act 2005 put in place a legal framework designed to support and protect people with serious cognitive impairments, such as significant learning disabilities, acquired brain injuries or dementia.

                    There is a legal presumption in favour of mental capacity.  This means people are presumed to have the capacity to make their own decisions and be helped to do so by all reasonable means.  If they appear unable to be able to make a particular decision, for instance about care arrangements, the local authority should assess their mental capacity.

                    After an assessment, if the local authority finds a person does not have sufficient mental capacity to decide on an issue, the decision must be made for them in their best interests.  Factors to be taken into account to reach a best interests decision include:

                    • the person's own views
                    • the opinions of other people, including carers, professionals involved in looking after the person and anyone appointed by the Court of Protection as a deputy or who has a relevant power of attorney

                       

                           


                    • 10. Deprivation of Liberty Safeguards (DoLS)

                      Sometimes adults without mental capacity to protect themselves may need to have their freedom restricted to keep them safe.  If this restriction amounts to constant supervision and control and prevents a person leaving and choosing to live elsewhere, the Supreme Court has ruled that this amounts to a deprivation of the person's liberty.  It is a breach of Article 5 (the right to liberty) of the Human Rights Act 1998.

                      A typical example would be where someone with dementia in a care home is prevented from wandering off by the use of a key pad on the door that they are unable to operate.

                      In these situations, a local authority (or a clinical commissioning group if the person is in a hospital) decide whether it is right to authorise the deprivation of liberty.    

                      If someone lives in their own home or another form of supported living, such as an extra care home, they cannot be legally deprived of their liberty under DoLS and an application for such authorisation must be made to the Court of Protection.

                      For further information, see the Deprivation of Liberty Safeguards website.


                      • 11. The inherent jurisdiction of the High Court and vulnerable adults/Adults at Risk

                        Under inherent jurisdiction, the High Court has powers to hear any case which comes before it.  In DL v A Local Authority & Others (2012), the Court of Appeal held the High Court could make orders to protect vulnerable adults who had capacity under the MCA, but whose ability to make decisions has been undermined through their being under constraint, subject to coercion or undue influence, or otherwise prevented from making a free choice or giving real or genuine consent.  This means local authorities can apply to the High Court for an order to grant access to a vulnerable adult with capacity, for example to carry out an assessment, where this is barred by another person in the home, if they have no other options available. 

                        • 12. The Court of Protection

                          The Court of Protection is a court that deals with issues arising in relation to the health and care and financial resources of people who lack mental capacity to manage aspects of these issues for themselves.

                          For example, only the Court of Protection can authorise the deprivation of liberty of someone living in their own home or supported/sheltered living environment such as extra care housing or authorise the management of the financial and property affairs of a person who lacks capacity.

                          For further information, see the Court of Protection website.

                          • 13. The Office of the Public Guardian

                            The Office of the Public Guardian (OPG) is a public body that works closely with the Court of Protection.  Its main role is to register applications for powers of attorney.  These are powers granted by an adult to another person , often a family member, to allow them to look after their finances or make decisions on health and welfare issues if they lose mental capacity in the future.

                            Some attorneys abuse their positions and exploit the older person they are appointed to support.  This is often financial abuse, but may involve failing to act in the older person's best interest in other ways, such as bullying or threatening behaviour.  Part of the OPG role is to investigate allegations of abuse by registered attorneys.   

                            If an older person has lost capacity and has not granted a power of attorney to anyone, it may be necessary to apply to the Court of Protection to appoint a 'deputy'.  They are usually appointed to manage finances.  Deputies are usually family members, specialist solicitors or a local authority representative.

                            Deputies can be appointed to deal with health and welfare matters, but this is uncommon.  Usually a deputy is not needed for those matters, as health and social care professionals working with the person and their family make those decisions, or, if there is serious conflict, the Court of Protection decides.

                            The OPG can investigate allegations of abuse by a court-appointed deputy or a registered attorney.  They may refer the case to a local authority or investigate themselves.  If the case needs urgent action, for example to stop someone emptying an older person's bank account, the OPG can initiate court proceedings through the Court of Protection and the court can freeze the funds or order whatever urgent action it thinks needs to be taken.       

                            For further information, see the Office of the Public Guardian website.

                            • 14. Role and Duties of the Safeguarding Adults Board

                              Local authorities must establish a Safeguarding Adults Board (SAB) to coordinate and ensure effectiveness in helping and protecting adults at risk of abuse and neglect.  SAB's have wide powers to do anything that appears necessary or desirable for the purpose of achieving its objectives.

                              A range of organisations, including voluntary sector organisations and carer and service user groups, may be invited to join, but core statutory members are:

                              • Local Authority
                              • Local Clinical Commissioning Group (CCG)     
                              • Chief Officer of Police


                              The SAB must produce an annual strategic plan, including what each member will do to implement the plan and must consult the local Healthwatch and wider community.  It must publish an annual report to show what it has done to achieve its strategic objectives, both collectively and individually.  This information is public, so you can find out what is going on in your local area to protect adults at risk and can contribute to the consultation process if you want.


                              • 15. Safeguarding Adult Reviews (SARs)

                                If there is a cause for concern about how SAB members or other health and social care staff worked together to safeguard adults at risk, the SAB must arrange a review.  This duty does not apply to every safeguarding case, but to those where: 

                                • an adult has died and the SAB knows or suspects the death resulted from abuse or neglect, or
                                • an adult is still alive and the SAB knows or suspects that the adult has experienced serious abuse or neglect


                                It may arrange a review in other cases involving an adult in its area with care and support needs.  It has discretion to decide whether the circumstances merit a formal review.  The object of the review is not to apportion blame but to identify lessons to be learnt and applied in future.          

                                • 16. The Disclosure and Barring Service

                                  The Disclosure and Barring Service (DBS) has been set up by the Home Office.  Its role is to help employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups, both adults and children.  It replaces the Criminal Records Bureau and Independent Safeguarding Authority.

                                  The DBS carries out criminal record checks for anyone employed in a 'regulated activity'.  This covers the provision of health and/or social care in the form of personal care, and other care such as domestic help to adults who need it because of age, illness or disability.

                                  Employers concerned about a member of staff must refer the matter to the DBS if the person has cased harm, or poses a risk of harm to vulnerable groups.  Other organisations, such as the Care Quality Commission or local authorities, can make referrals.      

                                  The DBS has the power to bar people from working with vulnerable adults and/or children.  Some criminal convictions carry an automatic bar, whereas others leave it to the discretion of the DBS as to whether the person should be barred from this work. 

                                  For further information, please visit the Disclosure and Barring Service website.



                                  • 17. Human Trafficking and Slavery

                                    Modern Slavery is the term used within the UK and is defined within the Modern Slavery Act 2015.  The Act categorises offences of Slavery, Servitude and Forced or Compulsory Labour and Human Trafficking.  

                                    These crimes include holding a person in a position of slavery, servitude, forced or compulsory labour, or facilitating their travel with the intention of exploiting them soon after.  Although human trafficking often involves an international cross-border element, it is also possible to be a victim of Modern Slavery within your own country.

                                    There are several broad categories of exploitation linked to human trafficking, including:

                                    • Sexual exploitation; forced labour; domestic servitude; organ harvesting; child-related crimes such as child sexual exploitation, forced begging, illegal drug cultivation, organised theft, related benefit frauds etc; forced marriage and illegal adoption (if other constituent elements are present).  

                                    In the first instance the point of contact for all human trafficking and modern slavery crimes should be the local police force.  If you have information about those who are committing such crimes or where victims are at risk that requires an immediate response, dial 999.  If you hold information that could lead to the identification, discovery and recovery of victims in the UK, you can contact the Modern Slavery Helpline 0800 0121 700.    

                                    See also Definitions, Categories & Indicators of Abuse: 2.7 Modern Day Slavery (including Modern Day Slavery Guidance) 

                                    • 18. Forced Marriage

                                      The Anti-Social Behaviour, Crime and Policing Act 2014 makes it a criminal offence to force someone to marry.  This includes:

                                      • Taking someone overseas to force them to marry (whether or not the forced marriage takes place)
                                      • Marrying someone who lacks the mental capacity to consent to the marriage (whether they are pressured to or not) 
                                      • Breaching a Forced Marriage Protection Order is also a criminal offence
                                      • The civil remedy of obtaining a Forced Marriage Protection Order through the family courts will continue to exist alongside the new criminal offence, so victims can choose how they want to be assisted.


                                      • 19. Female Genital Mutilation (FGM)

                                        The Female Genital Mutilation (FGM) Act came into force on 3rd March 2004 and was amended by sections 70 to 75 Serious Crime Act 2015.  Section 70 to 72 came into force on 3rd May 2015 and which:

                                        • extended the scope of extra-territorial offences
                                        • granted victims of FGM lifelong anonymity; and
                                        • introduced a new offence of failing to protect a girl from risk of FGM.

                                        Section 73 came into force on 17th July 2015; Section 74 came into force on 1st October 2015.  These provisions introduced FGM Protection Orders and a mandatory duty for frontline professionals to report FGM.  

                                        The Act refers to "girls", though it also applies to women.

                                        The offences are: Section 1 Offences of female genital mutilation; Section 2 Offence of assisting a girl to mutilate her own genitalia; Section 3 Offence of assisting a non-UK person to mutilate overseas a girl's genitalia; Section 3A Offence of failing to protect a girl from risk of genital mutilation and Section 4A Protection for Victims of FGM.         

                                        See also  Definitions, Categories & Indicators of Abuse: 2.13 Female Genital Mutilation (including Sunderland's FGM Procedure)