21.1Department of Health guidance: No secrets
During the 1990s concern grew about the phenomenon of what has been termed adult abuse – and a corresponding need to protect and to safeguard vulnerable adults.
In 2000, the Department of Health published guidance about this. The guidance gave local social services authorities the lead in the development of local policies and practices, involving cooperative working with other local agencies, including the police, housing organisations, NHS bodies etc. Adult protection, or safeguarding adults, as it is increasingly called in England, is growing rapidly as an area of work for local social services authorities.
However, substantially no new social services legislation was passed concerning adult protection, equivalent for example to child protection provisions contained in the Children Act 1989. Indeed, central government in England has so far failed to adopt proposals made by the Law Commission (1995) that local authorities should given be explicit protective powers. This is in contrast to Scotland, where the Scottish Parliament has passed just such legislation in the form of the Adult Support and Protection (Scotland) Act 2007. There is concern that the lack of clear statutory obligation on statutory bodies, such as local authorities and NHS organisations, undermines efforts to achieve effective protection and safeguarding.
Therefore, in order to understand the legal framework, a twofold approach is required. First, from the social services point of view, adult protection issues have to be set in the context of existing community care legislation and related guidance. Second, in order to understand how other agencies are able to act, an appreciation of other, non-social services legislation is needed – in order to identify possible legal remedies to prevent or to respond to certain types of abuse.
This chapter outlines a range of legal issues, in addition to community care legislation. This includes the protection of vulnerable adults list (POVA) and future ‘barring’ scheme, criminal record certificates, removing people from their homes under the National Assistance Act 1948, mental health law interventions, environmental health powers, civil wrongs (e.g. assault, battery, false imprisonment), criminal justice legislation (including offences against the person, sexual offences and theft), and the principle of undue influence in relation to financial abuse. In addition, use of the Mental Capacity Act 2005, to protect people lacking capacity and to act in their best interests, is a major legal route to consider in safeguarding adults. This is covered in Chapter 20 of this book.
Particularly notable, and an additional complication, is the degree to which local authorities and the NHS, two key types of statutory agency in the protection of vulnerable people, are themselves so heavily implicated – both directly and indirectly – in some of the physical and financial harm to which vulnerable people come.
The legal and practical scope of adult protection and safeguarding is ill-defined but is potentially very wide. For that reason, this chapter provides a bird’s eye view only. This is expanded upon in a companion volume to this book, Safeguarding vulnerable adults and the law.
21.1 DEPARTMENT OF HEALTH GUIDANCE: NO SECRETS
In 2000, the Department of Health published policy guidance under s.7 of the Local Authority Social Services Act 1970. Entitled No secrets, it stated that local authority social services departments should take the lead in ‘inter-agency’ working to combat such abuse. It set out a framework only, on which local authorities could base more detailed local policies and procedures (DH 2000).
21.1.1 DEFINITION OF VULNERABLE AND ADULT AND OF ABUSE
The guidance states that it is concerned with the protection from abuse of vulnerable adults. A vulnerable adult is defined as 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 may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation’.
Abuse can be physical, sexual, psychological, financial or material, neglect and acts of omission, discriminatory, institutional. Some forms of abuse are criminal offences, for example physical assault, sexual assault and rape, fraud, etc. (DH 2000).
21.1.2 INTER-AGENCY WORKING
The guidance stresses the importance of inter-agency working including the NHS and social services, sheltered and supported housing providers, regulators of services, polices and Crown Prosecution Service, voluntary and private sector agencies, local authority housing and education departments, probation service, DSS benefit agencies, carer support groups, user groups and user-led services, advocacy and advisory services, community safety partnerships, legal advice and representation services, and so on (DH 2000). It suggests the setting up of local adult protection committees.
21.1.3 INFORMATION SHARING
The Department of Health guidance points out that, as part of inter-agency working, agreement on the sharing of information will be required, in order to balance on the one hand confidentiality, and on the other the importance of sharing information (even in the absence of consent). The guidance summarises the principles of sharing confidential information as follows (DH 2000, para 5.6):
•information must be shared on a ‘need to know’ basis only
•confidentiality should not be confused with secrecy
•informed consent should be obtained but, if this is not possible and other vulnerable adults are at risk, it might be necessary to override this requirement
•assurances of absolute confidentiality should not be given where there are concerns about abuse.
It also goes on to state that principles of confidentiality designed to safeguard and promote the interests of service users should not be confused with those ‘designed to protect the management interests of an organisation’ (DH 2000, para 5.8).
21.2 SOCIAL SERVICES LEGISLATION
Since no specific new legislation was passed to accompany central government policy as set out in the No secrets guidance, local social services authority safeguarding work primarily rests on the existing community care legislation as set out previously in this book. Hence the guidance refers to a vulnerable adult as being a person who may be in need of community care services. This is a direct reference to the condition in s.47 of the NHS and Community Care Act 1990, which is the legal trigger for community care assessment of a person’s needs and possible intervention.
The absence of any specific adult protection legislation has been recognised by the courts. In one case, concerning an assisted suicide, whilst acknowledging the No secrets guidance, the judge held that a local authority’s duties were limited to addressing the community care needs of the particular person as assessed by the authority. Any common law duties that it might owe ‘did not extend the scope of the statutory duties’ under the relevant community care legislation. Furthermore, such duties were not ‘all-embracing’ in the ways provided for children under s.33 and Part 3 of the Children Act 1989 (Re Z).
Community care legislation contains a wide variety of services that local authorities can potentially arrange for people (see Chapters 9 and 11) – and which may be relevant in the context of preventing or reacting to abuse and harm. These include, for example, placing a person in a care home, as well as providing practical assistance in a person’s own home, advice, support, visiting services, and so on. Such non-residential services referred to are available for both disabled people under the National Assistance Act 1948 (s.29) and the Chronically Sick and Disabled Persons Act 1970 (s.2). They are also available for older people generally, who are not disabled, under the Health Service and Public Health Act 1968 (s.45).
The carers’ legislation, too, may be useful (see section 13.5 above). For instance, sometimes the physical and mental stress of continual caring might start to lead to possible or actual abuse or neglect. An assessment and provision of a short break for the carer – either as a carer’s service under the Carers and Disabled Children Act 2000, or as community care service under the National Assistance Act 1948 or Chronically Sick and Disabled Persons Act 1970 – might defuse the threat of abuse.
21.2.1 SOCIAL SERVICES IMPLICATED IN HARM TO VULNERABLE PEOPLE
Local authorities are charged with safeguarding adults under the No secrets guidance. Typically they are increasingly aware of abuse or neglect being perpetrated in care homes or in people’s own homes by carers or family
However, sometimes, unwittingly, local authorities themselves appear to be the root cause of abuse or neglect. Alternatively, while not being the root cause, they may display a blind spot; typically this seems to be the case in relation to the NHS, when social services often appears powerless or unwilling to protect, or even to attempt to protect, vulnerable adults from sometimes highly neglectful practices.
18.104.22.168 Local authorities’ failure to monitor and review contracted out services
First, local authorities sometimes continue to contract out services to independent care providers even when they are well aware that those care providers are not delivering care to a suitable standard, and are putting vulnerable service users at significant risk – but have not acted to remedy the problem. The consequences may literally be fatal, as the local government ombudsmen have found. In such circumstances, the ombudsmen have little hesitation in finding maladministration on the part of local authorities (see section 8.2.3).
22.214.171.124 Failure to meet people’s needs
Second, the failure sometimes on the part of local authorities to discharge their clear duties to fund the care that people clearly need may result in severe detriment, including abuse, for vulnerable people. For instance, the local government ombudsman has investigated several cases involving younger adults with severe learning disabilities and autism whom the local authority refused adequate funding for. The consequences were serious, including people being shut up (inappropriately) in a secure psychiatric unit and heavily sedated for up to a year, and being forgotten about in hospital for ten years and suffering abuse there. The ombudsmen were duly scathing in these cases (see 6.11).
126.96.36.199 Breach of the rules about topping up of care home fees
Third, it would appear that many local authorities knowingly breach the rules about when families can, and can’t be asked, to top up care home fees (see 9.5.1). This can result in older people’s families having to part with considerable sums of money which the local authority should in fact be paying.
188.8.131.52 Persistent charging for NHS continuing health care
Fourth, for at least 14 years, significant numbers of people – almost certainly numbering tens of thousands – have wrongly been denied NHS continuing health care (see Chapter 18). This has meant many having to use up savings and sell their houses. However, in such cases it is not just that the NHS has unlawfully denied responsibility for there care, but that local authorities have unlawfully provided services and charged people for them. Local authorities would protest that they have merely been stepping in to help people wrongly denied by the NHS, but this would be less than candid. For the most part, local authorities have stood back at senior level and accepted this pattern without serious challenge. However, given that they have been given the lead to protect vulnerable adults from abuse, including financial abuse, it is astonishing that they should have displayed such passivity. Front line practitioners have often been left to fight lonely battles on behalf of individual clients.
This is especially so since (a) to fund the services at all in such circumstances is unlawful; (b) it is the local authority not the NHS which charges and forces people to use up savings and sell their homes; and (c) if people cannot afford to pay the charges or run out of assets, the local authority steps in and uses public money to fund, unlawfully, the services itself. The measure of local authorities’ ineffectual approach over a long period of time has been revealed by the fact that even central government has admitted to having to repay to people and their families some £180 million in unlawfully taken fees for health services.
184.108.40.206 Charging for aftercare services under the Mental Health Act 1983
Fifth, local authorities for many years made unlawful charges for people receiving mental health aftercare services under s.117 of the Mental Health Act 1983. Some of these charges, before the courts had dispelled doubts about the true position, could perhaps be excused. But even after the position was clear, some local authorities have continued to act in such a way as to suggest serious impropriety. For example, one local authority, short of funds, even tried to get a woman to sign away her legal rights to such free aftercare – threatening the alternative that she might have to stay unnecessarily in hospital for up to a year if she did not do so (York CC 2006). As with NHS continuing health care, significant sums of money have had to be repaid by local authorities to users of services.
220.127.116.11 Strict eligibility criteria as to who will be assisted
Lastly, the ever increasing strictness of eligibility rules means that vulnerable people are no longer being assisted by local authorities. The Commission for Social Care Inspection has identified that this trend is removing quality, dignity and self-worth from significant numbers of older people (CSCI 2008).
Younger adults, too, may be affected. In Cornwall, it appeared that a man with learning disabilities whose life was taken over by people who were exploiting him, before he was tortured and murdered, would probably not have been eligible for social services assistance in the final year of his life under the ‘fair access to care’ policy (Cornwall Adult Protection Committee 2007, p.9).
21.3 NHS IMPLICATED IN ABUSE OR NEGLECT
A significant number of reports and investigations over the last few years have indicated that the NHS is implicated in significant and widespread neglectful and arguably abusive practices.
The examples that have come to light are many, including tying people on commodes for extended periods of time (HC, CSCI 2006), tying people up in wheelchairs likewise (HC 2007b), placing abusive and restrictive care regimes on people with learning disabilities (HC 2007c), not helping people eat and drink in hospital even when they cannot do so themselves (HC 2007d), deliberately taking short cuts with infection control measures in order not to jeopardise performance targets and thus directly contributing to scores of deaths from Clostridium difficile (HC 2006), maintaining hospital wards and equipment in filthy condition (HC 2007a), telling patients to evacuate their bowels and bladder in the bed (HC 2007a), running hospitals at excessive bed occupancy causing not only infection problems but undermining the clinical welfare and dignity of patients (HC 2006a), premature discharge of patients – including waking up and discharging patients in the middle of the night, unplanned (Bond 2007). In addition, the improper denial of NHS continuing health care to people, thus forcing them to use up their savings and sell their houses, has caused huge financial harm to vulnerable older people and their families.
21.4 PROTECTION OF VULNERABLE ADULTS LIST
Under the Care Standards Act 2000, there has been a duty on the Secretary of State to keep a list of care workers who are considered unsuitable to work with vulnerable adults because they have, through misconduct, harmed or placed at risk of harm vulnerable adults – and the employer has, or would have, dismissed the person, or transferred him or her to a non-care position (s.81). The protection of vulnerable adults (POVA) list was started in July 2004. In October 2009, a new system of barring is due to be in place and will have replaced the POVA list scheme.
Care providers have a duty to check the POVA list, and not offer employment if the prospective employee is included on the list (whether or not provisionally). This duty covers existing employees moving or being transferred from a non-care to a care position. If the employer discovers that an existing employee is on the list, the employer must cease to employ the person in that care position (Care Standards Act 2000, s.89; DH 2004c, para 29).
It is an offence for a person on the POVA list (unless the inclusion is provisional only) to apply for, offer to do, accept or do any work in a care position (Care Standards Act 2000, s.89).
21.5 BARRING PEOPLE FROM WORKING WITH VULNERABLE ADULTS
From October 2009, a new scheme of regulating the social and health care work force replaced the previous scheme that had regulated personal care and independent health care. In summary only, the new scheme is as follows.
First, an independent barring board (IBB), to be known as the Independent Safeguarding Authority (ISA) has a duty to establish an ‘adults barred list’ (and a children’s also). If a person is included in the list he or she is barred from engaging in a ‘regulated activity’ with vulnerable adults (ss.2-3).
The ISA will place an individual on the barred list in four main ways. First, if certain prescribed criteria apply to the individual, relating to sexual offences involving a mentally disordered victim, inclusion is automatic. Second, if certain other prescribed criteria apply, relating to a wide range of offences, inclusion is also automatic, but the individual must be allowed to make representations as to why he or she should be removed from the list. If the ISA considers that it is not appropriate to include the individual on the list, then it must remove him or her.
Third, if it appears to the ISA that the person has engaged in relevant conduct and it proposes to include the individual on the list, it must give the person the opportunity to make representations as to why he or she should not be included. If the ISA is satisfied that the person has engaged in the relevant conduct of endangering a vulnerable adult, and that it appears to the IBB that it is appropriate to include him or her on the list, then it must do so (schedule 3). Relevant conduct is conduct:
•endangering, or likely to endanger, a vulnerable adult
•which if repeated would endanger, or be likely to endanger, a vulnerable adult
•involving sexual material relating to children