Adult Safeguarding. Policy Guidance and Procedures. Part 1. Responsibilities. April 2012

Transcription

1 Adult Safeguarding Policy Guidance and Procedures Part 1 Responsibilities April

2 Lead Authors Ratified by Document type Ivan Molyneux and Helen Berrey Cambridgeshire Adult Safeguarding Board Guidance and Procedure These guidance and procedures can only be considered valid when viewed via the Cambridgeshire County Council Adult Safeguarding Web Page If this document is printed into hard copy or saved to another location, you must check that the date on your copy matches that of the one on-line. Document Control Sheet Development and consultation Developed in consultation with partner agencies via the Cambridgeshire Adult Safeguarding Board Dissemination Training Review Equality and Diversity To all partner agencies. On-going training may be accessed through Cambridgeshire County Council via the Adult Safeguarding Training Team. To be reviewed by the Cambridgeshire Adult Safeguarding Board. These guidance and procedures are to support all vulnerable adults in Cambridgeshire. Please check the end of this document for latest revisions made in April 2012 IMPORTANT: This document is in two parts, which should be read in conjunction. Part 1 contains Contents, Introductions, Standards, Partner Agencies, Legal Reference and Guidance. Part 2 contains Contents, Procedures, Practice Guidance and Appendices. Rev April 2012 Page: 2 COM.CARE 4.4

3 CONTENTS 3 1. INTRODUCTION 6 2. STANDARDS 7 3. PARTNER AGENCIES 8 Professional responsibilities 9 Preventative Strategies for Partner Agencies and Providers 10 Targeted Prevention 11 The Local Authority as the Lead Coordinating Agency 11 Police as Lead Investigating Agency 12 Investigation within the Health Service LEGAL REFERENCE 13 Section 47 National Assistance Act Section 7 Mental Health Act 1983 Guardianship 14 Section 127 of the Mental Health Act Section 135 Mental Health Act Section 136 Mental Health Act Disability Discrimination Act Non-Molestation Order Section 42 of the Family Law Act Protection from Harassment Act Crime and Disorder Act Section 17 of the Crime & Disorder Act Section 115 of the Crime & Disorder Act Data Protection Act Human Rights Act Youth Justice and Criminal Evidence Act Care Standards Act Freedom of Information Act Sexual Offences Act Protection of Vulnerable Adults Scheme The Carers (Equal Opportunities) Act Domestic Violence, Crime and Victims Act Mental Capacity Act The Fraud Act The Safeguarding Vulnerable Groups Act Health and Social Care Act Health and Social Care Act 2008 (Regulated Activities) Regulations The Equality Act Civil Law - Duty of Care 28 Customer Care 28 Deprivation of Liberty Safeguards 29 Duty of Confidence FURTHER LEGAL GUIDANCE 30 Multi Agency Public Protection Arrangements (MAPPA) 30 Multi Agency Risk Assessment Conference (MARAC) 30 Rev April 2012 Page: 3 COM.CARE 4.4 Page

4 No Secrets 31 Other procedures that may be relevant 31 Physical Intervention 31 Psychotherapy and Counselling 33 Court Appointed Deputy 33 Social Security Appointees 34 Sub Judice 34 Supporting People 34 The Independent Mental Capacity Advocacy Service 35 The Independent Safeguarding Authority 37 Trading Standards Role 38 The role of the Care Quality Commission and Essential Standards 40 Department of Health Guidance GUIDANCE 41 Preventing Abuse 41 Definitions 41 Specific Indicators of Abuse 45 General Indicators of Abuse 45 Reactions to Abuse 50 Risks Arising from Self Neglect 50 Respect 51 Assessing the Seriousness of Abuse 52 Examples of types of abuse 54 Responsibilities of the Adult Safeguarding Leads 55 Consent The Basic Principles 57 Consent and the Sharing of Information 57 Decision to Proceed 58 Decision not to Proceed 59 False, Malicious and Unfounded Allegations 60 Confidentiality 60 The Principles of Best Interest and Duty of Care 61 Service User Views 62 Perpetrators 62 When the Alleged Perpetrator is a Service User 62 Other possible perpetrators 63 When the Alleged Perpetrator is an Independent Service Provider Employee 64 Vulnerable Adults who make Repeated or Unfounded Allegations 64 Whistleblowing 64 Recording the Investigation 65 Conducting the Interview 66 Provision of the Services of an Appropriate Adult 66 When to have Strategy Discussions and Meetings 67 Strategy Discussion and/or Professionals Meetings 67 Strategy Meeting 68 Strategy Meetings Concerning Adults with Impaired Mental Capacity 69 Guidance for Chairing Strategy Meetings 69 Tape Recording of Meetings 70 Minute Taking 70 Feedback to people involved 71 Rev April 2012 Page: 4 COM.CARE 4.4

5 Carrying Out Investigative Interviews Criminal Offences 72 Managing Disclosures 72 Recognition of Limitations to Action 73 Monitoring and Review 74 Case Reviews 75 Anonymous Referrals 76 Large-scale Enquiry 76 Concerns about Quality of Care 77 Direct Payments 78 Self Directed Support 79 Managing Risks and Self Directed Support 79 If the Vulnerable Adult Moves to another Area during an Enquiry 79 Health Staff/Hospital Setting 80 Commissioners of Services and Contract Monitoring 80 Inter-Authority Investigations 81 Revisions made to these procedures in April Rev April 2012 Page: 5 COM.CARE 4.4

6 1. INTRODUCTION The aim of all agencies and individuals working in social and health care should be to safeguard vulnerable people from abuse and to ensure that people who have been abused receive support and protection from further abuse. These operational instructions set out the procedures to be taken when abuse is disclosed, identified, suspected or alleged. The accompanying practice guidance provides valuable help in: defining abuse recognising and understanding how abuse can occur; reducing the risk of abuse happening These procedures have been produced to strengthen our existing arrangements and meet the requirements of No Secrets Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse (Department of Health 2000) which: is a guidance document issued under Section 7 of the Local Authority Social Services Act 1970 applies to all statutory agencies is a guidance with which every agency has to comply unless local circumstances indicate exceptional reasons that justify a variation identifies the local authority as the lead agency requires that a senior manager should be identified in each agency to take the lead role These procedures replace the existing Cambridgeshire County Council Procedures (revised in December 2008). Rev April 2012 Page: 6 COM.CARE 4.4

7 2. STANDARDS These procedures will help staff to meet the following core quality standards which are set out in the Better Care, Higher Standards Charter: All adults who may be eligible for community care services should be treated with respect, courtesy and dignity. There is clear and easily available information about the services and the criteria used to decide who is eligible for help, support and services. Decisions about whether to offer help or services are based on a clear assessment of need. Service users are fully involved and supported in the decisions that are made about the help they need and the services that are provided. Work is undertaken in partnership with families, whilst acknowledging that the welfare and development of children in these families is paramount. The needs and views of carers are taken into account and they are supported in their caring responsibilities. People are kept fully informed about what is happening, the support and services provided. Clear and accurate records of all work are kept and apart from exceptional circumstances, people have access to what is written down about them. Personal information is treated as confidential and apart from exceptional circumstances, is not shared with other people without the agreement of the person to whom it relates. If people are unhappy with any aspect of the services provided they are encouraged to complain and it is made easy for them to do so. Rev April 2012 Page: 7 COM.CARE 4.4

8 3. PARTNER AGENCIES Cambridgeshire Adult Safeguarding Board has agreed these Guidance and Procedures with its partner agencies. The aim of the procedures is to ensure that all responsible agencies and individuals work together to prevent abuse and safeguard adults where possible and where preventative measures fail, to deal sensitively and effectively with incidents of abuse. The Cambridgeshire Adult Safeguarding Board will ensure the co-ordination and implementation of these guidance and procedures. The composition of the Board is: Addenbrookes Hospital, Cambridge University Hospital NHS Foundation Trust Age UK Cambridgeshire Anglia Ruskin University Cambridgeshire and Peterborough NHS Foundation Trust Cambridgeshire Community Services NHS Trust Cambridgeshire Constabulary Cambridgeshire Fire and Rescue Services Cambridgeshire Learning Disability Partnership Care Quality Commission Children Safeguarding and Standards Service, CCC Physical Disability and Sensory Services, CCC East of England Ambulance Service NHS Trust Excelcare Holdings representing Residential and Nursing Care Providers Fenland District Council representing District Councils across Cambridgeshire Granta Housing representing Registered Social Landlords Hinchingbrooke Health Care NHS Trust HMP Whitemore Hunts Mind Legal Services, CCC NHS Cambridgeshire Partnerships in Care Procurement (Social Care), CCC Supporting People, CCC VoiceAbility All of the above agencies are represented on the Cambridgeshire Adult Safeguarding Board. The principles of these guidance and procedures are to: actively promote the empowerment and well-being of vulnerable adults through the services we provide act in a way which supports the rights of the individual to lead a life based on self determination and personal choice recognise that some people are unable to make their own decisions and/or to protect themselves and their assets Rev April 2012 Page: 8 COM.CARE 4.4

9 acknowledge and except that the right of self-determination can involve risk and ensure that such risk is recognised and understood by all concerned, that risk is minimised through collaborative and collective risk management processes ensure that the law and statutory requirements are known and used appropriately so that vulnerable adults receive the protection of the law and access to the judicial process each partner organisation is committed to providing training and support to its staff on this issue There are many other policy areas that overlap with, or are relevant to, safeguarding adults, therefore safeguarding adults practice should be coordinated with there use. Professional responsibilities Some workers implementing these procedures may be registered practitioners with a relevant body and/or have their work and conduct governed by them. The principal organisations are listed below. These procedures have been written to compliment their existing codes of conduct, and the organisational and legislative requirements placed on workers and volunteers. Any safeguarding adults work undertaken should therefore be consistent with these: General Social Care Council, Nursing and Midwifery Council, Health Professions Council, General Medical Council, General Optical Society, General Dental Society, Royal Pharmaceutical Society of Great Britain, Registered Health and Social Care Providers are partners with commissioners in safeguarding adults at risk in their care. Provider organisations registered with national regulators are required under the relevant regulations and Essential Standards of Quality and Safety to take steps to safeguard and promote the welfare of people using services. Regulations and Essential Standards place obligations on registered providers to safeguard and promote the health and welfare of people using services. Individual provider policies and procedures should be checked for consistency with this guidance. All partner agencies and providers should have: procedures for dealing with suspected abuse policies which are made clear to staff, to adults in their care, and to the families and carers a designated safeguarding manager periodic training to update and refresh the knowledge of existing staff Rev April 2012 Page: 9 COM.CARE 4.4

10 Preventive Strategies for Partner Agencies and Providers All agencies involved with the care of adults at risk should have, as a primary aim, a clear commitment to the prevention of abuse. They should have a preventive approach, incorporating rigorous staff recruitment, training, supervision and appraisal, and a set of procedures clearly linked to those set out in this guidance. Openness to complaint, awareness of the risk of abuse, and a willingness to involve people who use services and their carers in the running of the organisation are all indicators of this approach. Prevention, by definition, should target the causes of and opportunities for abuse and neglect, and depends in the first instance on effective partnership working between the Partner Agencies on the Cambridgeshire Adult Safeguarding Board. There are four strands to prevention: Promotion of a culture which supports transparency and prompt reporting of suspicions or allegations. Autonomy of people using services and a high quality of life for them. Awareness that abuse can happen and will not be tolerated. Learning from cases of abuse and near misses. Specific preventive measures should be undertaken by Partner Agencies: communication with people using services, carers and the wider community about the nature of abuse and about local safeguarding activity embedding the principles and practice of safeguarding adults in the management, expectations and professional practice of local service commissioners and providers in health and social care joint training across local agencies in safeguarding procedures raising awareness among and joint training for practitioners in all relevant service areas about the incidence, causes, manifestations and effects of abuse, as well as the operation of the Independent Safeguarding Authority (ISA), and Criminal Records Bureau (CRB) following up all cases of suspected abuse six months after the initial alert monitoring of local incidence of abuse, analysis of relevant Serious Incidents (SIs) and Serious Case Reviews (SCRs) Other broader measures could include: calculation and mapping of local prevalence monitoring local ambulance activity, hospital admissions and Accident and Emergency (A&E) attendance the provision of a safe context for reporting abuse screening of known, at-risk populations for example, homeless people, older people, frequently seeking support from A&E or their GP surgeries upgrading and refurbishment of some care settings to support safe practice Rev April 2012 Page: 10 COM.CARE 4.4

11 Targeted Prevention Research shows that a significant number of abuse incidents involve health and social care staff. This fact places a responsibility both on the staff themselves and on those responsible for their management and supervision, to ensure that they are safe to work with vulnerable adults. Local authority commissioners must ensure that their contracting processes are clear about the obligations of providers to safeguard vulnerable adults in their care. Commissioners and providers in both health and social care are partners in preventing abuse. The processes and checks, for people who work with adults and how they work must include: staff recruitment, including the development of procedures along the lines of safer recruitment, and effective checks of applicants identity and work records staff induction and initial training, especially concerning professional standards, policy and procedures and the possibility of abuse, and staff retention, including supervision, support and appraisal the policies and procedures staff are expected to follow staff in-service training and development Managers, agencies and professionals share responsibility for ensuring that staff are fit for the work they are employed to deliver - whether as a home care worker, residential worker, nurse, social worker or any other relevant professional. Ensuring the suitability of care workers and other relevant professionals has become a national priority, leading to the development of a streamlined vetting and barring scheme. The Local Authority as Lead Co-ordinating Agency The local authority will retain responsibility for co-ordination and monitoring of the operation of the Adult Safeguarding Guidance and Procedures and review of practice through the Cambridgeshire Adult Safeguarding Board. The Adult Safeguarding and Quality Manager will feed back from all partner agencies about the effectiveness of this guidance and procedure and for keeping them refreshed and up-to-date in response to case experience and changing government guidance and legislation. Rev April 2012 Page: 11 COM.CARE 4.4

12 Police as Lead Investigating Agency In cases where a criminal prosecution is possible, whilst adult services will continue to co-ordinate the setting up of strategy meetings and case conferences, the Police will take the lead role with the gathering of evidence. Police investigations will be governed by the Police and Criminal Evidence Act (PACE) in terms of interviewing practices, the involvement of appropriate adults (for vulnerable suspects) and the collection and analysis of evidence. For vulnerable suspects, the Police will adhere to good practice as set out in the Home Office Guidance, Achieving Best Evidence, the Police will work closely with adult services to ensure that good communication is maintained during the investigation and the welfare of any vulnerable adult involved is prioritised. Investigation within the Health Service Health Service partner agencies are required by their governance arrangements to report allegations of abuse through serious incident reporting and to mount internal investigations under these arrangements. These investigations will be notified to the relevant Adult Safeguarding Lead as soon as possible and at the strategy meeting (or discussion), the person who will undertake the investigation identified and agreement reached as to when and how and with whom the findings will be shared. It may be agreed that an internal investigation will satisfy the purposes of the safeguarding enquiry, provided that the findings can be shared by all agencies represented and the vulnerable adult and their representatives. Agencies will have their own operational policies and internal procedures applicable to their staff, which should be read in conjunction with these procedures. Rev April 2012 Page: 12 COM.CARE 4.4

13 4. LEGAL REFERENCE If a practitioner has any enquiries about legal issues relating to adult safeguarding, they should contact their employer s legal section after seeking authorisation from their manager. The legal section of this document sets out legislation and other law relevant to adult safeguarding which is ill defined legally. The following therefore is by no means exhaustive, but provides an overview. It is inevitably selective both in terms of what is included and in how much detail. It provides a guide and a set of pointers; clearly in particular cases, the original legislation or guidance should be consulted and legal advice sought. The full text of legislation and guidance can be found relatively easily on the Internet. For example: Department of Health: Health/social care policy, guidance, including No Secrets Office of Public Sector Information: Legislation, some of it amended to reflect changes since its original enactment British and Irish Information Legal Institute (BAILII): Legal cases Department of Constitutional Affairs: Mental capacity law Crown Prosecution Service: Guidance on prosecution matters etc Ministry of Justice: Criminal issues, vulnerable witnesses, multi agency public protection etc. Sometimes, a direct search (using a search engine such as Google) finds the relevant document more easily and quickly than a search on the particular website. Section 47 National Assistance Act 1948 Compulsory removal to suitable premises, to secure care and attention for persons who: - Are suffering from grave chronic disease; OR Are aged, infirm or physically incapacitated and living in unsanitary conditions; AND Rev April 2012 Page: 13 COM.CARE 4.4

14 Are unable to devote to themselves, and are not receiving from other persons, proper care and attention. The process is initiated by a community physician. S/he must certify that removal is necessary: in the person's own interests; or for preventing injury to the health of others; or for preventing serious nuisance to others The Application is made by the local housing authority (unless it is a unitary council, this will be the local district council). Process completed by magistrates' court order. Seven days notice of application must be given. Detention may be authorised for up to three months, with unlimited power to extend. There can be no application to revoke an order made under Section 47 of the 1948 Act within six weeks of the order being made. Power to make emergency order ex parte on the certificate of community physician plus another medical practitioner. (National Assistance (Amendment) Act 1951). Section 7 Mental Health Act 1983 Guardianship Background A person who acts as guardian has the power to require the patient to take certain action. The guardian s three powers are: to require the patient to live at a specified place to require the patient to attend a particular place for medical treatment to require access to be given at any place where the patient is living to a named individual, e.g. a doctor, approved mental health practitioner (AMHP) or other specified persons A Guardianship order gives the guardian the power to convey the patient to that place against their will. Once the patient is resident in the specified place; they can be conveyed back there if they abscond. The Person must be suffering from any disorder or disability of mind as defined by the Mental Health Act. AND Guardianship must be necessary for his/her own welfare or for the protection of others. Rev April 2012 Page: 14 COM.CARE 4.4

15 An application for a guardianship order can be made by an Approved Mental Health Practitioner (AMHP), or a Nearest Relative and is made to the local authority and not to a court. (It should be noted that any application made by an AMHP must be founded on two medical recommendations, one of which must be made by a psychiatrist). The term Nearest Relative is a technical one and is defined by Section 26 of the 1983 Act. For the purposes of the Mental Health Act 1983, the term "nearest relative" is applied to a person who has certain rights in connection with the treatment and care of a mentally ill person. The nearest relative is the person who comes highest in this list: husband or wife (this includes a partner who has lived with the patient as their husband or wife for more than six months (and includes gay or lesbian partners and civil partnerships) son or daughter mother or father brother/sister grandparent grandchild uncle/aunt nephew/niece the eldest or elder of two or more relatives in any one of the above will be considered the nearest relative The only exceptions to this list are that: if the patient normally lives with a non-relative, and has been doing so for not less than five years, that person is regarded as the nearest relative if the highest person on the list is living abroad, or is under 18, or is not allowed access to the patient for legal reasons, then the next eligible person is regarded as the nearest relative if the patient is under 18 and in the care of a local authority or another person, then that authority or person will take priority over everyone in the list (except a spouse) if the patient is under 18 and is subject to guardianship, the guardian will be regarded as the nearest relative Any of the patient s relatives, or any person she or he has been living with, or a local social services authority, may apply to the county court to be regarded as the nearest relative. Likewise a patient can apply to the county court to remove or change a current nearest relative. A guardian has no powers in relation to patients property and no power to compel a patient to undergo medical treatment without the patient s consent. If a guardianship application is being considered, the AMHP is under a duty to consult with the nearest relative to see if he or she objects to the application being made. If the nearest relative does object then the guardianship order cannot be Rev April 2012 Page: 15 COM.CARE 4.4

16 made unless the local authority applies under Section 29 of the Mental Health Act 1983 to the County Court for the existing nearest relative to be displaced and another person, usually the local authority, to act in his or her place. The grounds on which such an application can be made include that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness, that the nearest relative of the patient unreasonably objects to the making of an application for guardianship in respect of the patient or that the nearest relative of the patient has exercised without due regard to the welfare of the patient or interests of the public his power to discharge the patient from hospital or guardianship under this part of this act, or is likely to do so. Two examples of scenarios when guardianship could be considered: the patient is living at home with carers and there is evidence that the carers are abusing the patient, a guardianship order could be used to provide a legal framework for enabling the person to live elsewhere there is a dispute between relatives as to where the patient should live, a guardianship order could state where the patient is to live Any worker considering the suitability of the use of guardianship who is not an AMHP should take advice from an AMHP in their locality team. Section 127 of the Mental Health Act 1983 Both the Mental Health Act 1983 and the Mental Capacity Act 2005 contains offences concerned with the ill-treatment or wilful neglect of people with mental disorder or mental incapacity. However ill treatment and wilful neglect is not defined in the Mental Health Act 1983 but covers most, if not all forms of neglect. Section 127 of the Mental Health Act 1983 relates to a person who has any one of a wide range of conditions categorised as mental disorder. Wilful bullying or behaviour likely to engender fear may amount to ill treatment. This includes deliberate conduct by someone that could properly be described as ill treatment whether or not that ill treatment damaged or threatened to damage the physical or mental health of the victim. For an offence to be proven under Section 127, the alleged perpetrator should have been aware that he or she was inexcusably ill-treating that other person or was reckless in this regard. Carers of vulnerable people who wilfully fail to provide adequate food; clothing, medical aid or accommodation for them may be guilty of this offence. Rev April 2012 Page: 16 COM.CARE 4.4

17 Signs to watch for include: failing to thrive, personal hygiene issues, always being hungry, being in fear, hazards within the home and being left alone The most serious offences may come about in circumstances of neglect. Sometimes these situations can only be properly recorded and evidenced by Police exercising their powers to investigate crime. The Police should always be informed where serious neglect is likely to cause suffering. The offence is triable either way and the penalties are: on summary conviction, a maximum prison term of 12 months and/or a fine not exceeding the statutory maximum on conviction on indictment, a maximum prison term of 5 years and/or a fine These penalties are more severe than those imposed by the offences of ill treatment and neglect under the Mental Health Act. Section 135 Mental Health Act 1983 This section allows for a person who is believed to be suffering from mental disorder to be removed to a Place of Safety by the Police. A warrant has to be obtained from a Justice of the Peace by an Approved Mental Health Professional (AMHP). The warrant allows the Police to enter the premises with force if necessary and remove the person to a place of safety for up to 72 hours. The AMHP and a doctor must also be in attendance at the time the warrant is exercised. The 72 hour period allows for a full assessment of the person to be carried out. There must be reasonable cause to suspect that the person is suffering from a mental disorder and there should be evidence that the person is being ill treated or neglected or that they live alone and are unable to care for themselves. Any worker considering the suitability of the use of the above section who is not an AMHP should take advice from an AMHP in their locality team. Section 136 Mental Health Act 1983 This section allows a Police Officer to remove a person from a place to which the public have access, who appears to be suffering from a mental disorder and who is in immediate need of care and control, to a place of safety for up to 72 hours. The Police Officer must feel it is in the interests of the person or for the protection of the public to do this. An assessment of the person must take place within 72 hours by an AMHP and a doctor. Disability Discrimination Act 1995 The Act gives disabled people important new rights to challenge discrimination on the grounds of disability. Rev April 2012 Page: 17 COM.CARE 4.4

18 Non-Molestation Order Section 42 of the Family Law Act 1996 This provision prohibits a person (the accused) molesting another person (the complainant). In order to be able to use this legislation the complainant must be associated with the complainant. An Associated person is defined widely and includes married couples, cohabitants, those living in the same household, relatives and engaged couples (as long as there is an agreement to marry). The complainant is the only person who can start proceedings. In deciding whether or not to make an order, the Court shall have regard to all circumstances including the need to secure the health, safety and well-being of the complainant. The complainant can start proceedings in respect of particular acts of molestation or general ones. In other words, it is possible for a complaint to be made even though the behaviour has only happened once. Breach of a non-molestation order is contempt of court and could lead to arrest and then a fine or imprisonment. Protection from Harassment Act 1997 A person must not pursue a course of conduct, which amounts to the harassment of another and which that person knows or ought to know amounts to harassment of the other. The alleged harasser ought to know that their behaviour amounts to harassment if a reasonable person in possession of the same information would think that the course of conduct amounted to harassment. Whereas a non-molestation order under the Family Law Act 1996 could be granted for one act of harassment, the 1997 Act can only be used if there has been more than one act i.e. a course of conduct. There are three defences to a charge of harassment: that the course of conduct was pursued for the purpose of preventing or detecting crime that the course of conduct was pursued in accordance with a legal requirement or duty that in the particular circumstance the pursuit of the course of conduct was reasonable An action under the 1997 Act can be pursued as a criminal or civil matter. If it is pursued as a criminal matter, a person found guilty of harassment can be jailed and the complainant awarded damages. If the complainant decides to start civil proceedings, they could ask for an injunction to prevent further occurrences of the harassment and damages for the mental distress already caused. Rev April 2012 Page: 18 COM.CARE 4.4

19 Crime and Disorder Act 1998 The Act is principally concerned with youth justice. However, it does introduce powers to apply for anti social behaviour orders, which could be used, for example, to prevent harassment of vulnerable adults in the community. Section 115 provides for full disclosure of information by any person provided the disclosure is to an appropriate public authority, for example the local authority or the Police, and is necessary or expedient for the purposes of any provision of the Act. Section 17 Crime and Disorder Act 1998 This directs that the Police and Local Authorities have an obligation to reduce crime, i.e. in this context prevent abuse. Section 115 Crime and Disorder Act 1998 This directs that the Police and Local Authorities share information to prevent crime. Data Protection Act 1998 This act replaces the Data Protection Act 1984 and extends Data Protection principles to manual files as well as computerised. Care must be taken to protect confidential information relating not only to service users, but also to relatives, friends and carers who may contribute to community care plans and assessments. No part of the data protection regulatory framework serves to prevent the responsible dissemination of relevant personal information in relation to the investigation of suspected, alleged, or actual abuse of a vulnerable adult. The Information Commissioner's Office has issued general guidance on the preparation and use of information sharing protocols. Human Rights Act 1998 Actions taken by agencies in accordance with this protocol have the potential to interfere with the rights and freedoms of an individual protected by the European Convention on Human Rights. This is particularly true of: article 2, right to life, article 3, the right not to be subjected to torture, or inhuman or degrading treatment, article 5 right not to be deprived of liberty other than in specified circumstances and only then in accordance with legal procedures, article 8, the right to respect for private and family life. Where an interference with a right is anticipated, agencies must ensure their actions comply with the legislation and are necessary and proportionate to the level of harm threatened to individuals. NB. The needs of a person that are covered by article 8 should be addressed before the needs of the person that are covered by article 5. Rev April 2012 Page: 19 COM.CARE 4.4

20 Youth Justice and Criminal Evidence Act 1999 The Act contains a range of measures designed to help young, disabled, vulnerable or intimidated witnesses give evidence in criminal proceedings. The measures include: physical measures to reduce the stress of giving evidence at trial (such as informal dress, screens, live link CCTV and the use of pre-recorded interviews) restrictions on the freedom of defendants to cross-examine their alleged victims personally further restrictions on publishing information that might reveal the identity of a witness These measures were proposed in Speaking Up for Justice (June 1998), the report of an interdepartmental review of the treatment of vulnerable or intimidated witnesses in the criminal justice system. The Act sets out who is eligible to apply for special measures to help them give evidence in court. There are three categories: children under the age of 17; those who suffer from mental or physical disorder, or have a disability or impairment that is likely to affect their evidence; and those whose evidence is likely to be affected by their fear or distress at giving evidence in the proceedings. Social Care Staff may be involved in such interviews, but have first to be trained on the Adult Safeguarding Leads 5 day training course. Care Standards Act 2000 This is a major piece of legislation introducing radical reforms to the delivery of social care services. The Act has at its heart two key aims first to protect vulnerable people from abuse and neglect, and secondly, to promote the highest standards of quality in the care that people receive, whoever is providing it. The elements most relevant to the care of adults are: the establishment of a new regulatory body for social care, private and voluntary health care services in England the national care standards commission, this became the Commission for Social Care Inspection on the 1 April 2004, now known as the Care Quality Commission the establishment of a new council to register social care workers, set standards in social care work and regulate the training of social workers the provision of powers for the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults new provisions for the regulation of nursing and domiciliary care the provision of power for the Secretary of State to issue statutory guidance to local authorities relating to their power to charge for non-residential welfare services Rev April 2012 Page: 20 COM.CARE 4.4

21 Freedom of Information Act 2000 The Freedom of Information Act 2000 received Royal Assent in November 2000, and came fully into force in January The Freedom of Information Act deals with information other than personal information (which continues to be dealt with under the rules of the Data Protection Act 1998). Sexual Offences Act 2003 Rape and other sexual offences are dreadful crimes, which deeply affect the lives of victims and their families. The law needs to recognise the damage done by sexual offences, while protecting the right of adults to a private sex life. The Sexual Offences Act is the first major overhaul of sexual offences legislation for more than a century, setting out a strong, clear and modern approach to this sensitive area of the law. The new laws put victims first. They are designed to protect everyone adults, as well as children and vulnerable people from abuse and exploitation. They reflect the reality of life today and set out clear boundaries about what is, and is not, acceptable. They are non-discriminatory, so that men, women and people of all sexual orientations are equally protected. They set down strong penalties for sexual crime, and give the courts and Police the clarity they need to do their job and help protect the public from abusers. On top of the legislation itself, support for victims of sexual crime is being improved all the time, with better methods of Police investigation and increased support services for victims and witnesses. Protection of Vulnerable Adults Scheme 2004 The Protection of Vulnerable Adults (POVA) Scheme, as set out in the Care Standards Act 2000, was implemented on a phased basis from 26 July At the heart of the scheme was the POVA list, through referrals to, and checks against, the list, care workers who had harmed a vulnerable adult, or placed a vulnerable adult at risk of harm (whether or not in the course of their employment) will be banned from working in a care position with vulnerable adults. As a result, the POVA scheme significantly enhanced the level of protection for vulnerable adults. The POVA guidance set out what was required of providers of care, employment agencies and businesses, and other stakeholders affected by the implementation. It covered both England and Wales and refers to care of vulnerable adults aged eighteen years or over. Rev April 2012 Page: 21 COM.CARE 4.4

22 The Carers (Equal Opportunities) Act 2004 The first piece of carers legislation was introduced as The Carers (Recognition and Services) Act 1995, followed by the Carers and Disabled Children s Act Due to the limited scope of the Acts, The Carers (Equal Opportunities) Act 2004 came into force in England on the 1 April This promoted the rights of carers further by placing a duty on local authorities to inform carers of their rights to an assessment, information and consider carer s outside interests and ability and willingness to continue in the role during the assessment process. It also gives local authorities new powers to enlist the help of housing, health, education and other local authorities in providing support to carers. The first national strategy for carers was introduced in 1999 and was updated by Carers at the heart of 21 st -century families and communities: A caring system on your side. A life of your own (2008). Domestic Violence, Crime and Victims Act 2004 Creates an offence of "causing or allowing the death of a child or vulnerable adult". The new offence of "causing or allowing the death of a child or vulnerable adult" was designed to deal with scenarios in which a child or vulnerable adult dies as a result of neglect or abuse and it is not clear which member of their household was responsible for the death. The act also introduces the establishment and conduct of domestic homicide reviews with a view to identifying the lessons to be learnt from the death. Mental Capacity Act 2005 The Mental Capacity Act 2005 sets out a statutory framework for acting and making decisions on behalf of adults aged 16 years and over who lack the mental capacity to act or make such decisions for themselves. It sets out principles and mechanisms for making welfare decisions, health care decisions and financial decisions for people without the capacity to make their own decisions. It also makes it clear as to who can make decisions on their behalf, in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity. The Act is underpinned by a set of five key principles: - a presumption of capacity every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise the right for individuals to be supported to make their own decisions people must be given all appropriate help before anyone can conclude that they cannot make their own decisions that individuals must retain the right to make what might be seen as eccentric or unwise decisions best interests anything done for or on behalf of people without capacity must be in their best interest least restrictive intervention anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedom Rev April 2012 Page: 22 COM.CARE 4.4

23 What acts and decisions are not covered? There are certain decisions which can never be made on behalf of a person who lacks capacity, either because they are so personal to the individual concerned or because they are governed by other legislation. These include: decisions concerning family relationships including consent to marriage or civil partnership, sexual relationships, divorce, placing a child for adoption, taking over parental responsibility for a child or consent to fertility treatment decisions to give or to consent to treatment for mental disorder of people who are liable for detention and treatment under the Mental Health Act 1983 decisions on voting or casting a vote at an election or a referendum on behalf of a person lacking capacity to vote Who is affected by the Act? The provision for decision making or taking action under the Act will affect adults over 16 years who lack capacity to make their own decisions as a result of an impairment of, or a disturbance in, the functioning of the mind or brain. The Act also sets out fundamental legal rules that apply to everyone working with and/or caring for adults who lack capacity, including family members, professionals and other carers. The rules also apply to people appointed in a formal capacity to act as an attorney or deputy for a person lacking capacity. What does the Act do? The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes. The Act deals with the assessment of a person's capacity and acts by carers of those who lack capacity. Assessing lack of capacity - The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a "decision-specific" test. No one can be labelled 'incapable' as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person's age, appearance, or any condition or aspect of a person's behaviour which might lead others to make unjustified assumptions about capacity. Best Interests - Everything that is done for or on behalf of a person who lacks capacity must be in that person's best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person's best interests. A person can put his/her wishes and feelings into a written statement if Rev April 2012 Page: 23 COM.CARE 4.4

24 they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted. Acts in connection with care or treatment - Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person's body or property in the ordinary course of caring. For example, by giving an injection or by using the person's money to buy items for them. Restraint/Deprivation of Liberty - Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm. The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity: Lasting Powers of Attorney (LPAs) - The Act allows a person age 18 and over to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions. Court Appointed Deputies - The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity. Court of Protection - The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges. Public Guardian - The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the Police and Adult Social Care, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions. Rev April 2012 Page: 24 COM.CARE 4.4

25 The Act also includes three further key provisions to protect vulnerable people: Independent Mental Capacity Advocate (IMCA) - An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them (i.e. no friends or family). The IMCA makes representations about the person's wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. Advance decisions to refuse treatment (ADRT) - Statutory rules with clear safeguards confirm that people aged 18 or over may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands "even if life is at risk". A Criminal Offence (Section 44) - The Bill introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years. The Act also sets out clear parameters for Research: Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an "appropriate body" (normally a Research Ethics Committee) agrees that the research is safe, relates to the person's condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights. Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately. Transitional regulations will cover research started before the Act where the person originally had capacity to consent, but later lost capacity before the end of the project. The Code of Practice: The Code of Practice to accompany the Act, provides guidance to those working in a professional capacity with and/or caring for adults who lack capacity. For example, Attorneys, Deputies, IMCAs, Advocates, Professionals and paid carers will all have a duty to follow the Code. Further Information: Cambridgeshire County Council Mental Capacity Act web page: Rev April 2012 Page: 25 COM.CARE 4.4