Duty of public authorities (and contractors) not to act in ways incompatible with a Convention Right.

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1 Appendix F The Legal Framework This section lists some of the key legislation that may be relevant in the management of individual Adult Safeguarding cases. In any situation where the Adult Safeguarding Inquiry or Adult Safeguarding Plan is likely to have legal implications, it is essential that appropriate legal advice is obtained. 1. Human Rights Human Rights Act 1998 Duty of public authorities (and contractors) not to act in ways incompatible with a Convention Right. Section 1 Convention Rights Article 2: Right to Life Article 3: Prohibition of torture, inhuman or degrading treatment or punishment Article 4: Prohibition of slavery or forced labour Article 5: Liberty and security of the person Article 6: Right to a fair trial Article 8: Right to respect for family and private life Article 9: Freedom of religion Article 10: Freedom of expression Article 11: Freedom of assembly and association Article 12: Right to marry and found a family Article 14: Prohibition of discrimination in enjoyment of convention rights First Protocol Article 1: Protection of property Article 2: Right to education Public Interest Disclosure Act 1998 Requirement of organisational procedures to enable staff to raise serious concerns in confidence. Updated March

2 2. Assessment and Services NHS and Community Care Act 1990 Section 46 Definition of community care services for disabled people as services that a Local Authority may provide or arrange under: National Assistance Act 1948, Sections 21 and 29 Health Services and Public Health Act 1968, Section 45 National Health Service Act 1977, Section 21 and Schedule 8 Mental Health Act 1983, Section 117. Section 47 Local Authority duty to assess a person s need for community care services and services under Chronically Sick & Disabled Person s Act, Section 2. Section 48 Inspection of premises where community care services are provided and private interview of service users in investigating a complaint. Disabled Persons (Services, Consultation and Representation) Act 1986 Entitlement of disabled people to a written assessment of need. Carers (Recognition and Services) Act 1995 Carer s entitlement to an assessment when cared for person assessed. Disability Discrimination Act 1995 Disabled people not to be discriminated against unreasonably in employment, or in the provision of goods or services. Housing Act 1996 Part VII Local authority duty to provide accommodation for homeless people who are vulnerable because of old age, mental illness, learning disability, physical disability or other reason. Carers and Disabled Children Act 2000 Section 1 Carer s right to an assessment irrespective of assessment of person cared for. Updated March

3 3. Compulsory Intervention Public Health Act 1961 Power to enter and cleanse premises. National Assistance Act 1948 Section 47 gives power to a local authority to apply to a Magistrates Court to remove a person from home on the grounds that: The person is suffering from grave chronic disease or, being aged, infirm or physically incapacitated is living in unsanitary conditions; and That the person is unable to devote to himself, and is not receiving from other persons, proper care and That his removal from home is necessary, either in his own interests or for presenting injury to the health of, or a serious nuisance to, other people. In practice this section of the National Assistance Act is rarely used. However, its use should be considered if there is no alternative and the risk is considered to be very grave. An order will last up to 3 months depending on the circumstances in which it was obtained. Only in exceptional circumstances would Section 47 allow a local authority to take into residential accommodation an adult who was the subject of verbal or physical maltreatment. A modification of the Section 47 procedure is provided by the National Assistance (Amendment) Act 1951 to deal with situations in which it is necessary to remove the adult without delay. An order can be made which will last up to 21 days. National Assistance (Amendment) Act 1951 Section 1 - Removal to care of a person suffering from grave chronic disease, or aged, infirm or physically incapacitated, living in unsanitary conditions and not receiving care. Mental Health Act 1983 Sections 2-5 Compulsory hospital admission for observation, assessment and treatment. Section 7 Guardianship. Section 115 Powers of entry and inspection where a mentally ill person is not receiving proper care. Updated March

4 Section 117 After care following detention in hospital. Section 135 Magistrate s warrant for search and removal to a place of safety of a person suffering from neglect, ill treatment or not kept under proper control or living alone and unable to care. Section 136 Police power of removal to a place of safety of a person suffering from a mental disorder in a public place. 4. Regulation of Services CQC Launched in April 2004, the Care Quality Commission (CQC) is the single, independent inspectorate for all social care services in England. The Commission was created by the Health and Social Care (Community Health and Standards) Act CQC incorporates the work previously done by: The Social Services Inspectorate (SSI) SSI/Audit Commission Joint Review Team The National Care Standards Commission (NCSC) The Commission has a much wider remit than its predecessor organisations. And its creation is a significant milestone for social care. Bringing together the inspection, regulation and review of all social care services into one organisation creates a more effective and joined up system. Inspects -To inspect the quality and value for money of healthcare and public health Informs - To equip patients and the public with the best possible information about the provision of healthcare Improves - To promote improvements in healthcare and public health Updated March

5 Its main duties in England are to: Assess the management, provision and quality of NHS healthcare and public health services Review the performance of each NHS trust and award an annual performance rating Regulate the independent healthcare sector through registration, annual inspection, monitoring complaints and enforcement Publish information about the state of healthcare Consider complaints about NHS organisations that the organisations themselves have not resolved Promote the co-ordination of reviews and assessments carried out by them and others Carry out investigations of serious failures in the provision of healthcare. 5. Financial Protection Powers of Attorney Act 1971 Enduring Powers of Attorney Act 1985 Remedies/intervention where an individual has capacity to deal with their property and financial affairs 5.1. Where an individual has capacity any practitioner s role is often confined to empowering and informing them of their options. Advocacy maybe an opportunity to explore in certain cases Power of Attorney (POA) An ordinary power of attorney is a deed where one individual gives another individual (attorney) the authority to deal with their property and financial affairs. An ordinary power of attorney can be revoked at any time by the individual who granted it and is automatically revoked if that individual no longer has mental capacity to deal with their property and financial affairs. Therefore any practitioners supporting an individual where financial abuse is suspected should consider the status of the power of attorney Enduring Power of Attorney (EPA) This is the same as an ordinary power of attorney except for the fact that it continues to have effect even if the individual who granted the power no longer has mental capacity to deal with their property and financial affairs. This is subject to the attorney registering the EPA with the Public Guardianship office. (N.B changes to these arrangements will be apparent from April 2007 following the introduction of the Lasting Power of Attorney arrangements under the Mental Capacity Act (2005)). Updated March

6 5.4. If a family member, friend or professional is dealing with the individual s property and finances under a valid power of attorney, or EPA and there are concerns that they are financially abusing the individual or the individual no longer wishes them to act on their behalf, the individual is able to revoke the POA or EPA Conversely if an individual no longer wishes to deal with their own property and financial affairs they are able to execute a POA or EPA. Remedies and interventions where an individual does not have capacity to deal with their property and financial affairs 5.6. Appointeeship If an individual is unable to deal with their own property and financial affairs and their main or only source of income is from benefits, an application can be made to the claims supervisor of the Benefits Agency for an Appointee to be put in place. An appointee is able to claim and spend the individual s benefit on their behalf. A form BF56 needs to be completed A family member of friend can be an appointee. Outside of these relationships the Local Authority, solicitor or manager of a home can be an appointee. However it must be considered whether managers and staff of care homes may be considered to have a conflict of interest and should only be appointed as a last resort. Residential and Nursing Home providers should be aware of the CQC directives on interventions in such cases. Individuals are not paid for taking on this role An Appointee must only spend any benefits received on the individual s own costs and the benefits must be applied in the individuals best interests. Appointees should keep records and receipts of all money spent The extent of the Appointee s power is to deal with the individual s benefits or pension. They do not have authority to make other decisions. Appointees should not control the individual s behaviour, contact with others or choice If there are concerns that the appointee is financially abusing the individual, The Department of Work and Pensions should be contacted. They can put a hold on payments whilst any investigations are carried out. It maybe appropriate to involve the Police in such circumstances EPA Sometimes an individual knows their mental capacity may deteriorate in the future and an EPA can be useful in such circumstances. Updated March

7 If there are concerns that the Attorney is financially abusing the individual, the concerns should be passed to the Public Guardianship Office. They will investigate any concerns or complaints and if they are upheld the EPA will be revoked. Again it may be appropriate to consult with the Police in such circumstances Receivership When an individual no longer has capacity to deal with their own property and financial affairs they are no longer able to grant an ordinary power of attorney or an EPA. Also Appointeeship may not be suitable as the individual may have income and capital and other benefits In such circumstances it maybe appropriate to make an application to the Public Guardianship Office for a Receiver to be appointed. It will not be necessary to appoint a Receiver where there is a valid EPA in force A Receiver can be a family member, friend, professional (solicitor etc), the Corporate Director of Adults and Communities Directorate or, as a last resort, the Court of Protection can appoint one of their own appointed solicitors to act as a Receiver. A Receiver has the power to deal with all of the property and financial affairs of the individual. This can include, for example, selling a property, dealing with investments, receiving benefits and other income, paying bills, buying clothing and providing extra comforts such as flowers or hairdressing. A Receiver must act in the individual s best interests and must submit yearly accounts to the Public Guardianship office detailing how property and finances have been dealt with A Court will usually appoint a Receiver when an individual has: More than 16,000 in cash; A property is to be sold; A level of income that the Court considers appropriate to be managed by a Receiver. Mental Health Act 1983 Section Court of Protection powers over the management of property and affairs of person incapable by reason of mental disorder. Section 115 Powers of entry and inspection An approved social worker may at all reasonable times enter and inspect any premises in which a mentally disordered adult is living, if she/he has reasonable cause that the patient is not under proper care. Section 115 does not allow an approved social worker to force entry although obstruction may be an offence under Section 129 and the social worker can apply for a warrant under Section 135. The adult need not be named in this warrant, so this allows for investigation Updated March

8 of suspected mistreatment of people whose identity is unknown but whose whereabouts is known. Section 135 Allows for an approved social worker to apply for a warrant to search for and remove an adult where there is reasonable cause to suspect that an adult is believed to be suffering from a mental disorder, has been or is being ill treated or neglected and not kept under proper control or is unable to care for himself or herself and is living alone. Section 136 Allows for a Police Officer to intervene if the adult is in a public place (e.g. wandering outside their home). 6. Welfare Benefits Agency Arrangements Person nominated someone to collect their benefit. Appointeeship DSS appoint someone to act for person with mental incapacity. Social Security (Claims and Payments) Regulations Criminal Offences Offences Against the Persons Act 1861 Assault which leaves a physical injury. Section 18 Wounding with intent to do grievous bodily harm. Section 47 Assault occasioning actual bodily harm. Vagrancy Act 1824 Offence of indecent exposure. Sexual Offences Act 1956 Offences of rape, buggery and gross indecency. Section 7 Offence for a man to have unlawful sexual intercourse with a woman with severe learning difficulties. Updated March

9 Section 9 Offence to persuade women with learning disabilities to have unlawful sexual intercourse with a man. Section 27 Offence for the owner, occupier or anyone acting in the management or control of any premises to induce or allow a woman with severe learning disability to be on the premises for the purpose of unlawful sexual intercourse. A person with a severe learning difficulty may not validly give consent. However, if the other party did not know or suspect that the person had severe learning disabilities, they cannot be held guilty by reason of that incapacity to consent. Assisting a person with a severe learning disability to masturbate could be regarded as indecent assault as they cannot validly give consent, although if the motive is deemed to be decent, all the requirements for the offence would not be met. Sexual Offences Act 1967 A man with a severe learning disability cannot validly consent to a homosexual act. Offence for a male staff member to commit acts of gross indecency with a male patient. Mental Health Act 1959 Section 128 Offence for men involved in running hospitals or nursing homes or as guardians to have unlawful sexual intercourse with a woman having treatment for mental disorder or subject to guardianship. Medicines Act 1968 Offence to administer drugs prescribed for someone else. Mental Health Act 1983 Section 127 Offence for any staff member of a hospital or mental nursing home or any person to ill-treat or wilfully neglect a patient or person who is subject to supervised discharge. Offence for a Guardian or other person who has the care of a mentally disordered person living in the community to ill-treat or wilfully neglect that person. Theft Act 1968 Offence of dishonest appropriation of property belonging to another, intending to deprive the owner permanently. Updated March

10 Race Relations Act 1976 Section 127 Racially inspired offences. Criminal Justice Act 1988 Section 39 Offence of common assault relates to any physical contact without consent, acts or words involving threat of violence. Protection from Harassment Act 1997 Section 1 Offence of harassment. Mental Capacity Act 2005 (into effect April 2007) A broad review of matters relating to welfare, health and financial decision for mentally incapacitated adults. The Act codifies much of the Common Law protection already available. Key areas: Statutory definition of incapacity; Relevant criteria for assessing best interest decision making: Concept of general authority to act without need for formal authority; Creates the concept of Lasting Power of Attorney which repeals the Enduring Powers of Attorney Act 1985; Provides a new Court of Protection to resolve complex issues; Introduces the concept of Court Deputy and Mental Capacity Advocate. The Crime and Disorder Act (1998) Hate Crime Any crime where the perpetrator s prejudice against an identifiable group is a factor in determining who is victimised. Includes crimes which are racially aggravated, homophobic, against faith groups, disabled people and asylum seekers. Sexual Offences Act 2003 Following are relevant to safeguard vulnerable adults: Sections Relate to adults who are vulnerable by virtue of a mental disorder; Sections Relate to offences against people who cannot legally consent to sexual activity because their mental disorder impedes their choice; Sections Relates to people who may not be legally able to consent because they are vulnerable to threats, inducements or deceptions because of their mental disorder; Updated March

11 Sections Relates to care workers and their involvement with people who have a mental disorder. New offences also relate to: Touching in a sexualised manner i.e. offences are not all about penetration Causing people to engage in sexual activity which does not involve touching by threats, deception etc. Police and Criminal Evidence Act 1984 Section 6 Police duty to treat people with learning disabilities or mental health problems as vulnerable adults who should be supported by an Appropriate Adult during police interviews. Section 17 Police powers of search and entry to save life and limb or prevent serious damage to property. Section 24 Police power to arrest without warrant anyone suspected of having committed or being about to commit an offence. Section 25 Police power to arrest someone to prevent them from causing physical injury to another person or to protect others. Domestic Violence and Criminal Evidence Act 2004 Act gives the police powers to deal with domestic violence including common assault, being an arrestable offence and enabling courts to impose restraining orders when sentencing. Section 5 Causing or allowing the death of a vulnerable adult or child in a household. It is an offence to cause the death, and to also have stood by and not taken reasonable steps to protect the victim. 8. Civil Law Family Law Act 1996 Section 33 Court orders to regulate the occupation of a dwelling house. Section 42 Updated March

12 Non-molestation orders. Law of Tort Injunctions and declaratory judgements. Protection from Harassment Act 1997 Civil remedies for restraining and damages. Compensation May be sought from the Criminal Injuries Compensation Board or by suing in civil law for compensation. County Court Order 10 and Supreme Court Rules Order 80 Where a vulnerable person is not able to give instructions to a lawyer it is possible to appoint someone to act on their behalf and the vulnerable person to sue by a next friend. Service users should always be advised of the right to discuss mistreatment with the Police and/or independent legal advisers. Updated March

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