Guidance Twenty Seven - Legal framework
Introduction
The government is considering introducing a comprehensive statutory framework providing for the safeguarding of vulnerable adults. However in contrast to the regime concerned with vulnerable children, there is at present no clear statutory framework providing duties and responsibilities in relation to the protection of vulnerable adults generally. The Mental Capacity Act 2005 improves the position in relation to persons who lack or may lack capacity but it is still necessary in an individual case to consider innovatively a range of Local Authority, Health and other public service functions, and the criminal, private civil and common law to provide the necessary protection.
In some cases the ability of public authorities to act may be limited but services may nevertheless be provided to assist vulnerable persons to access appropriate advice and representation to pursue their own remedies.
Government guidance on the subject encourages an imaginative approach to the existing statutory duties and responsibilities. Guidance concerned with related areas of service increasingly contains references to the need to consider the welfare of vulnerable adults, and government policy encourages an approach that "Safeguarding Adults is Everyone’s Responsibility."
As the legal powers are found in a range of acts, regulations and case law all of which are subject to frequent amendment and development, providing a list of statutory provisions is unlikely to be helpful and it is important when professional concerns arise that legal advice is sought on the appropriate response to the individual circumstances of a case.
It is intended that the government website www.statutelaw.gov.uk will provide details of all statutory provisions currently in force in their amended form.
"No Secrets": Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse (2000)
This guidance was issued by the Secretary of State exercising the powers under S7 Local Authority Social Services Act 1970. It must therefore be followed by local Social Services Authorities unless there are exceptional reasons why it should not be followed. New statutory powers are not created but social services functions including liaison and co-operative relationships, joint funding, commissioning and provision of services with other agencies must be carried out so far as they can in accordance with the guidance, the focus of which is to provide protection from abuse, neglect and exploitation for vulnerable adults. "There can be no secrets and no hiding place when it comes to exposing the abuse of vulnerable adults".
Community care, mental health and inspection and registration functions provide for core services to be delivered for the benefit of adults and their application must include the emphasis required by the guidance.
The guidance requires Local Authorities to ensure that arrangements are made to provide for good and effective inter-agency procedures and protocols to improve the protection of vulnerable adults.
Services are increasingly provided through commissioning arrangements with private and voluntary sector providers. It is important that agencies ensure that the commissioning arrangements require providers to deliver services applying the same standards and procedures with regard to safeguarding vulnerable adults as would be expected within the commissioning agency.
Other legislation needs to be approached imaginatively to assist the protection of the vulnerable.
The Crime and Disorder Act 1998 requires inter-agency co-operation for the purposes of promoting a reduction of crime and disorder and permits sharing information for the purposes of the Act. Housing and anti-discrimination legislation addresses issues that will be helpful but is often difficult in its application to persons with complex needs and vulnerabilities. Developments concerning responsibilities towards adults previously looked after by Local Authorities when children and recent legislation addressing carers’ needs will be relevant.
Issues of consent, confidentiality, and self determination increase the complexity of the application of this guidance.
Human Rights
With effect from 2 October 2000, all public authorities must carry out their functions compatibly with the European Convention on Human Rights and Fundamental Freedoms, the provisions of which are set out in the First Schedule to the Human Rights Act 1998. Statutory provisions must be interpreted so far as it is possible to do so compatibly with the Convention Rights and the exercise of functions must be carried out compatibly with the Rights. Powers and responsibilities must be carried out in a manner that promotes protection from inhuman and degrading treatment (Article 3) and respect for family and private life (Article 8).
The introduction to "No Secrets" emphasises that:
"This guidance builds on the Government’s respect for human rights and results from its firm intention to close a significant gap in the delivery of those rights alongside the coming into force of the Human Rights Act 1998."
Good practice will be consistent with human rights obligations. However, consideration of the issues needs to be consciously integrated into service delivery and will result in a more focused consideration of individual needs. It will often be necessary to weigh in the balance competing interests under the Convention Rights and where infringement is permitted in the interests of others or the wider public interest, the justification must be well reasoned and clear.
It is particularly important that vulnerable persons unable to protect themselves receive the benefit of these rights. Since everyone is entitled to the benefit of the Convention Rights it is also important to look beyond the obvious recipient of services and consider who will be affected by their delivery.
Financial Exploitation
The Nottinghamshire Multi Agency Policy and Procedures includes an expectation that vulnerable adults will be protected from financial exploitation. This will require consideration of welfare benefits provision, Court of Protection powers and the misuse of powers of attorney in addition to many aspects of the criminal law. Liaison with finance houses regarding their arrangements for dealing with the affairs of vulnerable people may be appropriate and effective.
Criminal Law
All persons are entitled to the protection of the criminal law and in addition to the general law there are a number of specific offences that address persons who are particularly vulnerable. The Police will advise appropriately on these issues. Application of the law is often difficult because of evidential requirements and demands of court processes. In the public interest the Police require careful and full co-operation from all professionals when dealing with these difficult areas.
A significant improvement of the criminal provisions was introduced by the Mental Capacity Act 2005, section 44 which created an offence committed if a person neglects or willfully ill-treats an individual whom they care for or have responsibility for by reason of a power of attorney or court appointment and who lacks capacity or the person reasonably believes lacks capacity.
Civil Law
A range of remedies are available to vulnerable individuals to seek protection through the courts for themselves and their assets. The ability of public authorities to access these provisions on behalf of others is limited and good links with private solicitors experienced in these areas and who can act on their behalf need to be developed. In some cases the intervention of state agencies with responsibility to act for those who are not competent to protect their own interests and give instructions may be necessary.
Public Law
The statutes providing for services to adults were, for the most part, drafted without consideration of human rights or concepts of protection of the vulnerable from abuse, neglect and exploitation. They are complex and piecemeal. It is necessary to consider existing provisions with imagination in their interpretation and application.
The human rights imperatives will assist as will the obligation on Local Authorities under Section 17 Crime and Disorder Act 1998 to carry out their various functions with due regard to the likely effect on, and the need to do all that they reasonably can to prevent crime and disorder in their areas.
Community care provisions concerned with the needs of disabled, elderly and infirm persons, environmental health and housing powers and those related to harassment and anti-social conduct will be relevant. Revision of the law concerned with mental health, including guardianship, is current and the final provisions and guidance will require careful consideration.
Mental Capacity Act 2005
Nottingham and Nottinghamshire have a local multi agency policy and procedure relating to the Mental Capacity, (see Appendix 11 - Nottingham(shire) Mental Capacity Act Policy) |
This Act and the Code of Practice published under the Act will have a significant impact on practice and procedures concerning and the ability to safeguard vulnerable adults who lack or may lack capacity. It is expected that all provisions will be implemented by October 2007.
The legislation is expected to affect over 2 million people in England and Wales who lack mental capacity to make some decisions for themselves. Uncertainty in the common law about the authority others have to make decisions on behalf of persons who may lack capacity and to what extent is clarified.
It requires an assumption that a person has capacity unless proved otherwise, and an assessment to identify which decisions a person may have capacity to make and those that they may not and the times at which they may have or lack capacity. All practicable steps to help those who may and do lack capacity to be involved in decisions that affect them must be taken and those with limited ability to communicate must be assisted to do so.
All decisions made on behalf of someone who lacks capacity must be made in their best interests.
Provisions address the potential for abuse of enduring powers of attorney by creating Lasting Powers of Attorney (see below).
A new Court of Protection with the same powers, rights, privileges and authority as the High Court is created with jurisdiction in relation to welfare decisions as well as management of property and affairs. The Court may make declarations as to whether a person has or lacks capacity, and the lawfulness of any acts or omissions done or proposed to be done in relation to that person. It may appoint a Deputy to make decisions on behalf of a person who lacks capacity in relation to welfare or property and affairs.
The powers of the Court are extensive and include determining in relation to a person who lacks capacity, where that person is to live, what contact, if any, he or she is to have with any specified persons, that a named person shall be prohibited from having contact with him or her, that consent to shall be given or refused for the carrying out or continuation of a treatment by a person providing health care and that a person responsible for his or her health care shall allow a different person to take over that responsibility.
A new Office of the Public Guardian is created with functions including supervising Deputies and appointing Court of Protection Visitors with responsibilities to ensure that Lasting Powers of Attorney are being properly exercised. There are wide powers providing for the inspection of health and social care records.
Local authorities are required to ensure that Independent Mental Capacity Advocates (IMCAs) are available to represent and support persons who lack capacity and for whom no-one else is providing that support.
It is important
that when individuals purport to have powers or responsibilities under any of these arrangements staff in agencies examine carefully the documents relied upon as establishing those powers and satisfy themselves that the individual is acting within their authority.
that if staff are concerned that such powers are not being exercised in the best interests of the person lacking capacity, they seek legal advice on the steps available under the legislation to remove those powers.
Powers of Attorney
Any person who has the capacity to understand the nature and implications of doing so may appoint another person(s) to administer their affairs on their behalf either generally or limited to specific issues. This power may be removed or limited by the donor at any time. Unless the donor complies with the legislation creating enduring powers of attorney, the power will cease if and when a person lacks capacity.
Under the Enduring Powers of Attorney Act 1985 a person who has capacity may so appoint another person(s) in terms that provide that if and when they lack capacity the power will nevertheless continue.
An enduring power of attorney may only grant powers in relation to the administration of property and affairs. It does not give any power to determine matters of welfare in relation to the person lacking capacity. It is only effective after being registered with the Office of the Public Guardian when the donor lacks capacity.
Concern over the powers granted by an enduring power of attorney being abused by donees led to the creation under the Mental Capacity Act 2005 of the Lasting Power of Attorney. These provisions are expected to be implemented with effect from October 2007.
A person with capacity may grant a Lasting Power of Attorney to another individual(s). This may give authority to make decisions after a person lacks capacity and may relate to decisions about property and affairs and also welfare. The power must be registered with the Office of the Public Guardian which will be responsible for supervising the exercise of the powers.
Enduring Powers of Attorney granted prior to October 2007, whether or not the donor yet lacks capacity, will continue to have effect but will do so under the supervision of the Office of the Public Guardian.
It is important
that when individuals purport to be acting under the authority of either an Enduring Power of Attorney or a Lasting Power of Attorney that staff in agencies involved with persons lacking capacity examine the detail of the document giving authority and satisfy themselves that the donee is acting within the authority of the grant.
that if staff are concerned that a donee of a grant of a power of attorney is not acting in the interests of the person who lacks capacity, legal advice is taken on the steps that may be taken to remove the authority to act.
Common Law Doctrine of Necessity
The weakness of the statutory framework has been considered by the Courts in individual cases and they have shown a willingness to fill the gaps by allowing exercise of the inherent jurisdiction of the High Court and application of common law principles. These principles are now supplemented by the statutory jurisdiction of the new Court of Protection under the Mental Capacity Act 2005 (outlined above) so far as persons who lack or may lack capacity are concerned. The Court has the same powers, rights, privileges and authority as the High Court and the common law principles may also apply.
In particular, the courts recognise that although a person with a disability that impairs their understanding may not lack capacity for many areas of decision making, they may nevertheless lack the capacity to make a competent decision regarding their welfare in relation to a particular risk. It is also acknowledged that the impairment may be increased by the adverse experiences of their life.
The scope and extent of the development of these principles remains uncertain and careful consideration in each case will be necessary.
Confidentiality
The important duties in relation to vulnerable adults cannot be met without effective and appropriate sharing of relevant information, some of which may usually be regarded as confidential between a practitioner and patient or client. Protection for the vulnerable is only possible and services may only be appropriately co-coordinated, if those forming judgments about necessary action have access to all the relevant information.
The principles concerning the protection and disclosure of information normally regarded as confidential because of the relationship between the person holding the information and the person about whom it relates, need to be applied with due care in this area. Confidentiality should not be confused with secrecy.
Data protection and human rights legislation has increased the need to be able to justify disclosure. However, neither legislation nor ethical principles are intended to increase the vulnerability of those requiring protective action or make it more difficult to act to give that protection. They are concerned with promoting good practice and ensuring that information is shared on a need to know basis and can be justified after carefully considering the implications and in particular the purpose for which it will be used.
It is important that disclosure of information takes place according to principles of good practice and on a need to know basis. Those seeking disclosure should be clear about the reasons information is required and the purposes for which it is likely to be used.
Confidential information can be shared if required in performance of a statutory obligation, necessary to protect from harm or if it is in the public interest to do so. It is clearly in the public interest that the framework of protection required by Government and set out in the guidance operates effectively and that those unable to protect themselves are protected.
Provisions of the Crime and Disorder Act 1998 encourage effective sharing of material in the interests of reducing crime and disorder and complement the public interest obligation for public agencies to co-operate with the detection and prevention of serious crime. Section 115 allows any person, who otherwise would not have the power to disclose information, to do so where this is to Police, Local Authority, Probation or Health Authority, and is necessary or expedient for the purposes of any provision of the Act.
Good working arrangements, procedures and protocols will do much to reassure professional staff that information shared will be handled appropriately and sensitively. For more information, see the Nottinghamshire Information Sharing Protocol
Consent
The vulnerability of some adults may be such that they are incapable of making decisions on their own behalf. In these circumstances professional staff are obliged to exercise their responsibilities according to their judgment of what is in the best interests of the individual. It will be important in forming a judgment to ascertain the opinions and wishes of other adults who are close to the vulnerable adult and may be expected to know what that adult may be expected to wish for themselves. However, no other adult has the capacity to consent or withhold consent necessary to establish legality of the action proposed unless they have been granted authority to do so under the provisions of the Mental Capacity Act 2005 outlined above.
Capacity to consent may vary according to the issue under consideration.
Where individuals because of their vulnerability satisfy narrow statutory criteria, for example within the mental health legislation, action may be taken to take responsibility for decisions concerning themselves and their property. More difficult will be those cases in which individuals do not satisfy such tests but nevertheless remain vulnerable to abuse and exploitation by reason of some disability or infirmity.
The common law doctrine of necessity and the new jurisdiction of the Court of Protection may be available in particular circumstances.
In other cases it may have to be recognised that an individual has the autonomy to decide on the issue themselves. It is important in such cases that the individual is assisted to make the judgment having possession of all relevant information. Other steps that do not require consent may be possible to reduce the risks to which the individual is exposed.