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The New Care Act – What’s in it for Safeguarding?
The Care Act 2014 received Royal Assent last month after much to-ing and fro-ing between the House of Commons and the House of Lords. It will be fully implemented in 2015. One of the key features of the Act is the introduction of a statutory framework for safeguarding adults in England.
Until now, even though we had a number of laws on the statute book that might relate to the protection of vulnerable adults, there was no one law providing a framework for this. What we have had up to now is guidance in the form of the ‘No Secrets’ policy (No secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, Department of Health 2000). So what’s going to change with the new Care Act? Let’s first of all explore some terminology:
Safeguarding – the ‘No Secrets’ guidance views safeguarding as not just being about putting measures in place to protect people from harm from others. It views safeguarding as a three pronged issue:
- protecting people at risk of harm
- empowering them to make decisions and choices
- providing justice against those who would harm them.
Vulnerable adult is someone who ‘No Secrets’ says ‘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, and or unable to protect him- or herself against significant harm or exploitation’
Abuse - The No Secrets guidance states that ‘abuse might consist of a single act or repeated acts of abuse.’ Abuse is not just physical, it can include financial or emotional abuse. It is not just about doing something that harms somebody, it can be neglect.
No Secrets no more
So what ‘No Secrets’ provided was guidance for local authorities. It recommended that local area safeguarding boards be set up to ensure agencies such as police and social services work together to protect people. Though this was statutory guidance, it wasn’t the law itself. What that has meant is that other legislation would need to be relied upon to provide legal clout for any actions decided on. So, for example, in terms of assessment of someone’s needs to see if they fell in to the definition of a vulnerable adult, then someone would need to be eligible for an assessment under the NHS and Community Care Act 1990. If someone was suspected of an offence involving abuse of a vulnerable adult, the police would consider use of the criminal law. Most significantly since the ‘No Secrets’ guidance was issued we have had the implementation of the Mental Capacity Act 2005, which provides for decisions to be made in the interest of people who lack the capacity to make those decisions themselves, including decisions about how to protect themselves from abuse. As part of the introduction of the new Care Act, the ‘No Secrets’ guidance will be cancelled.
So what does the Care Act do for safeguarding?
- First of all every area must now have a safeguarding adults multi-agency board, that must include representatives of the local authority, the police, and the NHS commissioners
- Councils will have a duty to make enquiries about allegations of abuse, including financial abuse against about someone living in their area, where the person is unable to protect themselves. The draft guidance just issued suggests that though the local authority will take the lead in coordinating this, a worker who knows the situation best might undertake the investigation.
- Councils must hold serious case reviews in certain circumstances. A safeguarding board must arrange for there to be a review of a case involving an adult in its area who has care and support needs if there is concern about agencies not working together properly to protect the person.
- Organisations and individuals must share information with Safeguarding Adults Boards if they are asked for it, where abuse and neglect are involved.
- Councils must provide or pay for advocacy services to speak up for people who may have been abused and they can attend safeguarding meetings.
One of the issues that was considered in the passage of the Care Act was giving local authorities the power to enter a person’s property to investigate whether adults were at risk of harm, but this was rejected. We can expect some guidance on how a situation might be managed where access to a property is denied as regulations to accompany the Act are drawn up.
Finally the Care Act has done some tidying up of existing law. A little used power (Section 47 of the National Assistance Act 1948) given to local authorities to remove someone who cannot care for themselves into a care home has been abolished. There is also now a clear duty on local authorities to protect the property of adults who are being cared for away from their home, if there’s a danger of damage to the property, and the person is unable to deal with it themselves.
Now that’s not the end of the story. As you will know, once an Act of Parliament has received Royal Assent there’s still quite a bit of work to be done to guide practitioners as to how it will work in practical terms. The government is now consulting on drawing up regulations and guidance to accompany the Act. You can read the draft guidance at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315993/Care-Act-Guidance.pdf
Wales and Scotland
The Care Act 2014 is legislation enacted in England. I wrote recently about a new act in Wales - the Social Services and Well-Being (Wales) Act 2014. This piece of law appears much more specific in its provision for what it calls ‘adults at risk’. The law in Wales allows for adult protection and support orders to be applied for from a magistrate to properly investigate where there is risk of abuse against an adult. Again this law will be implemented by next year.
Scotland, as with many forms of legislation, are ahead of the rest of the UK in terms of adult protection. The Adult Support and Protection (Scotland) Act 2007 came into operation in 2008. This law requires local authorities to undertake investigations where an adult is at risk of harm. The Scottish law contains a variety of orders that can be sought to stop abuse.
You can find safeguarding policies and procedures in the QCS system. In view of recent changes in law, look out for revisions to these policies when the new legal provisions are implemented.
*All information is correct at the time of publishing