Good Practice in the Law and Safeguarding Adults

Criminal Justice and Adult Protection

Jacki Pritchard

• Publisher: Jessica Kingsley Publishers
• Year: 2008
• ISBN:
  9781846428586
• Topic: Social Sciences
• Subtopic: Social Work
• Index: Social Sciences

Good Practice in the Law and Safeguarding Adults provides an up-to-date summary of developments in the legislative framework and best practice relevant to the area of adult protection work.

It explains legislation that can be used in adult protection work, covering criminal and civil law, and crucial national guidance such as Achieving Best Evidence. Issues covered include confidentiality and information-sharing in adult protection work, capacity issues, police investigations, financial abuse, advocacy, witness support and honour-based violence. The book is illustrated throughout with case studies and good practice points.

This book will be essential reading for anyone working with vulnerable adults, including health and social care workers, care managers, support workers, volunteers, advocates, police, probation staff, prison staff, lawyers training officers and students.

CHAPTER 1

A REVIEW OF RELEVANT LEGISLATION IN ADULT PROTECTION

SIMON LESLIE AND JACKI PRITCHARD

Many practitioners feel frustrated by the fact that when dealing with adult abuse cases there is no statute equivalent to The Children Act 1989. However, criminal and civil law can provide remedies to protect vulnerable adults. It is important that any incident of abuse is placed within the relevant legal framework. The purpose of this chapter is to present a review of legislation¹ which is relevant to adult protection work, in a way that can be easily accessed by practitioners when they need to make reference to the law.

We believe it is imperative that anyone working with vulnerable adults should have some basic understanding of legislation; we obviously do not expect them to become legal experts. However, when following a criminal justice model it is necessary to have some knowledge about criminal offences, but in many cases of abuse it will be difficult to get enough evidence to prove a crime has been committed; nevertheless, a case conference must decide whether on the balance of probabilities abuse has occurred. It may then be possible to use common law or civil law.

HOW TO USE THIS CHAPTER

Finding the correct statute when you need it can be difficult; especially if you are not familiar with the law. Many safeguarding policies and procedures include sections on the legal framework but workers often complain that the information presented is not written in an easy or understandable way. We wanted this chapter to be written in an accessible way so that anyone needing information urgently can find it quickly. We gave a lot of thought as to how the chapter should be laid out and also we did not want to bombard the reader with too much information or legal jargon. Consequently, we have divided the chapter into sections. We begin by giving an overview of the different aspects of the law which can be used in adult protection work; the following sections then list the relevant statutes first by looking at key issues and then by the categories of abuse as defined in No Secrets (DH 2000).² To summarise, the sections are as follows:

Section 1: Human Rights

Section 2: Information Sharing

Section 3: Local Authority Powers and Duties in Cases of Suspected Abuse and Neglect

Section 4: Vulnerable Witnesses and Suspects Section

Section 5: Protection for People with Impaired Mental Capacity

Section 6: Powers to Protect People with Mental Disorder

Section 7: Protecting People from Physical Abuse

Section 8: Protecting People from Sexual Abuse

Section 9: Protecting People from Financial or Material Abuse

Section 10: Protecting People from Emotional Abuse

Section 11: Protecting People from Abuse by Neglect and Omission

Section 12: Protecting People from Discriminatory Abuse

Section 13: Protecting People from Institutional Abuse

Section 14: Recent Legislation relevant to Domestic Violence and Safeguarding Adults.

As this chapter is an overview of relevant legislation, we regularly cross-reference in footnotes to other chapters in the book which go into more detail.

A BRIEF INTRODUCTION TO SOME LEGAL ASPECTS

A useful starting point for any practitioner is to think about the different types of law which exist, but also how certain statutes can address specific problems which can arise when vulnerable adults are subjected to abuse.

Criminal law

Vulnerable adults are protected in the same way as any other person against criminal acts; thus if a person commits theft, rape or assault against a vulnerable adult they should be dealt with through the criminal justice system, in the same way as in cases involving any other victim. The Home Office guidance Achieving Best Evidence³ promotes this principle and is discussed elsewhere in this book.⁴

Civil law

Civil law includes family law and property law and defines issues such as ‘duty of care’ and ‘negligence’. Thus, for example, the Court of Protection makes arrangements for the supervision of property on behalf of people who are not deemed capable of managing their own financial affairs. Under the Mental Capacity Act 2005 the Court of Protection can make orders determining what steps are in the best interests of someone who lacks the capacity to decide for themselves. Family law allows an individual to take out an injunction against a member of their household who is threatening their safety. Employment law is also relevant. The law of torts (legal wrongs) can apply in some situations, including negligence and nuisance.

Compensation law

This enables a private action to be taken against an individual in the civil courts for compensation, and the criminal injuries compensation scheme enables recompense for injury or damage caused by a crime of violence.

Specific laws relating to vulnerable adults

There are various statutes which acknowledge the needs of certain groups of vulnerable adults; these will be discussed in full below. For example, the Mental Health Act 1983 (section 127) recognises that the ill-treatment or neglect of patients with a mental disorder by professional staff or unpaid carers is an offence; and the Sexual Offences Act 2003 (sections 30–41) recognises that adults with severe learning disabilities may not able to consent to sexual acts or relationships and need special protection from exploitation, whether from paid staff in a hospital or care home or from carers (paid or unpaid) in their own home.

Law relating to bad practice

Bad practice by workers is a common problem in adult protection work and is covered by the Care Standards Act 2000 and the Care Homes Regulations 2001⁵ as well as the Codes of Conduct or Practice issued by the General Social Care Council, Nursing and Midwifery Council and other professional bodies.

Legal advice and the vulnerable adult

The local authority receives advice from its own lawyers about its powers and duties to protect vulnerable adults. In some cases it will be necessary for a vulnerable adult to obtain advice of their own. This will be important for example when the vulnerable adult may be able to apply to court for an injunction, and where allegations of abuse may lead to criminal proceedings. Independent legal advice for an individual also helps ensure that there is no conflict of interest between that individual and the authority’s responsibility as commissioner or provider of services. There may also be a need to protect and assist vulnerable witnesses throughout the legal process and particularly at the investigation stage.

SECTION 1: HUMAN RIGHTS

It is important to consider the human rights both of the alleged victims of abuse and of alleged perpetrators. The key human rights to be aware of are:

•The right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). Investigating and responding to the risk of abuse will almost invariably involve or ‘engage’ Article 8. Interventions must be lawful, justified and proportionate given the risk.

•The right not to be subjected to torture or ‘inhuman or degrading treatment’ (Article 3 ECHR). Treatment is degrading if it ‘humiliates or debases an individual showing a lack of respect for, or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’.⁶ The courts have held that local authorities are under a proactive duty to ta...

Table of contents

• Cover
• Half Title
• also in the series
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• 1 A Review of Relevant Legislation in Adult Protection
• 2 Scottish Legislative Framework for Supporting and Protecting Adults
• 3 How Police Investigate Crimes Against Vulnerable Adults
• 4 Criminal Justice and Vulnerable Adults: Who Does What?
• 5 Confidentiality and Information-Sharing
• 6 The Vulnerable Adult and the Mental Capacity Act 2005
• 7 Capacity and Financial Abuse
• 8 The Role of Advocacy and the Independent Mental Capacity Advocate (IMCA) in Adult Protection Work
• 9 Being an IMCA: Experiences in Adult Protection Proceedings
• 10 The Commission for Social Care Inspection’s Legal Powers: What it Can and Cannot Do
• 11 My Use of the Law in Protecting Vulnerable Adults: From Police Officer to Chief Executive of a Care Provider
• 12 Reflections on Practice
• List of Contributors
• Subject Index
• Author Index