SafeguardingCare and Support Statutory Guidance
23.18The core duty, at section 42 of the Care Act 2014, is to enquire into the possible abuse or neglect of adults with care and support needs and decide what if any action should be taken, under Part 1 of the Care Act 2014 or otherwise: see chapter 24 on ‘Safeguarding’ below.
23.19Where the adult in question lacks the capacity to engage, or would experience substantial difficulty in engaging with an enquiry, and does not already have an ‘appropriate adult’, the local authority must appoint an independent advocate to represent and support the adult: see section 68 of the Act and ‘Involvement/independent advocates/relevance of Mental Capacity Act 2005, above at paras
7.53–
7.65 and see para
24.10 below.
23.20As discussed in chapter 24 on safeguarding, there is a range of possible responses to abuse or neglect, ranging from:
•the provision of support services, designed to enable carers to provide better care; to
•removing the adult to care home or other accommodation, prohibiting further contact with the former carers and bringing criminal proceedings against them, either for conventional criminal offences or for the new offences created at section 44 of the Mental Capacity Act 2005, of ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions, on the part of a carer, the done of a lasting or enduring power of attorney, or a court-appointed deputy.
23.21The critical challenge for the local authority, when undertaking safeguarding functions in the case of an adult whose capacity for involvement is lacking, or undermined, is to fashion a response that protects the adult but, nonetheless, is proportionate, takes reasonable steps to promote as well as support family life and takes full account of the centrality of the wishes and best interests of the adult concerned. Guidance is providedat:
•Chapter 14 of the Care and Support Statutory Guidance; and at
•Chapters 6, 8 and 14 of the Mental Capacity Act 2005: Code of Practice (2007).
23.22Paragraphs 6.12 and 8.28 of the Mental Capacity Act 2005: Code of Practice (2007) advise that local authorities should consider applying to the Court of Protection where, for example, there is a major disagreement about a serious decision (eg about where a person who lacks capacity to decide for themselves should live), or harm or abuse is suspected (when, for example, the court could stop the individual concerned living with, or contacting the adult).
23.23There is a very useful suite of practice guidance on adult safeguarding, including recourse to the Court of Protection, provided by the Social Care Institute of Excellence.
1www.scie.org.uk/adults/safeguarding/resources/index.asp.Its practice guidance
Safeguarding adults at risk of harm: a legal guide for practitioners (2011)
2www.scie.org.uk/publications/reports/report50.pdf.is out of date in some respects (it pre-dates the Care Act 2014) but contains a great deal of extremely useful guidance as to law and practice. In outline:
•unless the welfare of the adult requires urgent action, local authorities should attempt to resolve matters, or at least refine the issues, by discussion and agreement;
•local authorities must obtain the authority of the court if they consider it necessary to remove a person lacking capacity to consent from their home or restrict their contact with others.
3Hillingdon LBC v Neary [2011] EWHC 1377 COP, [2011] 4 All ER 584.Such consent can be secured if necessary on an urgent basis, although every effort should be made, as far as appears consistent with the welfare of the adult, to give adequate notice to persons likely to be affected and to ensure that the evidence (of real risk) warrants such application;
•local authorities should, as a last resort, obtain a ruling from the court on more finely balanced disputes that relate to important aspects of the incapacitated adult’s welfare.