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23.4Safeguarding has both a broad and a narrow definition.
1See the Law Commission’s report Adult social care, Law Com No 326, May 2011, para 9.2; available at: http://lawcommission.justice.gov.uk/docs/lc326_adult_social_care.pdf. The broader definition encompasses the prevention of abuse, and can encompass consideration of all aspects of a person’s general welfare. As such, it forms part of the general approach to be taken to the assessment and delivery of services to adults by local social services authorities. The narrow definition – perhaps more accurately called ‘adult protection’ – refers to investigation and intervention where it is suspected that abuse may have occurred. In neither case was there traditionally a single legal framework setting out either the responsibilities of local authorities. Their duties arose from a mixture of statutory obligations (in particular, the duty to undertake community care assessments); statutory guidance in the form of the
No Secrets guidance issued by the Department of Health and Home Office in 2000;
2No Secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, Department of Health/Home Office, 2000; available at: https://www.gov.uk/government/publications/no-secrets-guidance-on-protecting-vulnerable-adults-in-care. and public law requirements, in particular those imposed under Articles 2, 3, 5 and 8 of the European Convention on Human Rights (ECHR).
23.5In England, the Care Act 2014 changed the law in this area by imposing two duties upon local authorities.
•First, implementing one of the main recommendations of the Law Commission in its review of adult social care, the Care Act 2014 introduced an overarching principle in section 1 to the effect that the general duty of a local authority in the discharge of its functions relating to care and support of specific individual is to promote the well-being of that individual. ‘Well-being,’ in turn, is defined as including protection from an abuse and neglect.
3Care Act 2014 s1(2)(c). •Second, and again implementing one of the main recommendations of the Law Commission, the Care Act 2014 introduced
4Care Act 2014 s42. a statutory duty of enquiry upon a local authority wherever it has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there):
•has needs for care and support (whether or not the authority is meeting any of those needs) (ie whether or not the adult is eligible for community care services provided by the local authority);
•is experiencing, or is at risk of, abuse or neglect; and
•as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.
23.6While ‘abuse’ is not given a specific definition, the Care Act 2014 makes clear
5Care Act 2014 s42(3). that it includes financial abuse, financial abuse being defined, in turn, as including:
•having money or other property stolen;
•being defrauded;
•being put under pressure in relation to money or other property; and
•having money or other property misused.
23.7The statutory guidance accompanying the Care Act 2014 provides that it also encompasses physical abuse, domestic violence, sexual abuse, psychological abuse, modern slavery, discriminatory abuse and organisational abuse.
6Department of Health, Care and Support Statutory Guidance, chapter 14. ‘Neglect’ is not defined in the Care Act 2014, but in the statutory guidance is defined as including neglects by acts of omission such as ignoring medical, emotional or physical care needs, failure to provide access to appropriate health, care and support or educational services and the withholding of the necessities of life, such as medication, adequate nutrition and heating. It can also include self-neglect.
7Ibid.23.8The equivalent duties were introduced in Wales in the Social Services and Well-being (Wales) Act 2014 ss5 (well-being) and 126 (the duty of inquiry). There is a more detailed definition of both abuse and neglect given in the legislation itself,
8Social Services and Well-being (Wales) Act 2014 s197. with a non-exhaustive list of examples given in the accompanying statutory guidance.
9Welsh Government, Statutory Guidance: Working Together to Safeguard People Volume 1 – Introduction and Overview, Part 7: Safeguarding, para 26. Neither the Act nor the accompanying statutory guidance provide for self-neglect, and it is doubtful that this is capable of triggering the duty of inquiry.
23.9Where the duty of enquiry arises, the local authority must make or cause to be made whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s care and, if so, what and by whom.
10Care Act 2014 s42(2) (England); Social Services and Well-being (Wales) Act 2014 s126 (Wales).23.10The Care Act 2014 does not, however, introduce any additional
powers for local authorities in respect of either the prevention or the investigation of abuse or neglect. In particular, the government declined on several occasions during the passage of the bill through parliament to amend it to introduce a power of entry by which a local authority would be able to seek a judicial warrant to enter a property and speak to an adult at risk. The Social Services and Well-being (Wales) Act 2014 does include such a power for an authorised officer to apply for an adult protection and support order,
11Social Services and Well-being (Wales) Act 2014 s127 (Wales). An equivalent power (and other, broader, powers including a power of removal) can be found in the Adult Support and Protection (Scotland) Act 2007. and practice in England and Wales may well diverge considerably over the coming years in consequence of the differing powers available to local authorities in the two jurisdictions.
23.11In order to discharge their duty of inquiry, local authorities will need to draw upon a range of pre-existing powers (including the specific statutory power of entry in Wales) and/or draw upon co-operation from other authorities with relevant responsibilities and powers (most obviously, police forces). Space prevents a detailed discussion of these powers, but for purposes of this book, the most relevant is the ability of a local authority – where the adult lacks (or may lack
12Sometimes, the issue is in fact whether the adult lacks that capacity or whether they are a vulnerable adult under coercion: see para 5.2, London Borough of Redbridge v G [2014] EWCOP 17 and chapter 11 of Ashton et al, Mental Capacity Law and Practice, 3rd edition, Jordans, 2015.) decision-making capacity in the relevant domains – to bring proceedings before the Court of Protection for declarations and decisions as to such matters as to where they should live and with whom they should have contact.
23.12The President of the Court of Protection, Sir James Munby, has held on a number of occasions that local authorities or other public bodies must obtain the authority of the court if they consider it necessary to remove a person lacking capacity to consent from their home.
13Most recently in Re AG [2015] EWCOP 78, [2016] COPLR 13, but see also Re A and C (Equality and Human Rights Commission intervening) [2010] EWHC 978 (Fam), [2010] COPLR Con Vol 10. It is suggested that, to the extent that he has purported to lay down a substantive rule to this end, such cannot be correct.
14See, by analogy, R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273, (2004) 7 CCLR 609 at paras 71–72, and also Alex Ruck Keene, ‘Section 5 MCA and the “need” for judicial sanction’ [2016] Eld LJ 244. However, it is clear that any decision by a public body to remove a person from their own home, especially in the face of their objections, and/or to restrict their contact with others,
15Hillingdon LBC v Neary [2011] EWHC 1377 (COP), [2011] COPLR Con Vol 632, (2011) 14 CCLR 239. will undoubtedly engage the person’s rights to private and family life under Article 8 ECHR (and quite possibly those of others), and that proceeding without the sanction of the court may well give rise to a breach of the implied procedural safeguards that accompany Article 8.
16See the article by Alex Ruck Keene referred to above and, eg, the decision of the European Court of Human Rights in Shtukaturov v Russia [2008] ECHR 223, in which the court reiterated (at para 89) that, whilst Article 8 of the Convention contains no explicit procedural requirements, ‘the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8’. Put simply: public bodies are on thin legal ice when they are interfering substantially in the autonomy of those without capacity, and they will always need to be clear as to the precise basis upon which they are acting and alert to the possibility that they may need the court to confirm they are acting lawfully. The mere fact that they are acting pursuant to safeguarding obligations imposed under either the English or Welsh legislation does not, itself, give them the power to take such draconian steps as removal from a person’s home or restriction of their contact with others.