Legislation & national guidance

As abuse and neglect are a violation of an individual’s human and civil rights, the Human Rights Act may be relevant in safeguarding situations.

The European Convention on Human Rights (ECHR) was incorporated into UK law via the Human Rights Act. Such rights are fundamental to protecting people from both being directly harmed by the state or not being sufficiently protected by the state.

The Act under Article 13 sets out the principle that all the freedoms and rights should be enjoyed without discrimination on the grounds of race, sex, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

5.1 Article 2

Article 2 states that ‘everyone’s right to life shall be protected by law’. This means that the state must take reasonable steps positively to safeguard people’s rights to life, as well as not take people’s lives intentionally and unlawfully. It can mean setting up adequate enquiries in certain circumstances when people have died in connection with the acts or omissions of public bodies.

5.2 Article 3

Article 3 states that people have a right not to be subjected to torture or to inhuman or degrading treatment or punishment. This is an absolute right, which is not subject to any provisos or conditions.

The European Court of Human Rights (ECtHR) has stated that inhuman or degrading treatment means that the ill treatment in question must reach a minimum level of severity, and involve actual bodily injury or intense physical or mental suffering.

Degrading treatment could occur 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’.

5.3 Article 4

Article 4 prohibits slavery and forced labour, and stresses that no-one shall be held to slavery or servitude, and no-one shall be required to perform forced or compulsory labour.

5.4 Article 5

Article 5 states that everyone has a right to liberty and security and that nobody should be deprived of then – unless he or she falls into a particular category of person, and only then in accordance with procedures prescribed by law.

5.5 Article 6

Article 6 states that in the determination of a person’s civil rights and obligations or of any criminal charge against him, he or she is entitled to a fair and public hearing within a reasonable time, held by an independent and impartial tribunal established by law.

5.6 Article 8

Article 8 creates a right to respect for a person’s home, private and family life. The courts have held that private life includes physical and psychological integrity.

Article 8 is not an absolute right, so the right it contains can be interfered with under certain conditions. In safeguarding, decisions about intervention have to balance the desirability of not interfering unduly and the justification in terms of risk to the person involved or other people. The conditions allowing interference are that it is:

• In accordance with the law
• Necessary in a democratic society
• For a specified purpose, including for the protection of health or morals, for the protection of the rights of other people, for the economic wellbeing of the country, for the prevention of crime.

5.7 Article 9      

Article 9 enshrines the concept of freedom of thought, conscience and religion. This right includes the individual’s freedom to change their religion or belief, be it alone or in community with others and in public or private.

This right is subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety.

5.8 Article 10

Article 10 states that everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without inference from the state.

The exercise of this freedom since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety for the prevention of disorder of crime.

Human Rights Act

The Mental Capacity Act provides a statutory and legal framework to empower and protect people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose mental capacity to make certain decisions.

The Mental Capacity Act is an important piece of legislation in terms of safeguarding, as it places the person at the heart of decision making and places a strong emphasis on supporting and enabling the person to make their own decisions.

It also stresses that if the person is unable to make certain decisions they should still be involved in the decision making process as far as possible.

Assessing Capacity

The Act establishes five ‘statutory principles’ which are the values that underpin the legal requirements and apply to any act done or decision made under the Act.

• A person must be assumed to have capacity unless it is established that they lack capacity. (section1(2)
• A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (section 1 (3))
• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.’ (section 1(4))
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests. (section 1 (5))
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in way that is less restrictive of the person’s rights and freedom of action (section 1(6))

In assessing mental capacity the starting point is always to assume that a person has the capacity to make a specific decision, although they may require help and support to make or communicate the decision. There must be no assumptions made about anyone lacking capacity on the basis of their age, appearance or disability.

There is a 2 stage test set out by the Act to help determine if a person lacks capacity to make a particular decision.

• Stage 1: Establishing whether a person has an impairment of, or disturbance in the functioning of, their mind or brain. Without proof that a person has an impairment or disturbance of the mind or brain, they will not lack capacity under the Act
• Stage 2: Establish whether the impairment or disturbance means that the person cannot make a specific decision at that time.

The Mental Capacity Act’s Code of Practice states that nobody can be forced to undergo an assessment of capacity and were there serious concerns about a person’s mental health it may be possible to obtain a warrant under section 135 of the Mental Health Act.

If there is a serious question about a person’s mental capacity, the Court of Protection can be applied to, for a declaration (decision) about this under section 15 of the Act.

Where there is doubt about a person’s capacity the court can make an interim order under section 48 if the court is convinced that there is ‘reason to believe that a person may lack capacity’. It does not require that lack of capacity be established on the balance of probability (a higher test), which is required for the court to make an ordinary (rather than an interim) order.

An interim order from the court could cover matters such as taking immediate safeguarding steps, or giving directions to resolve the issue of capacity quickly.

The Mental Capacity Act applies to everyone, but especially to those who work in health and social care and are involved in the care, treatment or support of people over 16 years of age who may lack capacity to make decisions for themselves.

No assumptions should be made about anyone lacking capacity on the basis of their age, appearance or disability. The person assessing capacity should undertake all practical steps to help someone make the decision if this has not been done then the individual cannot be treated as lacking capacity.

In respect of decisions in safeguarding situations it is essential that all the necessary information is provided in the most accessible form, and additional support provided if required to ensure a thorough understanding of the issues is achieved.

Failure to provide information to support the individual to understand or make informed choices could result in a potentially breach their rights to fairness (article 6) under the Human Rights Act.

Coercion and Unwise Decisions

One of the most challenging areas of practice in safeguarding relates to unwise decisions, coercion and mental capacity. For example, making a decision to remain in a relationship where you may be abused by someone does not in itself indicate mental incapacity. It may be that the relationship is more important to you than the harm that is being done, perhaps more so if the harm is not life-threatening.

However, it is important to recognise that where a person is at high risk of harm this may limit their capacity to safeguard themselves due to fear, coercion or understandable psychological responses designed to limit the extent of the harm. The person may identify with, absolve or rationalise the perpetrators actions, leading to them not acknowledging the level of risk they face.   

If a person repeatedly makes unwise decisions that put them at significant risk of harm, or makes a particular unwise decision that is obviously irrational or out of character there may need to be further investigation taking into account the person’s past decisions, choices and patterns of behaviour.

Court of Protection and Advocacy

The Mental Capacity Act created the role of the Independent Mental Capacity Advocate. The purpose of this role is to help people who lack the capacity to make important decisions.

If there are safeguarding concerns then an Independent Mental Capacity Advocate (and/or an advocate as described by the Care Act) can be instructed by the local authority whether or not the person has family, friends or others involved in their care.

The Independent Mental Capacity Advocate can be instructed to support and represent a person lacking the relevant mental capacity where safeguarding measures are being put in place in order to protect them from abuse. People who lack capacity and have friends and family can still have an advocate to support them through the process.

The Mental Capacity Act gives the right to concerned parties to apply to the Court of

Protection for a declaration of best interests, dealing with both financial and/or welfare issues for those lacking mental capacity.

An application can only be made if there is a serious issue that requires judicial resolution and it would be for the court to consider and decide what is in the best interests of the person without capacity.

Court of Protection involvement is intended to be a last resort for welfare issues, and it is expected that use of advocacy, second opinions, case conferences, mediation or complaints procedures may mean that the court’s involvement is not called for.

However, the court’s involvement may be necessary in cases of entrenched disagreements and difficult decisions, as may arise in safeguarding situations, and the courts declaration (decision) can cover matters such as:

• Where the person should live
• Whose company the person should have (and under what circumstances)
• Arrangements for care and support

The declaration can cover restraint, and in extreme circumstances, detention of the individual for their own safety, at least for a short period, pending, for instance, completion of an investigation into the conduct of the person’s carers if there is an allegation of neglect.

Communication and compromise should be sought in cases of dispute, where there may be the likelihood of an application to the court as:

• There is a cost to the application and any subsequent hearings
• There is a risk that the court will find against the claimant and favour the other parties proposals
• The declaration usually only relates to single issues so usually does not give ongoing or absolute care or control
• It is not available in a situation of physical incapacity or illness unless accompanied by mental incapacity

The courts have taken the view that the ‘further capacity is reduced, the lighter autonomy weighs’. So the nearer to capacity a person is, so the greater weight should be placed on the person’s wishes in determining their best interests. So, if the wishes of a person lacking capacity are not irrational, impracticable or irresponsible, then the weight to be given to them will be all the greater. Factors to be considered are:

• The degree of capacity
• Strength and consistency of wishes
• Impact on the person if wishes are not given effect to
• Extent to which wishes are rational, sensible, responsible and pragmatic
• The extent to which the wishes fit overall into a judgement about best interests

So because a person would have made an unwise decision, had they still retained capacity, does not mean that a third party should therefore also make an unwise decision. A consciously unwise decision should rarely, if ever, be made, and characterised as being in a person’s best interests.

There are some decisions that are so serious anyway, that the court’s involvement will be required in circumstances such as artificial nutrition and hydration for patients in a persistent vegetative state, bone marrow donation and non-therapeutic sterilisation.

Court of Protection – Property and Affairs

For property and affairs, the court’s involvement will usually be necessary unless the only income involved is from state benefits or an enduring or lasting power of attorney already exists.

On application, the Court may make a Deputy Order which sets out the extent of your powers. It can apply to any area in which the person could have acted or made decisions for themselves if they had the capacity to do so.

The powers might relate to finances or personal welfare, such as giving or withholding consent to medical treatment or social care interventions. A Lasting Power of Attorney (LPA) is a legal document that someone (the donor) makes using a special form. It allows that person to choose someone now (the attorney) that they trust to make decisions on their behalf at a time in the future when they either lack the mental capacity or no longer wish to make those decisions themselves. The decisions could be about the donor’s property and financial affairs and/or about their health and welfare.

Making an LPA is the only way for a person to make plans for a time in the future when they may lack the capacity to make certain decisions. An LPA can only be used after it is registered with the Office of the Public Guardian. There are two types of LPA, one for property and financial affairs and one for health and welfare.

Since October 2007, Enduring Powers of Attorney (EPA’s) were replaced by LPA’s. The Enduring Power of Attorney was a legal document by which a person could give control to another person to decide what is done with their financial affairs and property only. However if an EPA was made before October 2007, it can still be registered and used accordingly.

The Department of Works and Pensions (DWP) can appoint someone else (the Appointee) to receive the adult’s benefits and to use the money to pay expenses such as household bills, food and personal items. An appointee should be a close relative, friend or someone who is regularly in contact with the adult (the local authority can also take on this role as a last resort).

The adult, who is willing to act as the appointee, must contact the local DWP office who will arrange to interview the adult to decide whether they are mentally or physically incapable of acting on their own behalf. The appointee can give one month’s notice of their intention to cease the arrangement and the DWP can end the arrangement at any time if it is not working satisfactorily.

Inherent Jurisdiction of the High Court

The Mental Capacity Act created something of a ‘hard line’ as to whether a person has or has not got the mental capacity to take a particular decision.

Sometimes, even if a person does have the relevant mental capacity, they may still be in a very vulnerable position because of constraint or coercion, or for some other reason deprived of free choice, or unable to give or express real or genuine consent.

The High Court may use its ‘inherent jurisdiction’ (or powers) to make a declaration as to whether an action which is proposed to be taken is in the best interests of a person. The courts inherent jurisdiction enables them to intervene legally in certain circumstances in respect of an adult, even when there is no legislation sanctioning it.

Such an avenue could be very important in safeguarding situations, where practitioners are attempting to assist an adult at significant risk of harm, but are unable to do this under the Mental Capacity Act. However, the court would consider in each case whether intervention by the state was necessary and proportionate to the presenting risk, and they apply an extremely high threshold.

This is a scarcely used provision which the High Court is reluctant to apply other than in the most exceptional circumstances and the evidential burden on the party making the application is, therefore, very high.

Mental Capacity Act

Compulsory intervention under the MHA may be an essential way of safeguarding an adult at risk if less formal attempts have either failed or are not possible for some other reason.

In relation to safeguarding, such interventions will constitute a measure of last resort but may be essential.

There are good reasons why use of the MHA should prevail where it applies in safeguarding situations as it is:

• A process with inbuilt checks and balances
• Well understood by most professionals
• Cheaper than the Court of Protection

Under sections 7 and 8 of the Act an application for guardianship may be an appropriate way of safeguarding an adult at risk, but particular conditions must be satisfied.

The person must be at least 16 years old and be suffering from a mental disorder. The mental disorder must be of a nature or degree that warrants his or her reception into guardianship and this must be necessary in the interests of the welfare of the patient, or for the protection of other people.

The person subject to guardianship can be both taken and conveyed to the place of residence and also returned if they leave that place of residence.

Broadly courts agreed that, up to a point, given that the guardian can promote the welfare of the person, and this could also extend to limiting a person’s contact with certain others, but this does not amount to the guardian acting outside the law, such as the Human Rights Act. More serious steps may require a separate court order.

The MHA code of practice states that requiring a person under guardianship to live somewhere does not extend to depriving that person of his or her liberty. It states that this would only be possible in the case of a person lacking capacity, and only then if authorisation was obtained under the Mental Capacity Act.

Guardianship for last up to a period of 6 months, and the person can be received into guardianship by the local authority if they are suffering from a mental disorder of a nature or degree which warrants their reception into guardianship.

The guardianship must also be necessary in the interests of the welfare of the patient or for the protection of others. The welfare of the patient is interpreted broadly.

Guardianship gives the guardian three basic powers:

• To say where someone is to live
• To require the patient to attend somewhere for the purpose of medical treatment, occupation, education or housing
• To gain access to the patient at a place in which someone is living.

It is necessary to consult the nearest relative if the local authority is considering guardianship. If the nearest relative appears to be the perpetrator of mistreatment, then the local authority may consider an application to a County Court to displace the nearest relative under section 29 of the Mental Health Act.

The County Court may, upon application, direct that the functions of the nearest relative of the patient be exercised by the applicant who may be a local authority or by any other person specified in the application.

The application may be made on the following grounds:

• That the patient has no nearest relative under the meaning of this Act or that it is not reasonably practicable to ascertain whether he has such a relative
• That the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness
• That the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or guardianship application in respect of the patient
• That the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient, or is likely to do so
• That the nearest relative of the patient is otherwise not a suitable person to act as such

Under section 115 of the Act, an Approved Mental Health Professional (AMHP) has the power to enter and inspect premises (other than a hospital) if they have reasonable cause to believe that a mentally disordered person is living there and is not ‘under proper care’. There is no power of removal attached, but if the AMHP is obstructed, then an offence may be committed under section 139.

Section 117 provides for after-care responsibility by health and social care services for persons detained under certain sections of the Mental Health Act. 

Under section 125(a) an application may be made for a detained patient to be supervised after they leave hospital.

Section 127 creates an offence for an officer on the staff or otherwise an employee or manager of a mental nursing home or hospital to ‘ill-treat or wilfully neglect’ a patient who is either currently receiving treatment for mental disorder as an inpatient in that hospital or home, or a patient receiving treatment as an outpatient.

Under section 135 of the Act a police constable can enter premises, using force if necessary, to remove a person to a place of safety, however a warrant from a magistrate or JP must be obtained first. The purpose must be with a view to making an application to detain under the Act or making other arrangements for care and treatment.

For the warrant to be issued it must appear that there is reasonable cause to suspect that a person has been, or is being, ill-treated, neglected or not kept under proper control and that they are unable to care for themselves and are living alone.

Under section 136 of the Act a police constable has the power to remove from a public place – and take to a place of safety – a person who appears to be suffering from mental disorder. Two conditions must be satisfied; that the person appears to be in immediate need of care and control; and that the police constable thinks it is necessary in the interests of the person or other people.

Under section 2 of the Act a person may be admitted to hospital and detained there for a period not exceeding 28 days on the grounds that:

• They are suffering from mental disorder of a nature or degree which warrants his/her detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period; and
• They ought to be so detained in the interests of their own health or safety or with a view to the protection of other persons.

Under section 3 of the Act a person may be admitted to hospital and detained for a period of treatment. An application for treatment is based on the written recommendations in the prescribed form of two registered medical practitioners.

This section applies for up to six months and can be renewed initially for a further six months then yearly. An application can be made in respect of a person on the grounds that:

• They are suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and their mental disorder is of a nature or degree which makes it appropriate for them to receive medical treatment in a hospital; and
• In the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of their condition
• It is necessary for the health or safety of the patient or for the protection of other persons that they should receive such treatment and it cannot be provided unless they are detained under this section.

Under section 4 of the Act a person may be detained on the recommendation of one medical practitioner for a period of up to 3 days, but only in response to emergency situations where, for example, a section 2 cannot be completed.

For further guidance please see the Mental Health Act Code of Practice

Mental Health Act 1983

The Sexual Offences Act (2003) sets out a number of general offences involving issues of consent. They can be used to prosecute, whether or not the victim has a mental disorder and whether or not the victim had the ability to consent.

The Act includes measures to help juries make fair and balanced decisions on the question of consent whilst also introducing new offences to improve protection for children and vulnerable adults, such as:

• Abuse of position of trust - designed to protect young people who are potentially vulnerable to sexual abuse from people in positions of trust
• Offences against persons with mental disorder – includes offences against people who cannot legally consent to sexual activity because of a mental disorder (sections 30-33) and offences against people who may or may not be able to consent to sexual activity but who are vulnerable to inducements, threats or deceptions because of a mental disorder. (sections 34-37)

A further set of offences relates to victims with a mental disorder and care workers (sections 38–41). Conviction for offences under this Act may mean that the offender is placed on the Sex Offenders Register.

A Sexual Offences Prevention Order (SOPO) can be made either at the time of conviction, or on application by the police, after conviction, if it is necessary to protect the public from serious sexual harm by the offender (section 104).

The order can be wide-ranging in terms of prohibitions placed on the person.

Sexual Offences Act 2003

Freedom of Information Act (2000)

The Freedom of Information Act (2000) governs information held by health and social care services and confirms that all such information can be disclosed on request, subject to the restrictions of the Data Protection Act (1998).

Freedom of Information Act 2000

The Data Protection Act (1998)

Local authorities and all agencies should have guidance available to staff in respect of the Data Protection Act.

When access is requested, then the individual who the subject of the information (the data subject) should have the opportunity of having the information disclosed to them, subject to non-disclosure of third party information (information concerning another person who is not the data subject) and whether the disclosure of the information on the file would result in significant harm to either the data subject or other person or worker involved.

Data Protection Act 1998 and GDPR 2018

The Care Act (2014)

The Care Act Statutory Guidance requires that all agencies should keep clear and accurate records and each agency should identify procedures for incorporating, on receipt of a complaint or allegation, all relevant records into a file to record all action taken.

When abuse or neglect is raised managers need to look for past incidents, concerns, risks and patterns. We know that in many situations, abuse and neglect arise from a range of incidents over a period of time. In the case of providers registered with CQC, records of these should be available to service commissioners and the CQC so they can take the necessary action.

In the past, there have been instances where the withholding of information has prevented organisations being fully able to understand what “went wrong” and so has hindered them identifying, to the best of their ability, the lessons to be applied to prevent or reduce the risks of such cases reoccurring.

A Safeguarding Adults Board may request a person to supply information to it or to another person. The person who receives the request must provide the information provided to the SAB if:

• The request is made in order to enable or assist the SAB to do its job
• The request is made of a person who is likely to have relevant information and then either (i) the information requested relates to the person to whom the request is made and their functions or activities or (ii) the information requested has already been supplied to another person subject to an SAB request for information

Agencies should draw up a common agreement relating to confidentiality and setting out the principles governing the sharing of information, based on the welfare of the adult or of other potentially affected adults. Any agreement should be consistent with the principles set out in the Caldicott Review. 

Where an adult has refused to consent to information being disclosed for these purposes, it should be considered whether there is an overriding public interest that would justify information sharing.

Decisions about who needs to know and what needs to be known should be taken on a case by case basis, within agency policies and the constraints of the legal framework.

In certain circumstances, it will be necessary to exchange or disclose personal information which will need to be in accordance with relevant law and guidance.

Care Act 2014

These two Acts:

• Established the regulatory regime for Social Care and Health Care Services including Mental Health namely the Care Quality Commission (CQC)
• The CQC regulates, registers and inspects services to ensure that the quality of services meet National Standards

Section 62 Health and Social Care Act 2008 permits an authorised person to enter and inspect any regulated premises.

The Acts ‘Inspection of Homes’ provisions empower authorised staff from the Care Quality Commission to enter and inspect premises that are used for the purposes of residential care. If care is thought to be failing, a number of measures are available including:

• Prosecution of individuals
• Cancellation of registration
• Immediate closure of home, by order of a magistrate
• Restrictions on new admissions

Additionally, providers of health and social care are subject to registration and regulation in relation to the services that they provide under the Health and Social Care Act (2008).

Such regulation is intended to ensure that standards in health and social care are such as to avoid organisational and institutional problems that can seriously harm adults at risk. The CQC can issue statutory warning notices, impose, vary or remove registration conditions, issue financial penalty notices, suspend or cancel registration, prosecute specified offences and issue simple cautions.

A number of specific offences are set out within the Act. These include failing to comply without reasonable excuse with conditions set by the Commission, carrying on regulated activity after registration has been suspended or been cancelled, contravening specific regulations and giving a false description of a concern or premises (sections 33–37).

Health and Social Care Act 2008

Anti-social Behaviour, Crime and Policing Act 2014

The Housing Act (1996) places a duty on Local Authorities to give priority and provide accommodation for certain groups of (unintentionally) homeless people.

Several of these categories refer to groups of people who may be adults at risk, including people who are vulnerable as a result of old age, mental illness, learning disability, physical disability or for some other special reason.

It also includes people who are ceasing to occupy accommodation because of violence or threats of violence from another person which are likely to be carried out.

Section 147 states that it is not reasonable to continue to occupy accommodation if it is probable that this will lead to domestic violence. Domestic Violence means “violence or threats of violence which are likely to be carried out” from an associated person.

Here an “associated person” is similar to the definition in the Family Law Act 1996 and includes the relatives, present and former spouses, cohabitees and people who live or have lived in the same household and the parents of a child.

Section 145 and 149 provide grounds for the granting of a Possession Order on the application of the Local Authority or Housing Association where a partner has left the dwelling house because of violence or threats of violence by the other partner and the court is satisfied that the partner who has left is likely to return.

A tenancy granted by a private landlord does not qualify.

In respect of domestic abuse, the government has stated that the guidance should not be interpreted restrictively. It should be understood to include threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender or sexuality.

A wide range of safeguarding issues in the home could come within this definition.

Under section 166A Local Authorities must have a housing allocation scheme. They must operate the scheme so that ‘reasonable preference’ is given to certain groups of people. These include homeless people and also people who need to move on ‘medical or welfare’ grounds. Housing providers have access to a range of measures including injunctions and court action to enforce tenancy conditions.

Under section 153A certain landlords may seek Anti-Social Behaviour Injunctions from the courts on the basis that there was conduct capable of causing nuisance to somebody else (who does not necessarily have to be identified), and which directly or indirectly relates to the housing management functions of the landlord.

Additionally, the court can attach a power of arrest to an injunction if the conduct involves the use or threat of violence, or if there is a significant risk of harm to the person in need of protection (section 153c). In some circumstances, a power of arrest can be attached to even a ‘without notice’ application, that is, where the perpetrator is not informed about the application (section 154).

Local authorities have a preventative duty under the Housing Act (1985) to take reasonable steps to ensure that accommodation does not cease to become available for applicants threatened with homelessness.

The Code of Guidance stresses that much can be done to prevent homelessness. It mentions special reasons for considering adults as a priority. One is ‘men and women without children who have suffered violence at home or who are at risk of further violence if they return home’.

The Anti-social Behaviour, Crime and Policing Act (2014) aims to provide more effective powers to tackle anti-social behaviour to provide better protection for victims and communities.

The new community trigger and community remedy aims to empower victims and communities, giving them a greater say in how agencies respond to complaints of anti-social behaviour and in out-of-court sanctions for offenders.

The Act also strengthens the protection afforded to the victims of forced marriage and those at risk of sexual harm.

Housing Act 1996

These acts give local authorities duties to give notice to the owner or occupier of a dwelling to take certain steps to clean and disinfect a dwelling, and destroy vermin.

The duty is triggered if the local authority believes the filthy and unwholesome state of the premises is prejudicial to health, or if the premises are verminous.

If the person does not do what the notice requires, the local authority has the power to carry out the work itself and make a reasonable charge. The person is also liable to a fine.

If a person, or their clothing, is verminous, the local authority can remove them – with their consent or with a court order – for cleansing. As a last resort the council has a power of entry to premises, using force if necessary. An order can be obtained from a magistrates’ court (section 287 of the 1936 Act).

Public Health Act 1936

Public Health Act 1961

Under the Environmental Protection Act, the local authority has powers of entry applying to statutory nuisances and can take action to deal with them. In the case of residential property, 24 hours’ notice is required, unless it is an emergency or there is danger to life and health (Schedule 3).

Environmental Protection Act (1990)

A non-molestation order under section 42 can prohibit a person (the accused) molesting another person (the complainant). In order to be able to use this legislation the complainant must be ‘associated’ with the complainant.

An associated person is defined widely and includes married couples, cohabitants, those living in the same household, relatives and engaged couples (as long as there is an agreement to marry).

The complainant is the only person who can start proceedings. In deciding whether or not to make an order, the court shall have regard to all circumstances including the need to secure the health, safety and well-being of the complainant. The complainant can start proceedings in respect of particular acts of molestation or general ones. In other words, it is possible for a complaint to be made even though the behaviour has only happened once.

There is no definition of molestation within the Act, but the Law Commission (Family Law, Domestic Violence and Occupation of the Matrimonial Home (1992)) defines molestation as an umbrella term which covers a wide range of behaviour, including any form of serious pestering or harassment. The degree of severity depends less upon its intrinsic nature than upon it being part of a pattern and upon its effect on the victim’.

The Act also allows for occupation orders and in the context of safeguarding adults at risk, such an order could serve to protect a person, at the same time enabling them to remain in their own home.

Such an order can enable a person to remain in occupation of a dwelling, forbid the other person to occupy all or some of the dwelling, specify that the other person should take reasonable care of the dwelling, or regulate how the dwelling is occupied.

Types of order that can be made by the court could include; enforcing the applicant’s entitlement to remain in occupation as against the other person; for the applicant to enter and remain in the dwelling or part of the dwelling; regulating the occupation of the dwelling by either or both parties; an order requiring the respondent to leave the dwelling or part of the dwelling; and an order excluding the respondent from a defined area in which the dwelling is included.

In coming to a decision the court must have regard to all of the circumstances of the case including:

• The housing needs and housing resources of the parties
• The financial resources of each of the parties
• The likely effect of any order, or of any decision by the court not to exercise its powers on the health, safety and well-being of the party
• The conduct of the parties in relation to each other and otherwise.

In addition, the court must consider the ‘balance of harm test’ which imposes an overriding requirement for the court to make an order if it appears that the applicant or child is likely to suffer significant harm if an order is not made which is greater than the harm that the respondent is likely to suffer if the order is made.

An order under this section may be for a specified period, until the occurrence of a specified event or until further order.

As with Non-Molestation Orders, Occupation Orders may be made on an ex-parte (in the absence of the respondent). In determining whether an order should be made in the absence of the respondent, the court will have regard to all of the circumstances including:

• Any risk of significant harm to the applicant, attributable to the conduct of the respondent, even if the order is not made immediately
• Whether it is likely that the applicant will be deterred or prevented from pursuing the application if any order is not made immediately
• Whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicants will be seriously prejudiced by the delay involved.

If the court makes an ex-parte order it must afford the respondent an opportunity to make representations relating to the order as soon as is just and convenience at a full hearing.

Under section 63 of the Act a court can grant orders protecting people from being forced into marriage, known as ‘Forced Marriage Protection Orders’.

Such orders may be particularly relevant to adults at risk, for instance, where an incapacitated adult is subject to an arranged marriage, or where an adult with capacity, but unable to give free and informed consent is being married. The application can be made by the person who needs protecting, or by a specified party including a local authority.

Family Law Act (1996)

Under the Act, an organisation commits the offence of corporate manslaughter where (a) it owes a duty of care, (b) it grossly breaches that duty because of how its activities are managed or organised, and (c) a person’s death results.

Under s.3 of the Health and Safety at Work Act 1974, there is a duty on the employer to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that non-employees who may be affected are not exposed to risks to their health and safety. Sometimes a prosecution under s.3 of the Act might be more directly connected with what is sometimes called ‘abuse’, rather than simply neglect or omission. For instance, in 2006, a couple who ran a private residential home in Great Yarmouth were reportedly not only convicted of ill treatment and wilful neglect (under s.127 of the Mental Health Act) but also of breach of the Health and Safety Work Act 1974.

Health and Safety at Work Act 1974

Under this Act there are criminal and civil remedies for protecting victims of harassment. This means that either the person being harassed can seek a civil order (from a County Court or High Court), or the matter can be reported to the Police with a view to criminal proceedings. The Act provides a civil remedy which enables a victim of harassment to seek an injunction against a person who is harassing them or may be likely to do so.

There is no need for a person to have been convicted of harassment in order for an injunction to be granted against them. If a court is satisfied that harassment has taken place or is apprehended, then they may grant the injunction (section 3).

So if the evidence was insufficient to result in a criminal prosecution and conviction beyond reasonable doubt, a civil injunction may be available on the balance of probabilities.

Under this Act a person must not pursue a course of conduct, which amounts to the harassment of another and which that person knows, or ought to know, amounts to harassment of the other.  The alleged harasser ought to know that their behaviour amounts to harassment if a reasonable person in possession of the same information would think that the course of conduct amounted to harassment.

Whereas non-molestation orders under the Family Law Act 1996 (see above) could be granted for one act of harassment, this Act can only be used if there has been more than one act (‘a course of conduct’).

The Act also creates a criminal offence of harassment, punishable by a fine or up to six months’ imprisonment (s.2).There is a further criminal offence in the Act, defined as the perpetrator pursuing a course of conduct that causes somebody else (on at least two occasions) that violence will be used against him or her.

The perpetrator has to know, or ought to have known, that the course of conduct would cause the other person to fear this (s.4).

In addition to sentencing for the criminal offence of harassment or putting a person in fear of violence, a court may also make a restraining order prohibiting the defendant from doing anything specified in the order, with a view to protecting the victim from harassment or fear of violence (s.5). Even if the defendant is acquitted in any criminal proceedings, the court can still make a restraining order to protect the victim from harassment (s.5A).

If the complainant decides to start civil proceedings, they may ask for an injunction to prevent further occurrences of the harassment and damages for the mental distress already caused.

The victim may apply to a Judge for an arrest warrant where the defendant is in breach of the terms of the injunction. Breach of the injunction is also a separate criminal offence punishable by a term of imprisonment or a fine. It is open to the court to award longer terms of imprisonment or higher fines for breach of an injunction than those which are available for the offence itself.

These orders are made by the court to protect the victim and are intended to prevent the defendant committing any further conduct which would amount to harassment or putting the person in fear of violence. Breach of a restraining order is punishable, upon conviction, by way of a fine or a term of imprisonment.

Protection from Harassment Act (1997)

Civil Law Remedies for financial and property harm

Apart from criminal law, there are also civil legal remedies relevant to finance and property harm suffered by vulnerable people. One of these involves a concept known as ‘undue influence’. It applies to gifts and wills. This is where a person has mental capacity to conduct the transaction – the will or the gift – but has had their will overborne not just by the influence, but by the undue influence, of somebody else.

When there is evidence of coercion or undue pressure, this is called ‘express’ undue influence. However, often there is no such evidence, but instead, there might have been ‘presumed’ undue influence. In addition to undue influence, the courts can simply set aside gifts or wills on the grounds that the person lacked capacity at the relevant time. Legal cases about wills and gifts are heard in the Chancery Division of the High Court that covers an area of law called ‘equity’.

In appropriate circumstances, if there are sufficient concerns about what they believe is likely to be undue influence, it may be appropriate to suggest to the person that they seek independent advice. It is also possible in some circumstances that undue influence could be associated with a criminal offence, in which case it might be a police matter.

Although undue influence is a concept in civil law – not criminal law – nonetheless it may in substance be relevant to a criminal conviction.

If gifts or wills are made by a person lacking capacity to do so at the relevant time, they can be set aside by the courts. Such cases are not decided by the Court of Protection but by the High Court.  Although there is now a general legal definition of mental capacity within the MCA, there are also ‘common law’ definitions of what capacity means in relation to the making of wills or gifts.

A further legal, equitable principle exists, called ‘proprietary estoppel’.  The key principle involved is that a person has acted to his or her own detriment by providing services to a second person, on the basis of – and relying on – assurances made by that second person.

Other Civil Law Remedies

Various civil legal proceedings can be taken against public bodies, including providers of services. These include ‘judicial review’ and also what are called ‘torts’, that is, civil wrongs such as negligence, trespass to the person and false imprisonment. People use these remedies to sue for financial compensation for the wrong.

These civil wrongs can be directly relevant to safeguarding and may constitute an alternative or additional remedy to any criminal case. Civil law operates on the balance of probability, whereas criminal law demands a more searching standard of proof – beyond reasonable doubt. Furthermore, these civil remedies have the potential to provide financial compensation for harm suffered.

Civil negligence cases are brought in respect of physical harm; sometimes psychological or financial harm might underpin the case. The key elements that have to be shown are (a) the existence of a duty of care, (b) breach of that duty of care because of an action, omission or decision that falls beneath the reasonable standard, and (c) harm flowing from that breach of duty.

Consumer Protection from Unfair Trading Regulations contains a number of offences, for instance, relating to misleading actions or omissions, aggressive practices and unfair practices (SI 2008/1277). Also the Cancellation of Contracts Made in Consumer’s Home or Place of Work Regulations 2008 creates certain rights (SI 2008/1816). There is other legislation that can be brought to bear, such as the Theft Act 1968, the Forgery and Counterfeiting Act 1981 and the Consumer Protection Act 1987.

 

Care Act Guidance

Care Act Easements in view of Covid-19

Carers Support Statutory Guidance 2018

Children’s and Family Act 2014

Crime and Disorder Act 1998

Criminal Justice and Courts Act 2015

Domestic Violence, Crime and Victim Act 2004

Domestic Abuse Act 2021

Equality Act 2010

Employment Equality (sexual orientation) Regulations 2003

Employment Equality (age) Regulations 2006

Employment Equality (Religion or Belief) Regulations 2003

Mental Health Act 2007

NHS Act 2006

Police and Criminal Evidence Act 1984

Race Relations Act 1976

Race Relations (Amendment) Act 2000

Safeguarding Vulnerable Groups Act 2006 

Sex Discrimination Act 1975

Serious Crime Act 2015