Safeguarding and Protecting Adults at Risk in Wales: The Social Services and Well-being - PowerPoint Presentation

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Safeguarding and Protecting Adults at Risk in Wales: The Social Services and Well-being (Wales) Act 2014ESRC Seminar 22nd September 2016

Professor John WilliamsLaw SchoolAberystwyth Universityjow@aber.ac.uk@legalolderSlide2

20/09/2016Adult Safeguarding and Protection in Wales

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Justice and elder abuseJustice (civil and criminal) seeking options were not explored

Incapacity was not recognised and when it was IMCAs were rarely usedLack of integration of domestic violence and elder abuse procedures

Need to liaise with CPS on special measures

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http://choice.aber.ac.uk/Slide4

Autonomy

Protection

Person’s right to decide

Article 8 European Convention on Human Rights

States duty to protect

Articles 2, 3 and 8 European Convention on Human Rights

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Human RightsDuty on public authorities not to act in a way that is incompatible with rights under the ECHR.

Part 7 of the SSWWA 2014 engages a number of rights:Article 2 right to have life protected;

Article 3 right not to be subjected to inhuman or degrading Treatment;

Article 5 right to liberty and security;

Article 6 right to a fair hearing;

Article 8 right to respect for private and family life, home, and correspondence.

1.2. Part 7 is intended to be read in the context of the Act as a whole

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Social Services and Well-being (Wales) Act 2014

Well-being”, in relation to a person, means well-being in relation to any of the following—(a) physical and mental health and emotional well-being;

(b) protection from abuse and neglect;

(c) education, training and recreation;

(d) domestic, family and personal relationships;

(e) contribution made to society;

(f) securing rights and entitlements;

(g) social and economic well-being;

(h) suitability of living accommodation.

(4)In relation to an adult, “well-being” also includes—

(a) control over day to day life;

participation in work.

s.2 SSW(W)A 2014

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General duty to provide preventative servicesPart 2 of the Code of Practice (General Functions) - prevention is at the heart of the Welsh Government’s programme of change for social services (para 155).

Part 2 emphasises that the culture must be embedded across all the authority including environment, transport, education, and leisure. The duty to provide rests on a ‘local authority’ – but Local Health Boards ‘have regard’ to the importance of preventative services (s.15(5)). 20/09/2016

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Other references to abuse and neglectRight to refuse assessment

Local authorities duty to assess (s.19) - an adult may refuse an assessment. Right to refuse may be overridden where the local authority suspects the person is experiencing or at risk of experiencing abuse or neglect (s.20(3)). In such a case the duty to assess remains.

Eligibility criteria – s.32 and Care and Support (Eligibility)(Wales) Regulations 2015.

Where an adult has needs for care and support, LA must decide whether they meet the eligibility criteria.

The first requirement of the criteria is that the need arises from the adult’s physical or mental health, age, disability, alcohol or drug dependency, or similar circumstances.

The need must relate to one or more of seven factors; included in the list is protection from abuse or neglect.

The adult cannot meet the need either alone, with the care support of willing others, or with help from community services.

The adult must be unlikely to achieve one or more personal outcomes without local authority support

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Other references to abuse and neglectIf the needs do not meet the criteria because one or more elements are not met, the local authority must decide whether it is still necessary to meet the needs to protect the adult from abuse or neglect or the risk of it.

Linked to this is the duty to meet any care and support needs that do not meet the eligibility criteria, but the local authority considers it necessary to meet the needs to protect the adult from abuse or neglect (s.35).20/09/2016

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Social Services and Well-being (Wales) Act 2014

Well-being duty

A person exercising functions under this Act

must seek to promote

the well-being of—

(a) people who need care and support, and

(b) carers who need support

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The ‘people approach’

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Social Services and Well-being (Wales) Act 2014

Other overarching duties: general

A person exercising functions under this Act in relation to a person needing care and support or to a carer with needs for support—

must comply with these duties

ascertain and have regard to

the

individual’s views, wishes and feelings,

have regard to the importance of promoting and respecting the

dignity

of the individual,

have regard to the

characteristics, culture and beliefs

of the individual (including, for example, language), and

have regard to the importance of

providing appropriate support

to enable the individual to participate in decisions that affect him or her to the extent that is appropriate in the circumstances.

well-being

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Adult at risk – s.126(1)

(1) An “adult at risk”… is an adult who— (a) is experiencing or is at risk of abuse or neglect,(b) has needs for care and support (whether or not the authority is meeting any of those needs), and(c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

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Abuse

Physical abuse

- hitting, slapping, over or misuse of medication, undue restraint, or inappropriate sanctions;

Sexual abuse -

rape and sexual assault of sexual acts to which the vulnerable adult has not or could not consent and/or was pressured into consenting;

Psychological abuse -

threats of harm or abandonment, humiliation, verbal or racial abuse, isolation or withdrawal from services or supportive networks;

Neglec

t - failure to access medical care or services, negligence in the face of risk - taking, failure to give prescribed medication, failure to assist in personal hygiene or the provision of food, shelter, clothing

Financial abuse in relation to people who may have needs for care and support

unexpected change to their will;

sudden sale or transfer of the home;

unusual activity in a bank account;

sudden inclusion of additional names on a bank account;

signature does not resemble the person’s normal signature;

reluctance or anxiety by the person when discussing their financial affairs;

giving a substantial gift to a carer or other third party;

A sudden interest by a relative or other third party in the welfare of the person

bills remaining unpaid;

complaints that personal property is missing;

A decline in personal appearance that may indicate that diet and personal requirements are being ignored;

deliberate isolation from friends and family giving another person total control of their decision-making

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Duty to make enquiries – s.126(2)

If a LA has reasonable cause to suspect that a person within its area (whether or not ordinarily resident there) is an adult at risk, it must—(a) make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken (whether under this Act or otherwise) and, if so, what and by whom, and

(b) decide whether any such action should be taken.

Regulations must include provision about recording in a care and support plan the conclusions of any enquiries.

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Duty to make enquiries – s.126(2)

Record point at which duty is engagedNot to be rushed, but timescale should be set – normally 7 daysRecord reasons for delays

Enquiries are information gathering in nature rather than a formal commissioned investigation as part of the Protection of Vulnerable Adult process.

3 components

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a ‘reasonable cause to suspect’;

the making of enquiries; and

recording the outcome of the enquiriesSlide16

The right to refuse. this does not automatically relieve the LA of its duty, but may reduce effectiveness. The wishes and feelings of the adult at risk;The possibility that he or she is not making decisions freely;

Do they have capacity under the MCA 2005 and if not, should an IMCA be involved;Is there is a need to involve an advocate;Carry out the enquiry sensitively with the minimum distress to the person and others (for example, carers and family members);Does the perpetrator have any needs for care and support;

Is the perpetrator is providing care or support for another adult at risk or child who may be at risk;

The need for the LA to work closely with and involve other agencies able to assist with the enquiries and contribute to achieving identified outcomes;

The need to be aware of contaminating evidence that might be used in a criminal investigation;

The importance of the enquiries being proportionate and compatible with the ECHR and the SSWWA 2014

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Adult Protection and Support Order – s.127

(2) The purposes of an APSO are—(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk,(b) to enable the authorised officer to ascertain whether that person is making decisions freely, and

(c) to enable the authorised officer properly to assess whether the person is an adult at risk and to make a decision as required by section 126(2) on what, if any, action should be taken.

An authorised officer may apply to a justice of the peace for an order (“an adult protection and support order”) in relation to a person living in any premises within a LA’s area

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Adult Protection and Support Orders (APSO) – s.127‘A person is “living” in any premises if he or she resides there for a period of time either permanently or temporarily regardless of whether they have a legal or other interest in the premises.’

‘Premises’ includedomestic premises;a residential care home or a nursing home;a hospital;any other building, structure, mobile home or caravan in which the person is living.

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Making decisions freely??The person allegedly exercising undue influence is in a position of trust - care home staff, carer or relative.Financial abuse - has the person been offered independent advice?

Is the person allegedly exercising undue influence preventing the interview in private from taking place?Is the particular decision the person is taking untypical and out of character based on what the authorised officers and those accompanying him or her know or have been told about them?Slide20

Accompanied by another specified personSo far as is possible, such person or persons must be identified as part of the application. The key worker (social worker or health care worker);

Domiciliary care worker;Advocate (statutory or non-statutory);Family member or close friend;Best interest assessor;General Practitioner;Approved Mental Health Professional.

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Criteria

The authorised officer, a constable and any other specified person may enter the premises for the purposes set out in subsection (2).A justice of the peace may make an APSO if satisfied that—the authorised officer has reasonable cause to suspect that a person is an adult at risk,

it is necessary for the authorised officer to gain access to the person in order properly to assess whether the person is an adult at risk and to make a decision as required by section 126(2) on what, if any, action should be taken,

making an order is necessary in order to fulfil the purposes set out in subsection (2), and

exercising the power of entry conferred by the order will not result in the person being at greater risk of abuse or neglect.

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Duty on relevant partners to report – s.1281) If a relevant partner of a LA has reasonable cause to suspect that a person is an adult at risk and appears to be within the authority’s area, it must inform the LA of that fact.

(2) If the person that the relevant partner has reasonable cause to suspect is an adult at risk appears to be within the area of a LA other than one of which it is a relevant partner, it must inform that other LA.(3) If a LA has reasonable cause to suspect that a person within its area at any time is an adult at risk and is living or proposing to live in the area of another LA (or a LA in England), it must inform that other authority.

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National Independent Safeguarding Board

advise and support Safeguarding Boards;promote improvement, consistency and collaboration;communicate & share good practice;report on adequacy & effectiveness of safeguarding;make recommendations to Welsh Ministers;make an annual report to Welsh Ministers.

Safeguarding Boards

Objective to protect and to prevent.

Regulations and Statutory Guidance specify:

Lead Partner;

Safeguarding Board Areas;

Functions and Procedures;

User Participation;

Annual Plans and Annual Reports;Funding.Slide24

Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015“Ask and Act” - targeted enquiry to be practiced across the Public Service to identify violence against women, domestic abuse and sexual violence.

Targeted enquiry - the recognition of indicators of violence against women, domestic abuse and sexual violence as a prompt for a professional to ask their client whether they have been affected by any of these issues.

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IssuesIs there a risk that an APSO will leave the person at greater risk – no power of removal?To what extent will the new provisions lead to preventative work?

How do the safeguarding provisions link in with social care?20/09/2016

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