Safeguarding Vulnerable Adults and the Law

Michael Mandelstam

• Publisher: Jessica Kingsley Publishers
• Year: 2008
• Print ISBN: 9781843106920
• eBook ISBN: 9781846428807
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

The protection of vulnerable adults is a fast emerging area of work for local authorities, the NHS and other agencies. Safeguarding Vulnerable Adults and the Law, sets this within a comprehensive legal framework. The relevant law and guidance is extensive. It includes Department of Health guidance (No Secrets), human rights, the regulation of health and social care providers, the barring of carers from working with vulnerable adults, care standards tribunal cases, mental capacity, undue influence, assault, battery, wilful neglect, ill treatment, manslaughter, murder, theft, fraud, sexual offences, data protection and the sharing of information.

The book focuses on how these areas of law apply to vulnerable adults, and brings together an extensive body of case law to illustrate this. Also covered is how local authorities and the NHS may themselves be implicated in the harm - through abuse, neglect or omission - suffered by vulnerable adults. For example, in terms of the gross lapses in standards of care, infection control, nutrition and basic dignity sometimes to be found in hospitals.

All those working in community care, adult social work, health care and housing will find this book invaluable. Local authorities, the NHS, voluntary organisations and students will find this to be essential reading.

CHAPTER 1

Introduction

1.1Department of Health guidance

1.1.1Vulnerable adult

1.1.2Abuse

1.2Scope of what is meant by adult protection or safeguarding adults

1.2.1Vulnerability to harm

1.3Legal perspective

1.3.1Breadth of law relevant to safeguarding adults

1.4Approach of book

1.5Application to United Kingdom

1.6Summary of book

This book attempts to outline what has come to be known as adult protection or safeguarding adults. It seeks to do this in two main ways. First, it uses many examples to illustrate the harm which vulnerable adults may suffer, generally through conduct comprising abuse, neglect or omission. Second, it sets these in a legal context.

The sort of matter with which it deals covers a wide range. Agency staff not turning up and vulnerable older people having accidents in their homes and dying as a result. People with learning disabilities suffering abuse or neglect, because the local authority has forgotten about them or refuses to find the money to meet the needs which it has a duty to meet. Older, sick and ill people being charged large sums of money by local authorities for care home placements when legally those placements should be free of charge. Or people, clearly in need, being told by local authorities that they are not needy enough to receive that help; and accidents, self-neglect and undermining of dignity occurring as a result. The vulnerable person with learning disabilities, grossly exploited and shortly to be murdered, who might be deemed ineligible for help. Or those, eligible for help, left without adequate safeguarding support – in the name of choice, control and independence. A local authority failing to invoke its emergency rehousing procedure for a couple with learning disabilities (and their children) known to be at significant risk, with the result that the couple are subject to a weekend of horrific torture by a group of youths who had been exploiting the couple.

Systematic and deliberate shortcuts in infection control contributing to scores of deaths in a hospital; NHS chief executives concealing the problem and making it worse. Understaffing leading to gross lapses in standards of care. Overcrowded hospitals with older people being moved from ward to ward to their clinical detriment. Mental health wards running at an occupancy rate of up to 135 per cent. Dying patients being nursed in the dining room while other patients eat. Hospital discharge of elderly inpatients taking place unplanned in the middle of the night. Patients not being helped with eating and drinking when they need help. Malnourishment in hospitals. Patients told to relieve their bladder and bowel in bed. Soiled clothing and bedding not being changed for hours. People tied up in wheelchairs or on commodes for extended periods.

Care home workers who kick, push, shove, beat, handle roughly, verbally abuse, neglect, deceive and steal. Managers of care homes standing back and doing nothing even when receiving reports about this. 89-year old men left to die in an upstairs care home room, with suppurating pressure sores down to the bone, the care home owner hacking off rotting flesh with a pair of scissors, wearing gloves with which he had just scooped faeces off the sheets. Care workers who force medication down people’s throats, so that they have to swallow to stop from choking, throw residents across the room, pinch them. The care home worker who taunts and distresses residents with learning disabilities. Or who sleeps when she is meant to be on duty – during which time a resident catches his head between the headboard and rails of his bed, suffers brain damage and dies – and then falsifies the night time record.

Carers wilfully neglecting people with severe learning disabilities by leaving them locked up in a car on a hot day for hours while the manager and his assistant go to a betting shop. Professionals engaging in improper and indeed unlawful relationships with mentally vulnerable service users.

Financial abuse on a large scale involving a whole range of people in positions of trust, close family members, health care workers, social services care managers, solicitors, clergy, carers, bank staff. Theft, forgery, fraud, false accounting, robbery, burglary committed by those (a) already in a longstanding position of trust, (b) who have very recently but rapidly gained the victim’s trust, or (c) who have deliberately targeted vulnerable, often older but also younger, adults. A nurse stealing money from a patient, a war hero, dying in hospital. Carers, trusted absolutely and treated like daughters, stealing from 76-year old blind women. Families driven to installing hidden surveillance cameras in pink teddy bears, so as to catch NHS primary care trust health care assistants stealing money in the home of 75-year old women suffering from leukaemia. A man of low intelligence taken by his carer to the building society every day for six months until he has transferred to the carer £60,000, his inheritance from this father. A friendly neighbour taking an interest in the vulnerable, elderly man next door exercising ‘undue influence’ and relieving him in a short space of time of £300,000, 90 per cent of his liquid assets.

Vicars forging the wills of parishioners while on their death bed in hospital. An old friend getting a mentally incapacitated person to change her will – in favour of the old friend. Mother and daughter carers in a private capacity from the next village getting a mentally incapacitated woman to sign over her £300,000 house to them, thereby depriving a children’s hospital (to which she had left the house in her will). A former senior civil servant, suffering from Alzheimer’s disease and cancer, being tricked fraudulently out of his £500,000 life savings by a builder. Cold calling, bogus tradespersons getting an older person to agree to roofing work that is not needed, sitting on the roof all morning, then driving the person to the bank to be paid hundreds of pounds.

It is practices and occurrences such as these that lie at the heart of the book.

1.1 DEPARTMENT OF HEALTH GUIDANCE

During the 1990s concern grew about the abuse of vulnerable adults. For example, in 1992, the Social Services Inspectorate had published Confronting elder abuse (SSI 1992) followed by some practice guidelines called No longer afraid (SSI 1993).

In 2000, the Department of Health published guidance, called No secrets, aimed primarily, but not only, at local social services authorities, and concerned with protecting vulnerable adults from abuse. It gave those authorities the lead in adult protection, and in coordinating other local agencies including the NHS, the police, housing providers etc. (DH 2000).

The term ‘adult protection’, or ‘protecting vulnerable adults’ began to be widely used. By 2007, that term was in turn being replaced by another, ‘safeguarding adults’. In Scotland, the term adult protection remains and is now embodied in legislation. This book uses the two terms generally interchangeably. Both are in essence concerned with vulnerable adults, not just any adult.

1.1.1 VULNERABLE ADULT

The No secrets guidance defines a vulnerable adult as a person ‘who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him-or herself, or unable to protect him-or herself against significant harm or exploitation.’

1.1.2 ABUSE

The guidance refers to abuse as taking various forms, including physical, sexual, psychological, financial or material, neglect and acts of omission, discriminatory, and institutional. It states that some abuse will also constitute potentially a criminal offence, for instance in relation to physical assault, sexual assault and rape, theft, fraud, etc.

1. 2 SCOPE OF WHAT IS MEANT BY ADULT PROTECTION OR SAFEGUARDING ADULTS

Despite the No secrets guidance, the scope of what is meant by protecting and safeguarding vulnerable adults is ill-defined. This is partly because there is no specific legislation in England setting out either definitions or statutory duties and powers of intervention. There is no equivalent of the Children Act 1989, which gives local authorities in England and Wales clear powers of intervention to protect children who are at risk of significant harm. This situation contrasts with Scotland, which passed an Adult Support and Protection Act in 2007 (currently in the process of being brought into force), providing statutory definitions and conferring on Scottish local authorities just such powers of intervention. This followed one particular investigation into abuse of people with learning disabilities in Scotland (SWSI 2004).

1.2.1 VULNERABILITY TO HARM

In selecting examples and relevant law, the book has used to full extent the definition of harm and abuse given in the No secrets guidance – in particular taking account of the reference to acts of omission or neglect and to institutional abuse. Heed has also been paid to the Adult Support and Protection (Scotland) Act 2007; it has of course no direct legal application to England, but usefully sets out definitions of harm, vulnerability, and adults at risk.

The book therefore adopts a broad if selective approach. For instance, at one extreme, it includes the harm perpetrated by neglectful, reckless, sadistic, bullying or dishonest individuals, whether known to the victim or strangers. Equally, it considers the systemic harm – in term of neglect and acts of omission – sometimes perpetrated or tolerated by institutions and organisations, including NHS bodies, local authorities and care providers generally.

1.3 LEGAL PERSPECTIVE

The book considers the protection and safeguarding of vulnerable adults in legal perspective. Not least for intervention to take place, a legal underpinning of some sort may often be essential. Law is not necessarily a magic wand in this respect but it serves as an additional, and sometimes essential, tool with which to intervene.

Law can be viewed as having a preventative, ameliorative, remedial or punitive role. For instance, preventatively, assessment of vulnerable people and their informal carers by local authorities under community care legislation may result in social services providing assistance and reducing stress in a caring situation – which is beginning to tip into possible abuse or neglect.

If matters have already deteriorated, a compulsory (ameliorative or remedial) intervention might be possible – for instance, under the Mental Capacity Act 2005 if a vulnerable person lacks capacity to take relevant decisions to protect himself or herself from serious harm. If, unfortunately, the situation nevertheless results in a criminal offence being committed, then the criminal law may provide a punitive measure in response, for example, to theft, assault, wilful neglect etc.

1.3.1 BREADTH OF LAW RELEVANT TO SAFEGUARDING ADULTS

The breadth of law considered in the book is wide and includes, for example, social services and NHS functions, regulation of health and social care providers, the banning and barring of people from working with vulnerable adults, mental capacity, mental disorder, human rights, environmental health, civil torts (negligence, trespass to the person, false imprisonment), the civil equitable remedy associated with ‘undue influence’, assault and battery, the giving of evidence by vulnerable people in court, manslaughter, murder, assisted suicide, theft, fraud, false accounting, sexual offences, the wilful neglect or ill-treatment of people with a mental disorder or mental incapacity, and information disclosure and confidentiality.

However, this is clearly not, neither is it intended to be, a detailed legal textbook. To cover all these areas of law in depth would make the book unwieldy and lose focus. Instead, it illustrates this law by picking out particular principles and legal cases relevant to vulnerable adults. These legal cases are deployed extensively in the book, in order both to illustrate the law in practical terms as well as to depict the plight in which vulnerable people may find themselves.

Furthermore, because the nature of adult protection is precisely so ill-defined, in terms of both law and practice, the book can lay no claim to having covered all that could or should be covered. In one sense, it is exploratory only, in an embryonic field of law and practice.

1.4 APPROACH OF BOOK

The book takes no moral standpoint; it attempts simply to identify harm that befalls certain groups of people because of their greater vulnerability, and then to set this in legal context. Equally, however, there are no sacred cows.

Thus, the harm which one individual, in a position of trust, may inflict on another can make painful reading. But it was ever so; individuals have always inflicted harm upon one another, in a sometimes despicable manner. Perhaps more noteworthy, therefore, is the harm caused – directly and indirectly – by the conduct of public bodies such as the NHS or local social services authorities. We are told by politicians that we have modern, enlightened and even world class health and welfare services. Yet these are sometimes implicated, directly or indirectly, in some of the very harm to vulnerable adults which forms the subject matter of this book. This is disconcerting because they are the public welfare services which are meant, with public money, to provide care for us all and to be taking a lead in adult protection and safeguarding activities. And behind NHS bodies and local authorities at local level lies central government; it would seem that inadvertently the latter’s policies are to some extent contributing to, or at least associated with, the harm befalling vulnerable adults.

The book also carries reminders that, important though safeguarding and protecting vulnerable adults is, balance and proportionality are required in both identifying and responding to abuse.

1.5 APPLICATION TO UNITED KINGDOM

The book concentrates on England, although much of the law discussed is either the same, or has its equiva...

Table of contents

• Cover
• By the Same Author
• Title
• Copyright
• Contents
• 1. Introduction
• 2. Background: policy, definition and prevalence
• 3. Local authority social services
• 4. National Health Service legislation
• 5. Regulation of care provision for vulnerable adults
• 6. Mental capacity
• 7. National Assistance Act, environmental health, Mental Health Act and other interventions
• 8. Physical and sexual harm and abuse
• 9. Financial abuse
• 10. Disclosure of personal information and confidentiality
• 11. Adult protection: procedural aspects
• References