Safeguarding Adults Part 3: Legal Framework

INTRODUCTION

At present, the legal framework surrounding adult abuse is fragmented, but it should NOT be assumed that Social Services have no legal powers to intervene in a case of adult abuse. This section provides information about supportive legislation that has been built up over many years. It is suggested that staff seek advice from their respective legal departments when considering action in the following ways. Legal action may provide a solution to problems being encountered when working with vulnerable adults. The nature of that intervention will depend on the circumstances of each case and the type of abuse.

CRIMINAL LAW

Vulnerable adults may be the subject of criminal acts e.g. Physical assaults, theft, sexual offences. Where they are witnesses to crimes, many will fit the definitions in “Achieving Best Evidence in Criminal Proceedings” and may be offered special measures. These measures offer assistance to vulnerable witnesses giving evidence in court and include a screen between themselves and the accused; giving evidence by live link or by a recorded video; giving evidence in private; removal of wigs and gowns; the use of an intermediary (where available); a supporter in court and a range of communication aids. This can affect the course of the investigation and joint work with the Police becomes even more important. The Police have prime responsibility to investigate criminal offences and should lead criminal investigations but this does not preclude good multi-agency work. Evidence can be lost if referral to the Police is delayed and advice should be sought early. As potential witnesses to a crime, staff must make careful contemporaneous records.

Police Powers and Criminal Investigation

  • In situations where legal action or separation of a person from their carer may be appropriate close co-operation with the police can be important.
  • The police have general powers to keep the peace and safeguard the public, these include:
    • Powers of entry to a property for the purpose of saving life or limb or to prevent serious damage to property.
    • Powers of arrest where a person is suspected of committing or is about to commit an arrestable offence.
  • The police should be informed of situations where a criminal investigation is warranted under criminal law. The standard of evidence required for a successful prosecution will be “proof beyond reasonable doubt”, therefore the police will need to obtain all possible evidence and include statements from both the victim and witnesses if available.
  • The ultimate decision whether to prosecute lies with the Crown Prosecution Service. They will have to take into account the weight of the evidence and the potential for a prosecution going ahead.

The Police and Criminal Evidence Act 1984

Section 17: Allows a police officer to search and enter any premises without a warrant for the purpose of saving life or limb or preventing serious damage to property.

Section 24: Allows a police officer to arrest any person who is suspected of having committed, or is about to commit an arrestable offence.

Section 25: Allows a police officer, where there are reasonable grounds, to make an arrest of someone to prevent them causing physical injury to another person, or to protect a child or other vulnerable person.

Youth Justice and Criminal Evidence Act 1999

This Act gives the police and the courts the ability to offer ‘Special Measures’ to vulnerable victims and witnesses to crime.

The special measures are:

  1. Video recorded evidence
  2. Evidence presented to court by live link
  3. Evidence in private
  4. Screening witness from the accused
  5. Removal of wigs and gowns
  6. Aides to communication
  7. Support from an intermediary

Sexual Offences Act 2003

www.legislation.hmso.gov.uk

This Act repeals all previous legislation on sexual offences. Consent is a key issue in the Act and the freedom to make choices. The main sexual offences are rape (now including penile penetration of the mouth, anus or vagina), assault by penetration, and sexual assault by touching and causing sexual activity without consent. Sexual relations with certain adult relatives have been clarified. There are a set of offences in relation to mentally disordered adults where choice is impeded. This includes adults with mental health problems or learning disability. There is specific protection from the misuse of a position of trust. It is an offence for someone who is in a relationship of care to have a sexual relationship with the mentally disordered adult.

Protection from Harassment 1997

www.hmso.gov.uk

This legislation can be used when matters fall short of a physical attack but the vulnerable adult is being intimidated or harassed by an abuser. Injunctions can be sought. This is a civil law but creates the offence of harassment.

Mental Capacity

The Issue of mental capacity is critical in deciding action in safeguarding adults. There is a presumption in English law that everyone has mental capacity until the contrary is proved. In undertaking investigations, capacity to consent is a key issue. There are two key capacity issues and the first is the capacity of the adult to consent to the sexual act or other act about which there is concern. If the adult has capacity and consented to the “abusive” act, it is unlikely that any prosecution can take place although the Police should still be consulted. A vulnerable adult’s capacity may fluctuate over time. This can be critical in determining whether an act is abusive or consensual.

The second key area where capacity is significant is consent to the process of the investigation – active involvement of the Police, interviews, and medical assessment. If the vulnerable adult lacks capacity for this function, it is inappropriate for their consent to the process to be sought. However, they should be engaged with the process in any way possible. If the adult has capacity and declines assistance and refuses an investigation, actions will be limited. Such situations should be discussed at a Safeguarding / Adult Protection Conference to ensure all agencies are aware of the risks and the danger signals.

In assessing capacity, it is important to distinguish between capacity to make the decision and the ability to communicate the decision. The Mental Capacity Act 2005 makes clear that a functional approach to capacity must be taken and the adult must be assessed in relation to their capacity for this specific decision, not a general assessment. The test is whether the person is capable of understanding the particular decision. If a particular decision is trivial, a low degree of understanding will suffice. The more complex the decision the greater understanding is needed.

If an adult lacks capacity, professionals involved need to act in the vulnerable adult’s best interests. Capacity must have been carefully assessed and recorded. Legal advice should be sought. In the context of medical decisions, best interests is defined as where medical treatment is: “necessary to save life or prevent a deterioration or ensure an improvement in the patient’s physical or mental health; in accordance with a practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment in question.” Code of Practice: Mental Health Act 1983

The Mental Capacity Act 2005

www.dca.gov.uk/capacity

This Act has set five key principles which make it clear that a person should be seen as having capacity unless proven otherwise. These are –

  • A person must be assumed to have capacity unless it is established he lacks capacity.
  • A person is not to be treated as unable to make decisions unless all practicable steps to help him to do so have been taken without success.
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  • 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 best interests.
  • Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Someone is unable to make a decision for himself if he is unable

  • To understand the information relevant to the decision
  • To retain the information
  • To use or weigh that information as part of the process of making the decision
  • To communicate his decision by any means.

There is a best interests checklist for people acting on behalf of others. This includes the following-

  • Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and if so, when
  • Must permit and encourage the person to participate as fully as possible in any act and decision
  • Must consider the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity and the other factors he would be likely to consider if he were able to do so.
  • He must take account if it is practical and appropriate to consult them, the views of anyone named by the person for consultation, carers, donees of lasting power of attorney or court appointed deputies.

Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person and if the restraint is proportionate to the likelihood and seriousness of harm.

The Act has extended the Court of Protection’s role to cover welfare matters not just financial matters. After implementation, a Lasting Power of Attorney will replace the Enduring Power of Attorney but can specify other decisions on wider welfare matters as well as finance. Most day to day informal decisions will be able to be taken without interference of the court with a general authority resting on the carer. The Court can appoint deputies who would help with welfare and financial decisions where the person lost capacity without appointing a Lasting Power of Attorney. This replaces the current system of receivership covering financial decision making and extends it to include health and welfare. There will be a new Public Guardian and a new style Court of Protection. The Act has created Independent Mental Capacity Advocates to support those lacking capacity who have no one else to speak for them when decisions are taken about serious medical treatment or long term residential care. See page 113.

The Mental Capacity Act creates new criminal offences of ill treatment or neglect of an adult who lacks mental capacity.

The Mental Capacity Act was partly implemented in April 2007, with the rest being implemented in October 2007.

Inherent Jurisdiction: The High Court may use its inherent jurisdiction to make a declaration as to whether action which is proposed to be taken is in the best interests for a person or is unlawful. The High Court can make decisions as to appropriate place of residence with someone who does not have capacity to make decisions by themselves and can also make injunctions to back up any residents and to stop removal.

Local Authority Adult Social Services

Local authorities have placed on them a number of statutory powers and duties to provide services for adults who need them. Some of the important powers and duties are covered in the legislation below –

The Health Services and Public Health Act 1968

Section 45 (1) allows local authorities with a Social Services responsibility to promote the welfare of old people (subject to the approvals and directions contained in Circular LAC (93) (10). This legislation is underpinned by Section 29 of the National Assistance Act 1948 (local authority provision of services other than residential accommodation for a defined class of disabled adult) as extended by Section 2 of the Chronically Sick and Disabled Persons Act 1970 (provision of welfare services).

The National Assistance Act 1948

Residential accommodation and other services may be provided under Sections 21, 24, 26 and 29 of the National Assistance Act 1948. Section 1 places a duty on local authorities to provide residential accommodation to those over 18 “who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.” The relevant approvals and directions under those sections are contained in LAC (93) (10).

The National Health Service and Community Care Act 1990

Section 47 requires local authorities with a Social Services responsibility to carry out an assessment of need where people appear to them to be in need of community care services.

The Housing Act 1985 Part lll (Homelessness)

Local authorities have a preventative duty (under Section 66) to take reasonable steps to ensure that accommodation does not cease to become available for people threatened with homelessness (para 10.1 Code of Guidance). The Code of Guidance stresses that much can be done to prevent homelessness. It mentions special reasons for considering people 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”.

Section 72 of the Act says that a housing authority may seek help from another authority (Housing Association, Housing Authority or Social Services Department) to discharge their duties. The authority asked for help shall co-operate as is reasonable in the circumstances. This will help, for example, a woman fleeing violence who cannot be referred because of having a local connection with an area but feels she would not be safe living in the area.

RESIDENTIAL CARE AND THE LAW

Care Standards Act 2000

The Care Standards Act sets national minimum standards for care settings and set up new inspection arrangements. The Act requires homes providing personal care and accommodation to be registered and brought in registration and inspection requirements for domiciliary care,

day care and nursing agencies. The Act created the General Social Care Council and the requirements for registration. The quality of residential provision is assured through this Act. The Care Standards Act requires people and organisations providing care to be registered as “fit”, running services according to regulations and standards. Regulation 13 (6) requires the registered person to “make arrangements by training of staff or other measure to prevent service users being harmed or suffering abuse or being placed at risk of harm or abuse”. The standards state that homes must have robust procedures for responding to suspicion or evidence of abuse and neglect and ensure the safety and protection of service users. All allegations and incidents of abuse and action taken must be recorded. Section 31 of the Act empowers inspectors to enter a home at any time and interview the manager, staff or persons accommodated, to inspect and take copies of documents.

Regulation 13 (7) requires no physical restraint unless “restraint of the kind employed is the only practicable means of securing the welfare of that or any other service user and there are exceptional circumstances”

There are restrictions on acting for service users and Regulation 20 states a registered person cannot pay money belonging to a service user into a bank account unless the account is in the name of the service user. There is a requirement for a clear complaint policy and Regulation 37 requires the registered person to notify the Commission without delay of any event which adversely affects the well being of a service user and any allegation of misconduct by the registered person or staff. Failure to notify is an offence.

The Protection of Vulnerable Adults (POVA) list was set out in the Care Standards Act but implemented partially on 26 July 2004. Through referrals to and checks against the list, care workers who have harmed a vulnerable adult or placed a vulnerable adult at risk of harm will be banned from working in a care position with vulnerable adults. The scheme is currently implemented within care homes and domiciliary care but will be extended in the future.

Employers and the Care Quality Commission can refer people to POVA and checks are made on it for relevant posts as part of CRB checks.

A person with mental capacity is entitled to refuse the provision of services even though the professional opinion is that this will cause deterioration or abuse or neglect. In such situations, a multi-agency conference is recommended. There is one situation that allows for intervention without consent where the Mental Capacity Act and the Mental Health Act are not relevant or helpful.

The National Assistance Act 1948, Section 47

Whenever you consider the use of the above Section, seek legal advice as you will need to consider Article 5 of the European Convention of Human Rights, which states that “Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law: but also allows for

(e) “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; “.

Therefore, not only do you have to fulfil the requirements of Section 47 of the 1948 Act, you also have to fulfil the requirements of Article 5(e) of the Human Rights Act. This means you have to show that in some sense there is a risk of infectious disease, or the person is of unsound mind

(this is not a medical definition but a broader legal definition), or an alcoholic or drug addict or vagrant within the broad meaning of those terms.

Section 47 of the 1948 Act gives power to a district council to apply to a Magistrates Court to remove a person from his/her home on the grounds:

  • that the person is suffering from grave chronic disease or, being aged, infirm or physically incapacitated, is living in unsanitary conditions; and
  • that the person is unable to devote to himself, and is not receiving from other persons, proper care and attention; and
  • that his/her removal from home is necessary, either in his own interests or for preventing injury to the health of, or serious nuisance to, other persons.

In practice, this section of the National Assistance Act is rarely used. However, its use could be considered if there is no alternative and the risk is considered to be very grave. An order will last for up to three months depending on the circumstances in which it is obtained.

A modification of the Section 47 procedure is provided by the National Assistance (Amendment) Act 1951 to deal with situations in which it is necessary to remove the adult without delay. An order can be made which lasts for up to 21 days.

Public Health Act 1936

District councils have powers under this Act to give notice to owners or occupiers if those premises are “in such a filthy or unwholesome condition as to be prejudicial to health”. The notice can require the owner or occupier to clean the premises or the Council can carry out the work itself.

FINANCIAL PROTECTION

The prevention of financial abuse can be difficult, with evidence difficult to glean and issues about consent complex. It is important to remember that such abuse may be a crime and consult the Police. Many of the provisions below will change once the Mental Capacity Act is fully implemented.

Receivership

Where someone is incapable of managing their property and affairs, an application can currently be made to the Court of Protection for the appointment of a Receiver to manage the adult’s financial affairs. The person to be appointed can be a relative, a friend, an officer from the local authority, a solicitor, the Public Trustee or any other suitable person.  Where the adult’s capital exceeds £5,000 or receives an occupational pension or the adult has an interest in a property then a Receivership application should be made. If however, the adult’s resources are limited it might be possible for the Court to issue a Short Order.  All applications submitted to the Court must be accompanied by a statement confirming that the adult is currently “incapable by reason of mental disorder of managing and administering his property and affairs”. The medical certificate will have to be completed by the adult’s doctor or consultant, and must be in the approved Court of Protection form called a CP3.  Legal advice should always be obtained. Social Services can make the application to the Court and in appropriate cases can be appointed as the receiver.

Power of Attorney

The adult can, through a legal process, empower someone else to act on their behalf in relation to all their financial affairs. Unless any restrictions or conditions are placed on the Attorney this person will be able to do almost anything that the adult would have done, for example sign cheques, or withdraw money from savings accounts. The adult granting the Power of Attorney must be mentally capable at the time and can appoint almost anyone who is over 18 years of age. Anyone who is thinking of making a Power of Attorney should consider making this an Enduring Power of Attorney. An ordinary Power of Attorney lasts only so long as the person who grants it is mentally capable whereas an Enduring Power of Attorney allows for incapacity.

Enduring Power of Attorney

An enduring Power of Attorney is a Power of Attorney which continues after the adult becomes mentally incapable of managing their own affairs. When the Attorney believes that the adult is or is becoming mentally incapable, the Attorney must apply to register the Enduring Power of Attorney with the Court of Protection before they can act or continue to act under it.

Appointee

The Benefits Agency can appoint someone else to receive the adult’s benefits and to use that money to pay expenses such as household bills, food and personal items. An appointee should be a close relative or friend or someone who is regularly in contact with the adult. The person who is willing to act as the appointee must contact the local Benefits Agency office, who will arrange to interview the adult to decide whether they are mentally or physically incapable of acting on their own behalf. Where an adult has no one who can take this on, it is technically possible for someone from the Council to do so but is not generally considered appropriate.

Agent

If the adult cannot go to the Post Office because of a physical disability or incapacity they could either fill in the back of the payment order or they could arrange for a suitable person to be made their Agent. The adult will need to contact the local Benefits Agency office and the adult can cancel this arrangement at any time they see fit. The Attorney and Agent assume that the adult is able to make the decision. An attorney is in fact under a legal duty not to misuse the power granted to them. If they do so, they can be sued in the Civil Courts.

MENTAL HEALTH

The Mental Health Act (MHA) 1983

This Act provides for the detention and treatment of mentally disordered individuals and if use is being considered an Approved Social Worker should advise.

Section 115: Powers of Entry and Inspection.

An Approved Social Worker may at all reasonable times enter and inspect any premises in which a mentally disordered adult is living, if she/he has reasonable cause to believe that the patient is not under proper care.

Section 115 does not allow an approved social worker to force entry, although obstruction may be an offence under Section 129, and the approved social worker can apply for a warrant under Section 135. The adult need not be named in this warrant, so this allows for investigation of suspected mistreatment of people whose identity is unknown but whose whereabouts are known. The evidence used to obtain the warrant can be about mistreatment in the past and therefore allows for accumulation of evidence over a period of time.

Section 135 allows an Approved Social Worker to apply for a warrant to search for and remove adults where there is a reasonable cause to suspect that an adult believed to be suffering from

a mental disorder has been, or is being, ill-treated or neglected and not kept under proper control, or is unable to care for himself or herself and is living alone.

Section 136 allows for a Police Officer to intervene if the adult is in a public place appears to be suffering a mental disorder and is in need of care and control.

Section 13 (4): Duty to consider making application for admission. This places a duty on the Social Services Department to direct an approved social worker to consider making an application for admission under the Act, if requested to do so by the nearest relative. This power could be used if the nearest relative of a mentally disordered adult complains of mistreatment by a third party, provided grounds exist under the MHA.

Section 2, 3 and 4: Admission to hospital. These sections give power to an Approved Social Worker based on the recommendation of one or two doctors to authorise the admission to hospital of a mentally disordered adult, if she/he is satisfied the criteria for compulsory admission are met as per the provisions of the MHA.

Section 7: Guardianship. A vulnerable adult can be received into guardianship by the local authority if she/he has a mental illness, severe mental impairment or mental impairment associated with “abnormally aggressive or seriously irresponsible conduct” or a psychopathic disorder, which results in “abnormally aggressive or seriously irresponsible conduct”. The Guardianship must also be “necessary in the interests of the welfare of the adult or for the protection of other persons”. The “welfare of the patient” is interpreted broadly. Guardianship gives the guardian 3 basic powers: –

  • Accommodation: to say where someone is to live;
  • Attendance: to require the adult to attend somewhere for the purpose of medical treatment, occupation, education or housing;
  • Access:  to gain access to the patient at the place where they are living.  There is a necessity to consult the nearest relative when considering guardianship. Consideration to displacing the requested relative should be given if any of the statutory grounds set out in Section 29(3) are met. Legal advice must be sought.

Section 127: Ill-treatment of patients. This section makes it an offence for an officer on the staff or otherwise an employee or a 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 in-patient in that hospital or home;
  • a patient receiving treatment as an out-patient.

Furthermore, under sub-section (2) “It shall be an offence for any individual to ill-treat or wilfully neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”. This sub-section has rarely been used but potentially could include the mistreatment of a mentally disordered adult by any carer-informal or otherwise.

THE RIGHTS OF THE VULNERABLE ADULT

The vulnerable adult who is being abused is very likely to have their own legal remedy and should seek their own legal advice where possible. The worker should support this.

Human Rights Act 1998

All public authorities have to comply with the Act which gives legal force to the rights enshrined in the European Convention of Human Rights. There is a positive duty on local authorities, approved social workers; health authorities, NHS, Primary Care Trusts and the Police to uphold these rights. It is not enough for public authorities not to go against these rights; they also have a positive duty for example, a duty to ensure that someone is not subject to torture or inhuman or degrading treatment. These rights can be limited but the limit on these rights must be proportional.

The main rights that apply include –

  • Article 2 Right to Life
  • Article 3 Prohibition of Torture and Inhuman or Degrading Treatment
  • Article 5 Right to Liberty and Security
  • Article 6 Right to a Fair Trial and Determination of Civil Rights
  • Article 8 Right to Respect for Private and Family Life including home and correspondence
  • Article 9 Freedom of Thought, Conscience and Religion
  • Article 10 Freedom of Expression
  • Article 11 Freedom of Assembly and Association
  • Article 14 Prohibition of Discrimination (this only prevents discrimination in relation to the other rights and applies to grounds such as sex, race, colour, language, etc or other status)
  • First Protocol Article 1 Protection of Property
  • First Protocol Article 2 Right to Education

Disability Discrimination Act 1995

This Act provides positive protection for disabled people from discrimination in relation to services and employment.

DISCLOSURE OF PERSONAL INFORMATION

The Local Authority will hold a lot of personal information about individuals and some of that information will relate to risk posed to vulnerable adults. This may indicate the likely risk of abuse as a result of allegations made. It may include information of a sensitive nature about alleged and actual incidents of abuse. Legal advice should be sought if there is any uncertainty about the sharing of information. Generally, if consent is given by the vulnerable adult there is no difficulty. The challenges arise in situations where seeking consent would put the adult at increased risk of harm or where consent is not given.

Principles in information sharing

  • The Local Authority Social Services Department has the power to disclose to a 3rd party and where appropriate the vulnerable adult information relating to an individual if it genuinely and reasonably believes that it is desirable to protect vulnerable adults.
  • Each case must be decided on its own facts
  • Disclosure without consent should only be made if there is a pressing need and should be the exception not the rule.
  • In deciding whether there is a pressing need, the following factors will be considered –
    • The Local Authority’s own belief about the truth of the allegations will be a factor. The greater the conviction that the allegation is true, the more pressing the need.
    • The level of involvement of the 3rd party to whom the information would be disclosed
    • The degree of risk posed if disclosure is not made – previous history of allegations, level of continuing contact with vulnerable adult, seriousness of alleged abuse.

Crime and Disorder Act 1998 Section 115

This legislation allows for the sharing of information between agencies to prevent a crime being committed. This is relevant to the many abuse situations which constitute a crime.

Data Protection Act 1998

The Data Protection Act sets up suitable safeguards in sharing information and these need to be abided by. E.g. fairly and lawfully processed, not kept longer than necessary, rights of access. However, there are specific conditions in relation to access and sharing of information where there are situations of serious risk of physical harm or to mental health. Information can be disclosed without consent if it is for the protection of the “vital interests of the subject” or prevention or detection of serious crime or for legal purposes. Where information is shared without consent, it is essential for advice to be sought and a careful recording of the reasons for this decision.

Freedom of Information Act 2000

This Act has changed the way public authorities approach openness and manage their records. The Information Commissioner is now responsible for implementation and enforcement of this Act and the Data Protection Act. The Freedom of Information Act only applies to public authorities. The Act establishes the right of any person making a request to a public authority to be informed in writing whether or not the authority holds the information sought and if so to be supplied with the information subject to certain exemptions.

Public Interest Disclosure Act 1999

This is the legal protection for the whistleblower. It sets out a clear and simple framework for raising concerns about malpractice guaranteeing full protection for the worker. The Act enables employees who make a protected disclosure to disclose information, confidential or otherwise, – internally, to prescribed regulators or to a wider audience. A “protected disclosure” is a disclosure of information which, in the reasonable belief of the worker, tends to show one of the following has occurred or is likely to occur –

  • a criminal offence has been committed
  • a person has failed to comply with a legal obligation
  • a miscarriage of justice has occurred
  • health or safety of an individual endangered
  • environment has been damaged
  • Information about any of these has been concealed.
LEGISLATION RELEVANT TO CARERS

Carers Recognition and Services Act 1995

Act places a duty on local authority Social Services Departments to assess, on request, the ability of a carer to provide and continue to provide care and a duty for them to take this into account when deciding which services to provide to the person in need of care.

Carers and Disabled Children Act 2000

This Act gives carers the right to services in their own right.

The Carers (Equal Opportunities) Act 2004

This Act aims to ensure that work, life-long learning and leisure are considered when a carer is assessed. It gives local authorities new powers to enlist the help of housing, health, education and other local authorities in providing support to carers. The Act aims to ensure carers are informed of their rights – with a duty to inform the carer they are entitled to an assessment.

DOMESTIC VIOLENCE LEGISLATION

Family Law Act 1996 Part 4

In domestic violence, there are several relevant parts of criminal law in relation to assaults. Generally the Police will take a proactive approach to domestic violence between partners and will sometimes arrest even where the victim has not decided to press charges. The Family Law Act provides for the making of non-molestation and occupation orders and these can include powers of arrest. These can be obtained against “associated persons” which includes cohabitees, spouses and persons who live together in the same household and relatives. It does not include employees, tenants, lodgers and boarders.

Domestic Violence, Crime and Victims Act 2004

This Act broadens the relationships covered by domestic violence legislation to include same sex and couples who have never lived together. It makes common assault an arrestable offence. There are significant new Police powers including making it an arrestable, criminal offence to breach a non-molestation order. There is stronger legal protection for victims by enabling courts to impose restraining orders when sentencing for any offence or on acquittal for any offence if it is necessary to protect the victim from harassment. The Act creates a new offence of causing or allowing the death of a child or vulnerable adult. This places a new criminal responsibility on members of a household where they know a child or vulnerable adult is at significant risk of serious harm. The Act set up an independent Commissioner for Victims to give them a voice nationally.

OTHER CIVIL REMEDIES

The Law of Tort

This is the civil law which allows one person to sue another complaining about a wrong that the other has committed vis-à-vis the complainant.

  • Trespass to the person (assault and battery) and false imprisonment, i.e.: covering much of the same area as criminal law.
  • Negligence -if a person is owed a duty of care by another, breach of that duty lays that other potentially open to a civil action. A person who takes on board the care of another owes her/him a duty of care. If the carer fails to act as a reasonable carer would have done, she/he has broken that duty of care. If this breach causes the injury of which the person is complaining, the negligence action has been established.

Common Law

Common Law allows for intervention, without consent, to save life or avoid serious physical harm based upon the principle that the action is reasonable and can be professionally justified as immediately necessary for the purpose of saving life or serious physical harm. Conversely, not to act under circumstances of the utmost gravity could be deemed negligent.

In high risk situations where both physical and mental disorders may be present (e.g.: drug overdose, serious injury), if there is doubt concerning which of the two takes precedence, then the Physical Disorder should be given priority. The relevant action would then be a Common Law intervention e.g.: removing the individual to a Casualty Department. When it is physically safe to do so, the adult should then be assessed for treatment/admission under the Mental Health Act 1983 with respect to Sections 135/136.

Declaratory relief is a common law remedy, which can be obtained in high court proceedings in the family division. It is a kind of wardship for adults who are mentally incapable of making or

communicating a decision about specific issues. It results in a declaration that to do x, y or z in respect of an incapacitated person would not be lawful, since it has been found, on the evidence, by the judge, to be in the best interests of the person concerned. It derives from the jurisdiction which the courts have always claimed in respect of medical intervention, when doctors or Trust Hospitals were uncomfortable, as to whether they could properly act or cease to treat someone, whose capacity or condition was such as to make their wishes or confirmed consent unclear.

The Court of Appeal in Re F (2000) removed any doubts as to the use of this jurisdiction by local authorities and emphasised that it may be the duty, and not merely the power, of the local authority, in some cases, to take the step of going to court. When considering whether to apply to the High Court for declaratory relief the following needs to be established:

That it is believed that the adult lacks mental capacity in relation to the particular decision at the particular time. (Wherever possible this should be supported by professional evidence).

The issue is of a “serious justifiable nature” relating to welfare e.g. sterilisation or placement and contact arrangements including supervised contact, where there are strong concerns/evidence of abuse, ill-treatment or neglect and lack of care.

What is in the adult’s ‘best interests’ (as opposed to their carers, relatives etc.) which includes medical, emotional or all other welfare issues. This has to be determined by balancing all relevant factors and obtaining professional evidence e.g. consultant psychiatrist and social worker. (If in doubt the judge will decide).

That determined efforts have been made to agree what is in the best interests by working in partnership with relatives, carers and recording evidence of this on file.

Contract Guidance Notes

Author: John Wilkin/Angela O’Reilly
Date: July 2008
Note: 08-003
Subject: Concerns About Care and Support Providers
(To be read in conjunction with Safeguarding Adults Policy and Guidance)

This CGN replaces Contract Guidance Note 08-001 dated January 2008

1. Introduction and Glossary

1.1 The purpose of this Contract Guidance Note is to set out the procedure to be followed in the event of concerns being raised about a care or support provider, either where an alert has been made through the Devon Safeguarding Adults Multi Agency Alerts Pathway or where the Care Quality Commission (CQC) has informed Devon County Council’s Adult & Community Services Directorate (ACS) or Devon (DPCT) that a service provider has been rated as “poor”.

2. The Multi Agency Strategy Meeting

2.1 When such concerns are raised a Multi Agency Safeguarding Adults Strategy Meeting will be convened, which will be chaired either by the lead agency (ACS, DPCT) or by the Safeguarding Adults team. Each agency will be represented by a manager (the Responsible Manager) who is authorised to make decisions on behalf of their organisation and to instigate any necessary actions arising from the meeting.

2.2 Any response made by the lead agency has to be proportionate to the concerns that are being raised and therefore one of the functions of the Strategy Meeting will be to ensure good liaison and communication between ACS, DPCT, CQC and any other agencies to ensure that all relevant information is efficiently gathered and presented and that any actions agreed are properly understood and co-ordinated.

2.3 In any situation where there are concerns as to the well-being or safety of vulnerable people the primary consideration must always be for the welfare of those people. However, it is also important to ensure that the action taken does  not have the effect of financially damaging a provider in circumstances where further investigation reveals the concerns to have been unwarranted.

2.4 Before the Strategy Meeting the ACS Responsible Manager will:

  • Obtain a list of ACS-funded service users placed with the service provider from the CareFirst system;
  • Inform the Adult & Community Services Procurement and Contracts (P&C) Team that issues of concern have been raised about the service provider. (However, P&C Officers will not routinely attend Strategy Meetings.)

2.5 On receipt of the notification from the Responsible Manager, the P&C Team will inform the Responsible Manager of any relevant hard or soft information that the P&C Team holds regarding the service provider.

2.6 From the evidence presented at the Strategy Meeting it should become apparent whether the issue of concern relates to one incident which has been properly responded to by the service provider (in which case it is unlikely that any further action will need to be taken) or whether there is evidence of more widespread failings in leadership, service delivery or quality within the service (in which case the actions set out in section 3 below should be undertaken).

2.7 An electronic copy of the Minutes will be sent to the P&C Team for filing against the provider concerned.

3. “Whole Provider” Concerns

3.1 Where it is apparent from the Strategy Meeting that there is evidence of failings in leadership, service delivery or quality within the service the following actions may be undertaken:

3.2 The ACS Responsible Manager will provide to the P&C Team a summary of the evidence that supports the concern about the provider. This must be factually accurate and include details of the service users affected, any service provider staff involved, dates, times, and the details and statements of any witnesses. Based on this summary, the P&C Team will determine whether contractual action is warranted (see section 4 below), or will inform the Responsible Manager and the Chair of the Strategy Meeting if it is considered that the evidence is insufficient. The summary of evidence will also be provided to the Chair of the Strategy Meeting, who will inform the service provider that an ongoing Safeguarding Adults investigation is being undertaken and that the P&C Team and CQC have been made aware.

3.3 Based on the summary of evidence, the ACS Responsible Manager and P&C Officer may agree that the P&C Team will circulate by email an instruction, either:

  • That any member of ACS staff considering making a placement with the service provider must contact the Responsible Manager before doing so, in order to ascertain whether the service provider is able to meet the assessed needs of the service user, or
  • That no placements should be made with the service provider.

This email will be sent to ACS Cluster Managers, Practice Managers and the Emergency Duty Team. It may be copied to relevant PCT Managers for information, if appropriate.

Because of the sensitive nature of this issue details of concerns about providers must not be routinely broadcast to all ACS staff.

3.4 Where the nature of the concerns merits it the ACS Responsible Manager will arrange for reviews to be undertaken on any ACS-funded service users already receiving the service from the service provider, including a risk assessment to establish whether the service is able to safely meet their needs. ACS-funded service users and their relatives (or other representatives) should be informed that an investigation is in progress. Legal advice is that they are entitled to know what we know, in general terms, although this should be balanced against the nature of the allegation, the impact releasing any information may have on any CQC or police activity and the response of the service provider – for example, if the service provider has promptly suspended a care worker against whom an allegation has been made it would be disproportionate to inform all service users receiving a service from that service provider, particularly in a domiciliary care service. Where the concern has arisen through the CQC inspection process service users seeking more detailed information about the concerns should be directed to CQC. It is not the role of ACS to inform privately funded service users that an investigation of this nature is taking place – this responsibility rests with CQC.

3.5 As well as determining whether ACS should place new service users with the service provider, the review will determine whether existing service users should continue to receive a service from the service provider concerned (see section 5 below).

4. Breach of Contract

4.1 From the evidence provided following the Strategy Meeting, the relevant P&C Officer will determine whether action is warranted under the Agreement for Provision of the Service (the overarching set of terms and conditions which underpins the placement of service users through Individual Contracts).

4.2 Such action may take the following forms:

Issuing a Default Notice. This is a notice which sets out the nature of the default. It might tell the service provider what they must do to put matters right, and set a timescale for this; or it might require the service provider to provide a written response (usually within 14 days) as to how they are going to put matters right.

Issuing a Persistent Default Notice. This is a notice which is issued when the service provider has failed to put matters right following the issuing of a Default Notice, or if the service provider has committed another default within six months of the first default. The issuing of a Persistent Default Notice gives Devon County Council the right to immediately terminate the Agreement for Provision of the Service. However, the matter might be such that it is considered more appropriate to require the service provider to provide a written response (usually within 14 days) as to how they are going to put matters right.

Issuing a Serious Default Notice. This is a notice which is issued when it is considered that the default materially prejudices the health safety or welfare of a service user(s). The issuing of a Serious Default Notice gives Devon County Council the right to immediately terminate the Agreement for Provision of the Service. However, the matter might be such that it is considered more appropriate to require the service provider to provide a written response (usually within 14 days) as to how they are going to put matters right.

4.3 A copy of the Notice will also be sent to the Responsible Manager and to the Chair of the Strategy Meeting, and they will be informed of the written response of the service provider (where this has been required). Following receipt of the written response from the service provider the Responsible Manager and the P&C Officer may meet with the provider to discuss their response and ensure that it is appropriate and realistic. The outcome of such a meeting will be fed back to the Chair of the Strategy Meeting.

4.4 Responsibility for ensuring that the service provider has put matters right, either as required in the Default Notice or as set out in the service provider’s response, rests with the Responsible Manager.

5. Removing Service Users from the Service

5.1 Decisions about whether service users should remain in a care home where there are serious concerns and/or a Serious Default Notice has been issued or the Agreement terminated will need to be taken between the relevant Cluster Manager (as a minimum), the P&C Team and the service users, bearing in mind the severity of the risks identified.

5.2 Where it is considered that it is not safe for DCC-funded service users to remain in the service, alternative placements will need to be found which meet each service user’s assessed needs as closely as possible.

5.3 In these circumstances the relevant Assistant Director should be informed, and the Press Office should be briefed.

5.4 Whilst there may be financial considerations in the case of block-contracted services the welfare of service users will always take precedence.

6. Concerns re DCC-Placed Service Users in Care Homes Outside Devon

6.1 If information is received from another local authority that a Safeguarding Adults Strategy Meeting is being convened regarding a care home where Devon County Council has placed a service user, the Cluster Manager for the cluster area from which the service user originated should be notified. It is the Cluster Manager’s responsibility to ensure that contact is made with relevant staff in the other local authority and that appropriate actions are undertaken, such as attendance at the Strategy Meeting.

Feedback about the Safeguarding Adults process to all relevant people

This can be an emotional and distressing time for the people concerned. It is essential to keep people informed in a way that is suitable to their role.

The person who alerts one of the agencies to concerns about actual or suspected abuse should have their referral acknowledged, preferably in writing, with a summary of the action likely to be taken.

The vulnerable adult should be central to the whole process and be aware of, and participating in, any action taken or planned.

The informal carer will normally be kept informed of progress but how much and the type of information they get may depend on the wishes of the vulnerable adult and whether or not they are the alleged perpetrator.

The alleged perpetrator will need to be informed of the allegation and how this is done will be guided by the strategy meeting. For example, the Police will want to manage this if there is a criminal investigation. The alleged perpetrator also needs to be informed of the outcome of an investigation and again this should be agreed by the multi agency meeting.

Quality Assurance

How do we know the process has been helpful?

There are a range of methods for looking at the quality of actions taken under the Safeguarding Adults process. Some are happening now; others are in the planning stage.

The referral and monitoring information collected tells us what type of abuse is happening, who it is happening to and where it is happening. It will also tell us what the outcome of a process was.

A file audit will show how well a process was followed and recorded.

Feedback from service users will tell us what the experience was like and how it could be improved.

Involvement of service users, carers and paid staff in the development and review of every aspect of the Safeguarding Adults process will help to make sure it is an experience that makes a positive change to people’s lives.

Learning from Experience

Serious Case Reviews

A serious case review will be held in the event of a death, where abuse is known or suspected, and will be considered where a vulnerable adult has sustained a potentially life threatening injury through abuse or neglect, serious sexual assault, or sustained serious and permanent impairment of health or wellbeing through abuse or neglect.

A serious case review protocol has been produced in order to

  • Learn from past experience
  • Improve future practice by acting on the learning
  • Improve multi agency working
  • Review safeguarding adults procedures

This will normally be initiated by the Safeguarding Adults Coordinator and passed to the Chair of the Safeguarding Adults Committee/Safeguarding Adults Board for a decision. The review will engage all relevant agencies, and will be included in the annual report.

De-brief after a completed Safeguarding Adults process

These can be lengthy and stressful processes and things do not always go according to plan. A de-brief, ideally chaired by someone who was not involved in the process, can be a useful way of unpicking what happened and looking at what might have helped. The aim is to improve inter agency working relationships and to learn from practice.

Any agency can request a de-brief and this would normally be chaired by a member of the Safeguarding Adults team.

Domestic violence homicide reviews

These are due to be implemented as part 9 (3) of the Domestic Violence, Crime and Victims Act 2004 and could involve a vulnerable adult. The Home Office website should be checked for the up to date position www.homeoffice.gov.uk

Devon Adult Protection Committee Serious Case Review Protocol and Guidance

1. Background

The need to develop a serious case review protocol has been identified for some time. The death of a vulnerable adult in December 2004 will be used to pilot this process. It is likely that the protocol will be improved after an evaluation of this process. ‘No Secrets’ does not offer any guidance in this area, but the new consultation document ‘Safeguarding Adults’ (ADSS May 2005) recommends that there is a clear process for commissioning and carrying out of a serious case review by the partnership (Adult Protection Committee).

Several other local authorities have protocols and those from Sheffield and Hull and East Riding have been used for reference.

2. Purpose of a serious case review
  • to learn from past experience
  • to improve future practice by acting on the learning
  • to improve multi agency working
  • to review safeguarding adults procedures

It is not about allocating blame. Any personnel issues which arise as the result of a serious case review will be managed by each agency according to their usual procedures.

3. Criterion for a serious case review

A serious case review should always be undertaken when:

  • a vulnerable adult dies and
  • abuse is known or suspected

It should also be considered where a vulnerable adult has sustained a potentially life threatening injury through

  • abuse or neglect
  • serious sexual assault
  • sustained serious and permanent impairment of health or wellbeing through abuse or neglect

and

  • the case gives rise to concern about the way in which local workers and services work together to safeguard vulnerable adults

N.B. In the case of a death, the APC should keep the coroner informed.

4. Initiating a serious case review
  • a case for review will normally be identified by the Safeguarding Adults Coordinator and passed to the Chair of the Adult Protection Committee for a decision
  • the chair of the APC will then write to the Chief Officers of all the agencies involved, requesting that an agency management review is undertaken.
5. Management review

Each agency will be asked to:

  • prepare a chronology of events
  • produce a report by the time agreed, sent from the agency’s Chief Officer to the Chair of the APC
  • act on any recommendations from the serious case review committee
6. Process

A multi agency serious case review committee will be set up which will:

  • read all agency reports and prepare the final overview report for the APC
  • make recommendations for action

The APC will ensure that all recommendations are actioned and will request updates from agencies.

7. Annual report

All serious case reviews will be included in the annual report along with relevant service improvements

Written for the Devon Adult Protection Committee by Sally Crombie

Safeguarding Adults Coordinator

June 2005

Appendix 1
CHRONOLOGY

It would be helpful if the chronology could be laid out in the following format

SubjectFred BloggsAgencySocial Services
DateTimeContact detailsAgency actions arising
12.10.042.30 p.m.Visit to Fred at home. Found to be wet, depressed.Referral to GP for mental health assessment
20.10. 0410.30 p.m.Took Fred to surgery – well presented and in good spiritsGP prescribed meds for urine infection.
Appendix 2
REPORT

In addition to the chronology, the written report should include the following:

  1. Were the multi agency safeguarding adults procedures followed during the agency’s involvement?
  2. Does the agency review suggest that there is a need for training in safeguarding adults? Or a review of procedures?
  3. What qualifications/experience is held by those at the centre of the case?
  4. Have any practice issues arisen from this case?
  5. What agency recommendations are being made for further action?
  6. Where staff are interviewed, the report should include a profile (Appendix 3)
  7. Signature of the author/s and date

The two documents need to be submitted to the Chair of the Adult Protection Committee by the date set out in the original letter.

Appendix 3
PROFILE OF INTERVIEWEE

Name: Qualifications: Role:

Time in Post:

Employer:

Employer’s address:

Description of role in relation to particular case:

MATTERS TO BE COVERED IN INTERVIEWS
  • Worker’s specific involvement in the case
  • Their knowledge of the multi agency safeguarding adults procedures
  • Their record keeping
  • The supervision they received
  • Training received relevant to the case
  • Looking back, is there anything they would do differently?
  • What lessons, if any, can the individual learn from the case?
  • What, if anything, do they think the agency could improve on?
Appendix 4
Front cover for report

DEVON ADULT PROTECTION COMMITTEE

Serious Case Review

ON:

DATE OF BIRTH:

DATE OF DEATH:

AGENCY:

COMPLETED BY:

Name:
Designation:
Date:

Young People and Transition from Children’s Services

Safeguarding Adults applies to anyone aged 18 years or over.

There may be some exceptions to this but this would need to be negotiated locally.

Where a vulnerable young person is known or suspected to be at risk of abuse, and is receiving services, they should have a transition plan to move from children’s to adult services. In this instance, a Safeguarding Adults process should be initiated as part of that transition.

Teams from any agency that work with children and young people with special needs should receive training and awareness about Safeguarding Adults.

Advocacy

An adult who has been abused, or who is at risk of abuse can consider different types of advocacy.

  1. Formal advocacy – provided by a solicitor, for example
  2. Self advocacy, perhaps with the support of a group of people with similar issues e.g. MIND
  3. A paid advocate from a specialist advocacy organisation e.g. VOCAL
  4. An informal advocate such as a friend or relative
  5. From April 2007 an Independent Mental Capacity Advocate for people who lack capacity when specific decisions need to be made, where no suitable informal advocate is available (see Mental Capacity Act in the legal update)
  6. Advocacy from the person’s key worker e.g. social worker, nurse

It is not always easy to find advocacy for a vulnerable adult and so it is important to consider all aspects of a person’s life to see if there is someone who knows them, who could help in this particular instance. The adult themselves should be in control of who this is, wherever possible.

Work is underway in Devon & Torbay to scope current advocacy provision and look at future commissioning.

Domestic Abuse and Violence

Devon is well served in the area of domestic abuse and violence by the ADVA (Against Domestic Violence ands Abuse) Partnership. Governance for this sits in the Chief Executives Directorate of the County Council, under the umbrella of the Safer Devon Partnership.

It oversees all related activities in the voluntary sector and coordinates the local forums. It has achieved great progress in attracting funding to provide services and training.

ADVA and the Safeguarding Adults Board have been liaising closely for a number of years to recognise the areas of overlap and try to open services and training to those that need it, not determined by how they have been categorised. Success has been limited, with criminal services being most flexible in their approach. MAPPA (Multi Agency Public Protection Arrangements) and MARAC (Multi Agency Risk Assessment Conference) both include vulnerable people where appropriate. However, there is still no service such as a refuge or outreach specifically for older or disabled people in Devon and this is an area which needs to be addressed.

Domestic violence and abuse can begin at any stage in a relationship and is essentially about the abuse of power and control by one person over another within that relationship. This power and control may include physical violence, emotional or psychological abuse, sexual violence and abuse, financial control and social isolation. Anyone can be subjected to domestic violence in a variety of close family or intimate relationships. It cuts across all boundaries of social class, age, race, disability, sexuality and lifestyle.

It must be recognised that some forms of adult abuse fall into what we describe as domestic violence. It may be that a relationship has always experienced some domestic violence, but what has changed is the health or ability of the ‘victim’ meaning they can no longer protect themselves. In other cases the ‘victim’ may be put in the position of caring for the ‘perpetrator’ after a stroke or some illness debilitates them. They may not be able or willing to provide the best care and the partner may be at risk of abuse. The significant difference when intervening on behalf of a vulnerable adult is that they cannot protect themselves because of physical or mental frailty.

They do not lose their right, if they have the capacity to make the decision, to decide for themselves what to do.

In scenarios of domestic abuse and violence for vulnerable adults, as with all other types of abuse, professionals need to take great care when including family members and carers in care plans. The needs and wishes of the vulnerable adult must remain paramount. This becomes more complex where the vulnerable person appears to be under duress from the alleged perpetrator to conform to their wishes and is unable, through fear, to make an independent decision. This is common in all types of abuse.

Domestic Violence and Abuse services should be enlisted where it is felt they can offer an ‘ordinary’ service to empower the victim.

The involvement of Adults who use services in developing and improving safeguarding adults work

A real commitment to begin to involve people in developing and improving safeguarding procedures has been made by the Adult Protection Committee (soon to become the Safeguarding Adults Board) and the Safeguarding Adults Team.

This commitment will be put in to the work programme of both, with timescales for achievements set.

Member of Living Options have been very helpful via a small focus group in contributing to the user perspective of safeguarding issues.

POVA – The Protection of Vulnerable Adults Scheme

in England and Wales for Care Homes and Domiciliary Agencies

The POVA list is a list of people who are banned from working in a care position in a registered care home (whether employed by the home or an agency), or with a domiciliary care agency. It is a criminal offence for someone on the list to apply for this type of work.

Providers cannot employ people either provisionally listed or confirmed on the POVA list.

Since July 26 2004 there has been a statutory duty for providers to refer care workers that fit the criteria, to the Secretary of State for possible inclusion on the list. In some circumstances CQC can make referrals.

The criteria for a care worker to be referred to POVA are where the provider believes the care worker has been guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.

It is essential that reference be made to the full information if such a referral is being made. The application form, practical guide and additional guidance on making referrals can be found on the Department of Health website www.dh.gov.uk

Any instance where a worker is likely to be referred to POVA should have been referred to the local Safeguarding Adults process.

Safeguarding Adults Teams can offer advice and information as can the POVA team based in Darlington. Their contact details are:

Email:
Advice line: 01325 391328

Trading Standards and Vulnerable Persons

WHAT CAN HAPPEN TO VULNERABLE CONSUMERS?

Who is a vulnerable person? They are usually considered to be someone who has a health problem affecting mobility, eyesight, hearing or frailty due to old age and the like. Vulnerable persons can also include those with learning difficulties.

The Trading Standards Service receives many thousands of complaints each year. The consumer is offered civil advice over the telephone. However, when it is evident that the complainant is an elderly person or someone else who may be vulnerable, they are visited by a Fair Trading Officer. This often reassures the elderly person that they are not alone in trying to tackle their problem. Quite often, after discussing the matter, it can become evident that there may be a criminal element to their problem. These persons often give valuable information that can lead to a trader being prosecuted by the Service. Not only have they been “ripped” off, often paying an extortionate amount for goods or a service, but their confidence in human nature has been shattered. They have welcomed a salesman into their home, as they cannot shop like the more able bodied person. They have believed in him/her and they have placed their trust in them. They usually pay “up front”, often in requested cash. They do not query this as their generation was brought up that if you can’t pay, you don’t buy, so they willingly hand over the total amount before they have seen the goods or had the service carried out. They were told it is not right to owe money. High pressure selling techniques are employed, securing the deal regardless of whether the product is suitable for the consumer. The client’s inability to pay is often ignored. Salesmen may doorstep sell or enter the person’s home to such a variety of goods such as: – wheelchairs, vacuum cleaners, fire/burglar alarms, solar heating, electric beds/chairs. Doorstep sellers can also promote utility services such as gas or electricity. The vulnerable person does not like to delay the representative by stopping to read the document and sign the small uncovered portion believing it is merely a request form to obtain more information. It is not until they receive letters welcoming them to a new supplier and another stating the original supplier is sorry to lose their custom, that they realise they have been duped into signing a contract to change suppliers.

When the salesman fails to deliver the goods, supplies a second hand item instead of a new one or supplies faulty goods or a shoddy service, the vulnerable person feels ashamed that they have been conned. The majority do not report the matter and are often afraid even to divulge their dilemma to their immediate family. Quite often, the Trading Standards Service only hears of the problem if the relatives do discover what has happened and they contact us on behalf of their relative.

Under the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) regulations 1987, if a salesman’s visit is unsolicited – i.e. he knocks on the door, phones for an appointment or leaves a flyer at the house, then the consumer must have a written document explaining their cancellation rights and how to exercise them. They should have seven days in which to cancel in writing. If these details are not supplied, the consumer should not lose their cancellation rights.

We work closely with the Police using the Litotes scheme. This comes into place when a complaint is made to either agency, the Police or the Trading Standards Service and they inform each other, often meeting up at the scene of the possible offence. Tarmaccers, roofers and recently, an influx of immigrant builders have caused concern over the years. The

vulnerable person is advised their drive is in need of repair or that they have a cracked slate on the roof etc. Quite often, there is no need for the work. If they are convincing, they will be believed. If there is a gang of heavily built workmen, the vulnerable person could be intimidated and agree to the work. Sometimes the work is still carried out if the consumer declines the trader’s offer. Frequently there is nothing in writing and the vulnerable person is asked to pay a vast amount more than was first mentioned. If they cannot pay (and cash is often preferred) it is not unknown for them to be driven to the bank to withdraw the money.  If they insist on paying by cheque, the trader will often ask the consumer to make the cheque out to cash. They head immediately to the bank and the money is withdrawn. These are usually itinerants and move rapidly to another area, so they cannot be traced. Usually, they do not offer a receipt and frequently when asked for one, get the consumer to write what they are telling them to put down. It may be that they are illiterate or crafty, knowing that if they have not supplied the document it is worthless. White vehicles are used often, some with magnetic name plates that can be changed.  Since we have worked with the Police, the traders tend to move from the area, but the system notifies other Police Forces and Trading Standards authorities, so that a national record is held on computer of the various traders.

Some vulnerable people are housebound or virtually housebound and need stair lifts. It has come to our attention that some stair lift installers/repairers see these persons as an easy market. Often, they are encouraged to purchase a reconditioned or new stair lift, rather than have their existing one repaired. Not only is the person parting with more money than they expected to, but it is not unknown for their existing stair lift to be removed in readiness for the installation of the reconditioned or new stair lift. It is not hard to imagine the difficulty experienced when the disabled person is stranded downstairs and their expected stair lift never materialises. The trader has obtained the money and frequently, cannot be readily traced.

When they actually supply a lift, it is frequently installed badly and seem reluctant to return to resolve the situation. Some stair lifts have been proven to have been installed in a dangerous condition.

Despite, media warnings, the vulnerable person is easy prey to mail shot scams. They think they have won a prize, despite the term ‘award’ being used and there are often terms and conditions included in the text that fully outline how many awards are to be made. These can number thousands and sometimes state the worldwide countries that have been sent such documents in the promotion. Quite often, the details will explain that the promotion is over a very lengthy duration. Despite this, the vulnerable person believes they will be the absolute “winner” and send off the money. Once they are proven to be a responsive customer, they become inundated with such post, sending off more money as they are convinced this time will be their lucky one. The only winner is the person receiving the money.

Clairvoyants send out mail shots, requesting money for personal readings. The vulnerable person can believe that if they do not comply, something terrible will happen to them. Will making companies often target the vulnerable who part with their money and may not receive the legal documents they had expected.

Sometimes there is clear evidence of deception. In such cases it is rather more common for no goods or service to be provided, or if they have been supplied, they are obviously unsatisfactory.

It should be noted that in a few cases there may be indications that there is no case to pursue, since the consumer cannot provide sufficient evidence to prove he/she has been the victim of unfair trading. They may be in their situation simply because they have made an unwise purchase.

HOW CAN SOCIAL SERVICES AND THE TRADING STANDARDS SERVICE HELP EACH OTHER?
  1. Trading Standards have no ability to assess persons and offer them counselling should it be required. However, should we discover such a person through a consumer complaint, we can gain their permission to contact another agency who may be able to offer them assistance. We can then inform the Vulnerable Persons’ Team of DCC Social Services who can assess the situation.
  2. Social Services may become aware through their clients that they are vulnerable to rogue traders. For example, there may be many records of non-supply of stair lifts and with the clients’ permission, the details can be passed to the Trading Standards Service. Social Services could prove to be a very valuable source of information for the Trading Standards Service. They may well report a trader to us of whom we are aware to be trading badly, but we have insufficient cases against him/her to enforce the Enterprise Act to prevent him/her from trading in the future.

Contact numbers for reporting traders who have caused distress to Vulnerable Persons are:-

Jo Willcocks, Fair Trading Officer,                                                                            
Tel: 01392 386703/22

Nick Cotton, Fair Trading Team Leader

Tel: 01392 386703/36
Fax 01392 386715
21 Devon Square, Newton Abbot TQ12 2HR          

Charity Commission regulator of Charities for Children and Vulnerable Adults

The commission regulates charities to ensure that they comply with their legal obligations and deliver effective services for the causes and beneficiaries they serve.

The commission is concerned to ensure that vulnerable groups are looked after by charities in a safe environment. It actively promotes the need for charities working with vulnerable groups to undertake rigorous checks including Criminal Records Bureau checks where appropriate, on prospective trustees, employees and volunteers.

Any concerns should be brought to the attention of:

Jane McDonald
Head of Compliance and Support
Charity Commission Harmsworth House
12 – 15 Bouverie Street
London EC4Y 2371

020 7674 2371

Further information about the Commission can be found on the website www.charitycommission.gov.uk

Rape Crisis

This website aims to provide the basic information that survivors of sexual violence, friends and family need to access the services they need.

General E-mail

Sexual Abuse Line (S.A.L)

PO Box 325
Exeter EX1 1WQ Tel: 0808 800 0188
Tues/Wed/Thurs: 7pm – 10pm

Plymouth Rape Crisis

Provides help through counselling, support or information for individuals or friends and family.
C/o PO Box 227 Plymouth PL4 0YX
Tel: 01752 223584 (Helpline: Mod, Wed, Fri: 7.00pm – 9.30pm)

Respond

Provides a range of services to victims and perpetrators of sexual abuse who have learning disabilities, and training and support to those working with them.
3rd Floor
24-32 Stephenson Way London NW1 2HD
Tel: 020 7383 0700
Tel: 0808 8080700 (Helpline)
Fax: 020 7387 1222
Email:
Website: www.respond.org.uk/

Women’s Aid England

A domestic violence helpline that gives support, help and information over the telephone for the cost of a local call.

PO Box 391
Bristol BS99 7WS Tel: 0117 944 441
Tel: 08457 023 468 (Helpline)
Fax: 0117 924 1703
Email:
Website: www.womensaid.org.uk/

Exeter Women’s Aid

Refuge:
Telephone: 01392 667144
Opening Times: 24hr

Helpline:
Telephone: 0800 328 3070
Opening Times: 24hr

Exeter Outreach:
Telephone: 01392 426483
Opening Times: Mon-Fri 9am-5pm

Mid Devon Outreach:
Telephone: 01392 426521
Opening Times: Mon-Fri 9am-5pm

Safe Project:
Telephone: 01392 667147
Opening Times: Mon-Fri 9am-5pm

East Devon Safe House

Refuge:
Telephone: 01404 44772
Opening Times: Mon-Fri 9am-5pm

North Devon Women’s Aid

Refuge & floating support (for ex-residents only):
Telephone: 01271 321946
Opening Times: Mon-Fri 9am-5.30pm

Outreach and drop-in centre:
Telephone: 01271 370079
Opening Times: Mon-Fri 9.30am-4.30pm

South Devon Women’s Aid

South Devon refuge and advice line:
Telephone: 01803 524594
Opening Times: Mon-Fri 9am-9pm, Sat-Sun 9am-1pm

South Devon refuge and advice line:
Telephone: 01803 524594
Opening Times: Mon-Fri 9am-9pm, Sat-Sun 9am-1pm

South Devon outreach:
Telephone: 01364 643866
Opening Times: Mon-Fri 9am-4pm

Muslim Women’s Helpline

Helpline:
Telephone: 020 8904 8193
Opening Times: Mon-Fri 10am-4pm

Helpline:
Telephone: 020 8908 6715
Opening Times: Mon-Fri 10am-4pm

Victim Support

A national charity for people affected by crime. An independent organisation that offers a free and confidential service, irrespective of whether or not a crime has been reported.
0845 30 30 900
Victim Support Devon
Oak Place Newton Abbot Devon
TQ12 2EX
tel: 0845 676 10 20
fax: 01626 369 033
email:

Action on Elder Abuse

Provides a national information and advice service and guidance for the prevention of, and action on, the abuse of older people.
Astral House
1268 London Road London SW16 4ER
Tel: 020 8765 7000 (Admin)
Tel: 0800 – 808 8141 (Elder Abuse Response Helpline) Mon – Fri: 10am – 4.30pm Fax: 020 8679 4074
Email:
Website: www.elderabuse.org.uk

Ann Craft Trust

Formerly known as The National Association for the Protection from Sexual Abuse of Adults and Children with Learning Disabilities (NAPSAC)

Works with staff in the statutory, independent and voluntary sectors in the interests of people with learning disabilities who may be at risk from abuse.
Centre for Social Work University of Nottingham University Park Nottingham NG7 2RD Tel: 0115 – 951 5400
Email:
Website: www.anncrafttrust.org

Voice UK

Helps anyone with learning disabilities who has experienced abuse or been subject of a crime via support, assistance and information. Available to people with learning disabilities, their families, carers and supporters.
The College Business Centre
Helpline number: 0845 122 8695 (Mon – Fri 10am – 4pm) (also for staff supporting a vulnerable person who has been abused)
Email:
Website: www.voiceuk.org.uk

Public Guardianship Office

0845 330 2900
Email:
Website: www.guardianship.gov.uk/

Alzheimer’s Disease Society

Has expertise in information and education for carers and professionals. Provides help lines and support for carers, quality day and home care and funding for medical and scientific research. Also gives financial help to families in need. Campaigns for improved health and social services and greater public understanding of all aspects of dementia.

Gordon House
10 Greencoat Place London SW1P 1PH
Email
Tel: 020 7306 0606

Tel: 0845 – 300 0336 (Helpline) Mon – Fri: 8.30am – 6.30pm Website: www.alzheimers.org.uk

MIND

A mental health charity. Campaigning, community development, training, publishing and a comprehensive information service.

15 – 19 Broadway London E15 4BQ Tel: 020 8519 2122
Tel: 0845 766 0163 (Information Line)
Fax: 020 8522 1725

Exeter Age Concern

138 Cowick Street Exeter
Devon
Tel: 01392 202092
Fax: 01392 204113
Email:

Age Concern Torbay

Sandwell House 4 Dendy Road
Paignton TQ4 5BD

http://www.ac-communities.org.uk/torbay/

Counsel and Care

Provides and information and advice service for older people (60 and over) living in the UK, their carers, friends, relatives and professionals on a wide range of subjects. Free and confidential.

Twyman House 16 Bonny Street London NW1 9PG
Tel: 0845 300 7585
Fax: 020 7267 6877
Email:
Website: counselandcare.org.uk

Adfam National

A helpline for the families and friends of drug users offering confidential support and information. Also provides training to people and projects wishing to work with families of drug users. Provides direct support to families of drug using prisoners and produce publications.

Waterbridge House 32 -36 Loman Street London SE1 0EH Tel: 020 7928 8898
Fax: 020 7928 8923
Email:
Website: www.adfam.org.uk

Alcohol Concern

Holds information on a wide range of alcohol-related subjects.

First Floor
8 Shelton St
London WC2JH 9JR
Tel: 0297 3954000 (Mon – Fri afternoons only) Tel: 0800 917 8282 (Drinkline)
Website: www.alcoholconcern.org.uk/

DrugScope

Provides information on a wide range of drug related issues.

Waterbridge House 32 -36 Loman Street London SE1 0EE Tel: 020 7928 1211
Fax: 0171 – 7928 1771
Email:
Website: www.drugscope.org.uk

Samaritans

South Devon
21 Warren Road Torquay TQ2 5TQ Tel: 01803 299999
Drop in Callers, normally 9.00am – 10.00pm

Exeter
10 Richmond Road Exeter EX4 4JA Tel: 01392 411711
Drop in Callers, normally 8.30am – 9.30pm
Tel: 08457 90 90 90 (National Helpline – 24 hours) National Email:

National Self-Harm Network

Offers information on local groups. Has a particular interest in improving the rights of those who self harm.

PO Box 7264
Nottingham NG1 6WJ
Email:
Website: www.nshn.co.uk

Headway, National Head Injuries Association

Promotes understanding of all aspects of head injury and provides information, support and services to people with head injury, their families and carers.

4 King Edward Court King Edward Street Nottingham NG1 1EW
Tel: 0115 – 924 0800 (Admin)
Fax: 0115 – 958 4446
Email:
Website: www.headway.org.uk

Family Matters

Supports victims of sexual abuse.

Wrotham Road Gravesend
Kent    DA11 0PA Tel: 01474 536661
Tel: 01474 537392 (Helpline)
Website: www.charitynet.org/~family-matters/
Email:

Safeline

Support for adults abused as children.

King Tom House 39b High Street
Warwick CV34 4AX
Tel: 01926 496911 (Helpline)
Website: www.safelinewarwick.co.uk/
Email:

Survivors (UK)

Support for men who have been sexually abused or raped.

PO Box 2470
London SW9 6WQ
Tel: 020 7357 6677
0845 122 1201(Helpline)
Email:
Website: www.survivorsuk.org.uk/

Intercom Trust

South West support/information and advocacy for lesbian, gay, bisexual and transgender people, including homophobic bullying.

PO Box 285
Exeter EX4 3ZT
Tel: 01392 201015
Tel: 08456 020818
Website: www.intercomtrust.org.uk/

Margaret Jackson Centre

Provides help, information and counselling for women, including abuse and violence, in the South West.

1st Floor
Margaret Jackson House 4 Barnfield Hill
Exeter EX1 1SR
Tel: 01392 256 711
Email:
Website: www.margaretjackson.org.uk

Threshold

A national support line for women who are emotionally distressed/have mental health problems.

St Georges Place Brighton BN1 4GB
Tel: 0808 808 6000
Email:
Website: www.thresholdwomen.org.uk/

Bristol Crisis Centre for Women

A national helpline for women in emotional distress.
PO Box 654
Bristol BS99 1XH
Tel: 0117 925 1119 (Fri/Sat 9pm – 12.30am, Sun 6pm – 9pm)
Email:
Website: www.thresholdwomen.org.uk/

References

No Secrets: guidance on developing and implementing multi agency policies and procedures to protect vulnerable adults from abuse

Department of Health          March 2000

Safeguarding Adults: a national framework of standards for good practice and outcomes in adult protection work

ADSS (Association of Directors of Social Care) October 2005

“Towards Better Interviewing. NAPSAC, Department of Learning Disabilities” – Brown, H. et al (1996) University Hospital, and Queens Medical Centre: Nottingham.

“Policy and Procedures for Health Care Workers dealing with Allegations of Abuse” (1996) – Learning Disabled Services Manchester.

“Interviewing People with Mental Health Problems” – Merseyside Jewish Welfare Council.

“Person Centred Communication Skills in Working with People with Dementia” – Sheard, D.

“Elder Abuse Work, Best Practice in Britain and Canada” (1999) – Pritchard, J. ed, Jessica Kingsley Publishers Ltd: London 7.

“No Secrets: Guidance on Developing Multi-agency Policies and Procedures to Protect Vulnerable Adults from Abuse” – (March 2000) Department of Health.

“A Multi-Agency Code of Practice for the Protection of Vulnerable Adults

from Abuse” (Appendix I – Section 10) – Devon Social Services; Torbay Social and Housing Services; South West Devon Health Authority; Plymouth Social and Housing Services; North and East Devon Health Authority.

“Mental Incapacity” – Law Commission (LAW COM 231) (1995) HMSO.

“AIMS for Adult Protection The Investigators Guide” – Skinner, B. et al (1998, Brighton), Pavilion Publishing.

“Who Decides?” – The Lord Chancellor’s Department, (1997) The Stationery Office, London.

“Assessing Mental Capacity – A Guide for Doctors and Lawyers” – BMA/Law Society (1995).

Mental Capacity Act 2005

“Good Practice” Story 1 & 2 – Safeguarding Adults pages 41 & 42

Mandelstam, M., 1998, page 163

DCA website for updates on the Mental Capacity Act and IMCA provision www.dca.gov.uk