Key legislation - Legislation protecting vulnerable people from abuse
The Care Act 2014
The Care Act 2014 places a general duty on local authorities to promote the wellbeing of individuals when carrying out care and support functions. The definition of wellbeing includes:
- personal dignity including treating individuals with respect
- physical and mental health and emotional well being
- protection from abuse and neglect
- control by the individual over day-to-day life
- participation in work, education, training or recreation
- social and economic well-being
- domestic, family and personal relationships
- suitability of living accommodation
- the individual’s contribution to society
(Department of Health, 2014)
Sexual Offences Act 2003
In the past there have been difficulties in bringing prosecutions against individuals who committed sexual offences against people with mental disorders. The Sexual Offences Act (SOA) 2003 modernised the law by prohibiting any sexual activity between a care worker and a person with a mental disorder while the relationship of care continues. A 'relationship of care' exists where one person has a mental disorder and another person provides care. It applies to people working both on a paid and an unpaid basis and includes doctors, nurses, care workers in homes, workers providing services in clinics or hospitals and volunteers. The offences in the Act relating to care workers apply whether or not the victim appears to consent, and whether or not they have the legal capacity to consent.
This does not prevent care workers from providing intimate personal care so long as the behaviour is not intended to be sexual. The Act is not intended to interfere with the right of people with a mental disorder who have the capacity to consent to engage in sexual activity with anyone who is not in a caring relationship with them.
The SOA also attempts to make the prosecution of rape easier by clarifying the meaning of consent. Section 74 of the Act provides that someone consents to a sexual act if, and only if, he or she agrees by choice and has the freedom and capacity to make that choice.
Safeguarding Vulnerable Groups Act 2006 and the Protection of Freedoms Bill
This Safeguarding Vulnerable Groups Act (SVGA) 2006 was passed to help avoid harm, or risk of harm, by preventing people who are deemed unsuitable to work with children and vulnerable adults from gaining access to them through their work. The Independent Safeguarding Authority was established as a result of this Act. On 1 December 2012 the Criminal Records Bureau and Independent Safeguarding Authority merged to become the Disclosure and Barring Service (DBS). Organisations with responsibility for providing services or personnel to vulnerable groups have a legal obligation to refer relevant information to the service.
The Protection of Freedoms Bill (Chapter 1 of Part 5) amends the SGVA 2006, retaining the national barring function whilst abolishing registration and monitoring requirements. For further information see the Protection of Freedoms Bill Home Office Fact Sheet.
Ill treatment or wilful neglect
It is an offence under section 127 of the MHA1983 for staff employed in hospitals or mental nursing homes to ill treat or wilfully neglect a person with a mental disorder. The MCA 2005 (s44) extends this, creating two new criminal offences of ill treatment or wilful neglect of a person who lacks capacity to make relevant decisions. This applies to all people who lack mental capacity in whatever setting, thus offering protection to people with learning disabilities, brain injury or dementia. The offences may apply to all people, paid or unpaid, who care for a person who may lack capacity and those with deputyship, LPA or EPA. The maximum sentence for such offences is now five years.
Ill treatment and wilful neglect are different. Ill treatment must be deliberate, is an offence irrespective of whether it causes harm, and involves an appreciation by the perpetrator that they were inexcusably ill ttreating the person or being reckless (Mandelstam 2009). Ill treatment includes acts such as hitting, administering sedatives to keep people quiet, pulling hair, rough treatment, verbal abuse or humiliation (Mandelstam 2012).
Wilful neglect is a failure to act rather than a deliberate act to commit harm. Examples of wilful neglect could include not administering the correct medication, failing to take someone to hospital when they have fallen and hurt themselves, not providing adequate pressure sore care or leaving someone locked and unattended in a vehicle (Mandelstam 2012). Managers with responsibility for ensuring good care can be held accountable but currently there is no offence of corporate neglect. On 10 December 2012, Care Minister, Norman Lamb announced that the government intends to address this, saying: ‘we will examine how corporate bodies and their boards of directors can be held to account under law for the provision of poor care and for any harm experienced by people using their services’ (Hansard 2012).
Public Interest Disclosure Act 1998
An important part of promoting dignity is ensuring a working environment that encourages people to challenge practices in their own workplace. The law offers some protection from victimisation to people who blow the whistle under the Public Interest Disclosure Act (PIDA) 1998. The parameters of ‘protected disclosure’ are set out in the Employment Rights Act (ERA) 1996. The person making the disclosure should not commit an offence in doing so (e.g. breach the Official Secrets Act 1989) and must reasonably believe one or more of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of any individual has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (ERA1996).
- Dignity in care guide: Section on whistleblowing.
- Public Concern at Work (PCaW) - an independent charity that offers support to whistleblowers.
- Health & Safety Executive's Whistleblowing website.