Report 41: Prevention in adult safeguarding

Regulation and legislation

'The report on the consultation on No secrets found widespread support for the introduction of new safeguarding legislation.'(2)

Introduction

Regulation and legislation both can play a role in the prevention of abuse. There has been increasing support in recent years for the introduction of new legislation to strengthen adult safeguarding frameworks at a local level.

• Regulation and inspectionOpen

  A number of papers and policy guidelines argue that regulation and inspection are important mechanisms for the prevention of abuse; see for example Kalaga and Kingston (7). CSCI stated that regulators have a key role to play in safeguarding – they can raise concerns about abusive practice and identify gaps in how standards are applied or interpreted, particularly in relation to workforce training, qualifications and skills and the effect of standards on safeguarding practice.(3) Kalaga and Kingston also point to the role of the 'safeguarding agencies' as a source of support and protection for adult at risk in relation to any type of abuse – they have a role in complementing the legislation.(7)

  There is some evidence for the validity of the inspection process in this respect documented in CSCI.(3) Their study found that there was a correlation between the quality rating of a residential service and the safeguarding alerts associated with it, as well as with other indicators of good practice in abuse prevention.

  However, CSCI also stated that the role of regulators at a local level has been inconsistent due to a 'lack of clarity about responsibilities'.(3) In Safeguarding adults, CSCI described finding some confusion about their role in relation to safeguarding, and reported taking a number of actions, including developing a joint protocol with the Association of Directors of Adult Social Services (ADASS) and Association of Chief Police Officers (ACPO) to ensure that their working practices support effective safeguarding and contribute to a reduced risk of abuse for people who use services.(3, 36)

  Many people who use services may place less confidence in the role of regulation and inspection processes, particularly where inspection visits are few and far between and announced in advance, as it is more than possible for service managers and staff to put on a good front when it is needed. This issue was raised by the SCIE Adult Safeguarding Service User Advisory Group.

• LegislationOpen

  Kalaga and Kingston propose that legislation can be implemented as a source of support and protection for adult at risk. They suggest that this primary legislation can be applied to all types of abuse since abuse in itself can be seen to infringe the basic human rights of an individual:

  • The Human Rights Act 1998 clarifies the rights and freedoms of individuals.
  • The Disability Discrimination Act 1995 provides primary legislation concerning the rights of individuals with disabilities. From 1 October 2010, the Equality Act replaced most of the Disability Discrimination Act (DDA). However, the Disability Equality Duty in the DDA continues to apply.
  • The Equality Act 2010 aims to protect disabled people and prevent disability discrimination. It provides legal rights for disabled people in the areas of: employment, education, access to goods, services and facilities including larger private clubs and land based transport services, buying and renting land or property, functions of public bodies, for example the issuing of licences. The Equality Act also provides rights for people not to be directly discriminated against or harassed because they have an association with a disabled person. This can apply to a carer or parent of a disabled person. In addition, people must not be directly discriminated against or harassed because they are wrongly perceived to be disabled.(7)

  In addition, the Crime and Disorder Act 1998 acts as a primary support and protection in relation to most forms of abuse and is the basis for the formation of community safety partnerships between the police and local authorities in the UK.

  Legislation covering hate crime is also relevant here. A hate crime is defined as any criminal offence that is motivated by the perpetrator's hostility, prejudice or hatred based on the victim's perceived race, religion or belief, sexual orientation, transgender or disability. Domestic violence used to be included under hate crime but is now covered under the Violence against Women (VAW) strategy.(50)

  The Crime and Disorder Act 1998 makes hateful behaviour towards a victim based on the victim's membership (or presumed membership) of a racial group or a religious group an 'aggravation' in sentencing for specific crimes.

  The Criminal Justice Act 2003 places a general duty on courts to treat more seriously any offence that can be shown to be racially or religiously aggravated or motivated. It also places a duty on courts to increase the sentence for any offence aggravated by the demonstration or motivation of hostility based on the victim's disability (or presumed disability) or sexual orientation (or presumed sexual orientation). In 2008 the Criminal Justice and Immigration Act 2008 amended the Public Order Act 1986 to include incitement to hatred on the grounds of sexual orientation.

  The Mental Capacity Act 2005 introduced new provisions that enhanced adult safeguarding in respect of people lacking capacity. Manthorpe et al interviewed 15 adult safeguarding co-ordinators in London about the operation of the Act. They suggested that the Act gave new impetus to adult safeguarding as a result of its provisions for specific offences, and the clarity it provides over decision making and consent to investigations. Their findings also point to the potential of the Act to assist with prevention of abuse and neglect, through enabling people to make decisions about the future and exercise some choice and control. They argue that, in relation to adult safeguarding, the Act introduces four key elements:

  • new offences of wilful neglect and mistreatment of people lacking decision-making capacity
  • powers to make decisions in the best interests of people who lack capacity
  • duties of proxy decision makers and professionals to abide by the code of practice and to act in a person's best interests
  • the leaving of specific decisions and capacity assessments to the person or professional concerned.(51)

• The case for new legislationOpen

  In their study of 26 Adult Protection Committees, Reid et al found support for new legislation 'to ensure that attention is given to adult protection at organisational level'. Their respondents called for a statutory duty to be placed on agencies to cooperate and to secure the funding of adult protection systems.(52)

  The report on the consultation on No secrets found widespread support for the introduction of new safeguarding legislation for the following reasons:

  • Safeguarding adults should mirror child protection.*
  • Legislation would make safeguarding a priority.
  • Scotland had the new Adult Support and Protection Act 2007 that made adult protection a statutory responsibility.
  • The government's choice agenda needed to be balanced with a safeguarding agenda.

  Support for new legislation was not universal however, with some people suggesting (among other things) that the most effective approach to safeguarding is to ensure that it becomes part of mainstream activity and part of the choice agenda.(2)

  The Law Commission, in their consultation on adult social care, found significant support for the proposal that local authorities be placed under a duty to make enquiries where there is reasonable cause to suspect that the person appears to be an adult at risk. They further found in favour of placing a duty on local authorities to establish adult safeguarding boards, on the basis that it 'would strengthen current arrangements and would standardise areas such as the functions and membership of the boards' and that there should be an enhanced duty to cooperate.(12)

  *Note: In relation to the concept of adult safeguarding mirroring the arrangements for child protection, the same report highlighted marked differences between safeguarding adults and child protection, which rather discount the potential for mirroring.(2) For example, the two involve a different contextual vision, policy direction, different legislation, mainstream services and the role of rights and responsibilities of parents in respect of children. Key to the different platform is the presumption of capacity in adults and incapacity in children.