A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The new Care Bill for England is currently going through the House of Lords. It is a broad ranging piece of legislation, which reforms a number of important areas of health administration and individual care law. The central purpose of the Bill is to promote individual well-being.
The Care Bill
The Care Bill contains some very important provisions by way of developments in the law and practice concerning the safeguarding of vulnerable adults in England. These will affect everyone providing professional and voluntary adult care services. The provisions of the Bill are also just the start of a process which will see changes in local authority practice and the issuing of new guidance and codes of practice by central and local government.
It has been recognised for some time that the law and practice concerning the safeguarding of vulnerable adults has become complex and confused. The Law Commission has been promoting the changes set out in the Care Bill in an attempt to address these problems. Care industry leaders and advisers have been taking part in the consultation process and are currently involved in lobbying about the exact terms of the draft Bill.
Safeguarding is the term that is used to describe the protection of adults and children from abuse and neglect. It is an important shared priority of many public services including the NHS and police, and a key responsibility of local authority social services.
Adults in vulnerable circumstances are at risk and need to be protected. They may be at risk of abuse or neglect due to the actions (or lack of action) of another person. In these cases it is critical that services work together to identify people at risk, and put in place interventions to help prevent abuse and neglect. The Department of Health has issued a number of useful factsheets on the Bill which help to explain these matters in detail.
The nature of abuse is considered in the current government guidance “No Secrets”, which was published in 2000. Abuse is a violation of an individual’s human rights and it may consist of a single act or repeated acts. It may be physical, financial, verbal or psychological or an act of neglect or omission to act. Some types of abuse are a criminal offence and will be pursued by the police. Where there is personal dependency on others there is always the possibility of abuse or neglect unless adequate safeguards are put in place.
Enquiries by Local Authorities
Local authorities will have a new legal duty to make enquiries when they have a reasonable cause to suspect that an adult in their area has a need of care and support, is at risk of abuse and neglect and is unable to protect him or herself. The local authority must make whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in that adult’s case.
The Care Bill confirms for the first time in law that “abuse” includes financial abuse. That includes having money or property stolen; being defrauded; being put under pressure in relation to money or other property, and having money or other property misused.
Safeguarding Adult Boards
When the Care Act comes into force each local authority must establish a Safeguarding Adults Board (an “SAB”) in its area. The objective of all SABs is to help and protect adults at risk. They have been given very broad ranging powers to help them to achieve their objective. SABs will replace the existing local authority adult protection committees, although it is expected that they will continue with the same work, but in a revised and more structured way. Until each SAB has been established and issued their own local policy it is too early to say exactly how they will operate.
SABs will be chaired by an experienced chair and include representatives from the local authority, the police and local clinical commissioning groups. The Secretary of State for Health will be able to make further regulations about additional members. SABs will develop their own local procedures, but they will be subject to special guidance issued to them by the Secretary of State. SABs will need to publish annual public reports on their achievements and findings.
Safeguarding Adult Reviews
A local authority SAB must carry out formal case reviews if an adult at risk in their area dies in circumstances where abuse or neglect are known or suspected. It must also carry out a review if it suspects that a living adult has experienced serious abuse or neglect. Any review must identify the lessons to be learnt from that adult’s case, and apply those lessons to future cases.
SABs will be given very wide powers under the Care Act to request any person to supply information to it about any case. In particular it will be able to use these powers to request care homes and homecare providers to submit detailed reports and produce care records and other relevant documents to it as part of an on-going abuse or neglect enquiry.
Safeguarding in Four Countries
Care and safeguarding law and practice is beginning to diverge across the United Kingdom. It is an area of law which is subject to devolution to our four governments. Scotland is already ahead of the other countries having passed the Adult Support and Protection (Scotland) Act in 2007.
While England is considering the Care Bill, the Welsh Assembly is scrutinising the Social Services and Well-Being (Wales) Bill. At the same time the Department of Health, Social Services and Public Safety in Northern Ireland is actively developing its policy in relation to safeguarding vulnerable adults, although it has not yet brought forward draft legislation.
As the four devolved regimes progress, it will be very instructive to examine the results produced by their differences in practice. For instance in Wales there is to be a new power for the magistrates’ courts to issue an “adult protection and support order”, which would give authorised offices the power to enter private premises to investigate whether anyone is an adult at risk. Currently there is no similar power in the English Care Bill.
After the Care Act comes into force the Law Commission has advised that the government will introduce new guidance on adult safeguarding in England. This will replace the existing “No Secrets” guidance, which is considered to be out of date. In the future the law on safeguarding vulnerable adults should be clearer but the duties placed on care providers will become increasingly onerous.
For more information
Please contact John Turner, Lead Regulatory Senior Associate on firstname.lastname@example.org.
For the Department of Health factsheets on the Care Bill, please click here. The legal helpline operated by Anthony Collins Solicitors LLP for UKHCA members gives advice on safeguarding and related employment issues: call 020 8661 8188 (Option 4) for referral.
This article first appeared in Homecarer - September 2013.
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