Safeguarding Older and Vulnerable Clients
Safeguarding is undertaken to protect a vulnerable person who is or is at risk of suffering harm. Defining what constitutes as vulnerable can be difficult as it’s the circumstances, not the person that deems them as vulnerable. Very often vulnerable or abused people have more than one risk factor.
For safeguarding to happen, you must be able to recognise abuse and neglect. It’s important to recognise that it can take place in any setting, be perpetrated by any person or organisation, and isn’t limited to positive acts, it can be a failure to act.
Being able to identify the type of abuse taking place is also vital in helping people understand what is happening to them and taking the necessary steps to prevent it from happening. However, it is paramount the victim can identify that they are being abused before anything else takes place.
For those who lack the mental capacity to recognise abuse, others should take steps to protect them. This could for example involve skills training so they are better able to prevent harm from happening, or it may be that a public body needs to become involved in the situation. Abuse comes in many different forms, including physical, psychological, emotional, sexual, financial, and stranger abuse.
Amongst the list is neglect, acts of omission or self-neglect. This can be caused by things such as dementia, physical illness, or a traumatic life change. The knock-on effect of self-neglect includes an unwillingness or inability to manage personal affairs as well as threatening personal health and safety. As a result, people become unable to take steps to stop harming themselves or seeking the help they need
The state must pay due regard to Article 8 of the European Court of Human Rights before they can get involved with anybody’s private life. This means public bodies cannot interfere when it comes to safeguarding unless it’s justified and proportionate.
All the policies have common principles:
• Empowerment, ensuring people are in control of their own decisions
• Prevention, preventing abuse from happening
• Proportionately, what steps can be taken
• Protection, support for the person
• Partnership, working collaboratively with the NHS, local authority etc.
• Accountability, and transparency when public bodies are taking safeguarding steps
The common aims are to stop abuse from occurring, prevent future abuse and raise public awareness so people can identify abuse.
Local authorities have important safeguarding duties. They must carry out the necessary enquires to determine if action is taken to safeguard adults at risk as well as assess the need for care and support of the adult regardless of vulnerability.
Furthermore, local authorities work with safeguarding partners, carry out reviews, appoint an independent advocate along with taking steps to avoid unlawful deprivation of liberty. They also have duties under the Public Health Act 1984, this could include deep cleaning and disinfecting premises to prevent infectious diseases.
The police act in response to abuse and have the power to charge perpetrators with a wide range of offences. They also work with safeguarding partners to put in place local safeguarding strategies.
Department of Work & Pensions
DWP investigate abuse of a claimant's benefits through the DWP Fraud Investigation Unit. They can take legal action against perpetrators and work with other safeguarding organisations.
Care Quality Commission
The CQC regulate health and social care in England. They must protect service users from abuse and improper treatment. It’s also possible for the CQC to intervene and close down service providers as well, but solicitors have a duty to report problems with regulated providers to the Care Quality Commission if they spot them.
Office of Public Guardian
The OPG supervision and investigation team are responsible to hear, consider and respond to concerns raised about the registered powers of attorneys and deputies. Depending on the outcome of that investigation, they will consider if a court application is appropriate. That may see an attorney or deputy removed or told to apply to the Court of Protection (COP) to take steps to rectify wrongdoings or they refer the client to another body. The OPG operate a 'no wrong door’ policy, which means they will try and refer people to the right body.
Court of Protection
With the ability to make declarations of capacity, order the production of documents/reports, remove attorneys and deputies as well as appoint deputies, the court can also authorise legal proceedings in the name of the person who has an attorney/deputy.
Mental Capacity Act
Section 44 of the Mental Capacity Act is important when acting as an attorney or deputy or advising attorneys or deputies. This is because under section 44, the ability for prosecution arises when someone is suffering from ill treatment or wilful neglect, and another person either has care of that person due to lack of capacity (or belief of lack of capacity) or is an attorney or deputy.
Under the Mental Health Act, there are circumstances where local authorities can enter and inspect premises, but they cannot force entry unless they’ve applied to a magistrate’s court. They can also apply to the COP for appropriate orders or apply to the High Court for it to exercise its inherent jurisdiction.
Inherent jurisdiction applies to vulnerable people whether or not they are incapacitated by a mental disorder or mental illness or is reasonably believed to be either:
(i) under constraint; or
(ii) subject to coercion or undue influence; or
(iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent
Duty of confidentiality
This is where the affairs of current or former clients are kept confidential unless disclosure is required, or a client has given their consent. With a duty to act in the best interests of clients, the Solicitors Regulation Authority’s code says clients’ attributes needs, and circumstances must be taken into account.
The Data Protection Act of 2019 and GDPR do not prevent disclosure to safeguard a person from harm as it is an exceptional circumstance. Information can be disclosed to prevent a crime from being committed. If a client lacks the capacity to disclose, you may have to disclose confidential information if you believe they are at risk of harm, which will depend on the likelihood of harm happening and the seriousness of that harm. In all cases, disclosure should be limited to what is necessary for action to be taken by a safeguarding body.