Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Safeguarding

.
Briefing by Luke Clements ~ updated August 2017.  This section needs to be expanded considerably. For corrections or suggested additions please contact anjames57@gmail.com
.
NOTE:
The Welsh Government has indicated that it proposes to publish updated Guidance on ‘handling individual cases to protect children and adults at risk’ – as a result of its consultation exercise concerning revisions to volumes 5 and 6 of the Working Together to Safeguard People statutory guidance – for details click here.
.

.

Part 7 of the 2014 Act deals with ‘safeguarding’ both for adults and children – although safeguarding obligations are a theme that runs through the entire Act: ‘protection from abuse and neglect’ is defined as a key ingredient of ‘well-being’ (section 2); services are to be developed to prevent people from suffering abuse or neglect (section 15(2)); abuse or neglect can trigger ‘eligibility’ (section 32); and support services can be provided when deemed necessary to protect people from abuse or neglect (section 35(3) and section 37(3)).

The safeguarding duty applies to people ‘at risk’. For an adult this is someone experiencing (or is at risk of) abuse or neglect, and has needs for care and support and as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it (section 126(1)). A child is at risk if experiencing (or is at risk of) abuse, neglect or other kinds of harm, and has needs for care and support (whether or not the authority is meeting any of those needs) (section 130(4)).

Section 197 defines abuse as physical, sexual, psychological, emotional or financial[1] and which may occur in any setting. Neglect is defined as a failure to meet a person’s basic physical, emotional, social or psychological needs, which is likely to result in an impairment of the person’s well-being.

As noted above, people who are considered to be at risk of abuse or neglect are legally eligible for care and support – even if their needs (in terms of achieving specified outcomes) are otherwise insufficient for the purposes of the ‘eligibility criteria’.

The Act creates a National Independent Safeguarding Board (section 132) and provides (in regulations) for local Safeguarding Boards for adults and for children, whose objectives are essentially to ‘protect and to prevent’. In large measure the Act puts on a statutory footing much of the pre-2015 safeguarding guidance (ie ‘In Safe Hands’[2]) – including the imposition of a duty on public bodies to report abuse of adults (s128) and children (s130) and to make enquiries where there is reasonable cause to suspect that a person is at risk.[3] The power to protect property of people being accommodated by a local authority or LHB has also been retained (section 58).

In statutory terms, the most significant new provision concerns ‘adult protection and support orders’ (section 127). This provides for an ‘authorised officer’ of a local authority to obtain an order from the magistrates court that entitles them to speak in private with a person suspected of being at risk in order to ascertain whether she / he is making decisions freely and whether he / she is at risk. The Adult Protection and Support Orders (Authorised Officer) (Wales) Regulations 2015 reg 3 requires that a local authority only authorise a person to apply for an adult protection and support order ‘who has relevant experience, has completed appropriate training and is an officer of the authorising authority’ – but if this is not practicable it can authorise any officer of the authority.

Statutory Guidance in relation to Part 7 of the Act has been issued as four separate ‘Working Together to Safeguard People’ volumes:

1 – Introduction and Overview
2 – Child Practice Reviews
3 – Adult Practice Reviews
4 – Adult Protection and Support Orders

 

These volumes (and templates that can be used to support child and adult practice reviews) these can be download from the Social Care Wales Hub.

Only time will tell whether these measures will be effective.   The Act has taken a middle way – between the English Act, which provides no new safeguarding powers, and the Scottish Act[4] which contains (in addition to a power of entry) a power of removal. There is a fear that the Welsh option may be the worst of both worlds – since it provides no power to do anything if the person is found to be ‘at risk’ and it repealed the power of removal under National Assistance Act 1948.[5] This fear may prove to be ill-founded since the police have extensive powers in such cases.[6] The problem of course is that ‘law and order’ is not a devolution issue and so the extent to which the regulations and Code can dictate the safeguarding role to be fulfilled by the police is limited.

For an excellent criticial analysis of the Act’s Safeguarding provisions see John Williams, ‘Adult safeguarding in Wales: one step in the right direction’ in the Journal of Adult Protection, Vol. 19 Issue: 4, pp.175-186.

 

 
 
[1] Section 197 defines financial abuse as including (a) having money or other property stolen; (b) being defrauded;(c) being put under pressure in relation to money or other property; (d) having money or other property misused.
[2] National Assembly for Wales (2000) In Safe Hands.
[3] Section 126(2) for adults and section 130(3) for children.
[4] Adult Support and Protection (Scotland) Act 2007, ss 7, 8, 11 & 14.
[5] Section 47 – repealed by section 129 of the 2014 Act.
[6] The English Government when arguing that a power of entry was not necessary, cited existing police powers under the Police and Criminal Evidence Act 1984section 17(1)(e) ‘to enter premises for the purposes of “saving life or limb or preventing serious damage to property’ as well as powers under the Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 the Mental Capacity Act 2005 and the High Court’s Inherent jurisdiction – see comments of the Minister of State, Department of Health (Norman Lamb) House of Commons Public Bill Committee 21st January 2014 (morning) at 270-271.