A smiling carer chats with an elderly lady

The Care Act 2014: the adult safeguarding system is about to change

The Care Act 2014 comes into force tomorrow. Over the next few weeks we will be posting some of our thoughts about the provisions of the Act and our experience of working with people who will benefit from the legislation, particularly in respect of safeguarding vulnerable adults.

First, we consider what was wrong with the current system and how the Care Act 2014 (the Care Act) will change things.

One of the main issues with the current system is that it is guidance only and difficult to ensure that an authority does what you think it should. Furthermore, that guidance, ‘No Secrets’, was published in 2000 and has not particularly caught up with the way the Adult Social Care system has evolved over the past 15 years. Currently, each Authority is able to make it’s own policy in respect of safeguarding, and most authorities now have comprehensive policies which ensure that agencies such as health, social, police and education (if appropriate) all work together in a particular geographical area.

Although the current system creates responsibility for the provision of services, it can be very complicated and focuses on the people and organisations who provide the services, rather than the individual who needs to receive the care. The vulnerable adult, whether or not they have capacity to make decisions about any alleged abuse, may be excluded without good reason from the process that will make safeguarding decisions about them. An individual’s capacity to make decisions about the abuse is too often not considered and if they do have capacity to make decisions to consent to the abuse and/or put up with it this is rarely considered as an important factor in the process.

Under the Care Act, there is first and foremost a principle of ‘well-being’ of the individual and the focus is changed so that the person is always at the centre of the decision making process. Local authorities now have a duty to meet the specific needs of the individual, rather than just providing services.

The Care Act brings safeguarding into a statutory framework and away from guidance and policy, but importantly, the new system is predicated on the individual with needs requiring care or support. It doesn’t matter if they are ‘eligible’ needs, ie they can be low or moderate needs as well as Substantial or Critical, which will result in service provision to meet those needs. This doesn’t really change much from the current system, as any alert would be considered – but only those with eligible needs, or those who lacked capacity would benefit from action that the Local Authorities could take on their behalf.

I cannot see how this will be that different with the Care Act, because the Act still permits Local Authorities to meet assessed and eligible needs; and the guidance is that those are needs which are substantial, or critical.

What might make some difference is the action that the newly constructed Safeguarding Adults Boards (SAB) can take when faced with a situation that requires review and these may assist in driving forward standards and the quality of working together to safeguard adults. However, other than this, the Act is pretty silent on safeguarding. It hasn’t created new powers but the Act itself (being clearer and more person centred) might assist professionals to use the legal framework available to protect people from harm, and empower those who need it.

For example, individuals who might not understand, or be able to weigh up, retain or communicate any decision relating to care planning, now effectively have a statutory right to have access to an advocate to support them through the process. There is already a statutory right to an Independent Mental Capacity Advocate in safeguarding cases where the person lacks capacity, but this doesn’t help those who are said to have family members who can adequately speak for them; or for those who don’t lack capacity, but still struggle to engage with or understand the process.

For me, this is likely to be one of the key changes that the Care Act will bring about that might actually support the individual at the heart of it all more effectively than any legal measure that could be put in place.

For more information please contact Jess Flanagan or a member of our Court of Protection team.