In our previous posts about the Care Act 2014, we have discussed different categories of abuse. Here we look at the steps that can be taken if there is any suspicion that abuse is taking place.
A situation might begin as a family argument, but if there is concern that any care being provided for an elderly person is not sufficient to safely meet their needs, or where there is evidence of physical or emotional abuse or neglect, then the Local Authority with Safeguarding responsibility should be asked to investigate, or at least look at the situation to ascertain whether they should be investigating further.
The procedure followed is slightly different in each locality, but most Local Authorities have a dedicated web page to publish their policy and set out the steps it will take if it receives a Safeguarding alert. These alerts can come from anywhere and the person raising the alert can, if he or she wishes, remain anonymous. A referral from a member of the public will usually go through to a dedicated team which will call a meeting to discuss the seriousness of the alert, and the steps it plans on taking to alleviate the risk of harm to the person who is said to have been abused, or neglected. This has not changed with the implementation of the Care Act 2014.
An issue that I don’t think will be addressed with the changes is that when an individual has capacity to make decisions about their circumstances, and they are indicating that they are not suffering from abuse, unless there is clear evidence of undue influence, there is little that the Local Authority can do to protect someone they know to be at risk. If the elderly person has capacity concerning the issues in question, then they have the right to make their own decisions. Local Authorities have limited powers to intervene where someone has decision making capacity and if the person is not eligible for services under the Care Act 2014, then there isn’t much the Local Authority can do to intervene as it remains the case that the authority can only use the powers available to it under community care legislation.
For example, where a family member makes a complaint about another family carer the authority may undertake an initial scoping investigation, but on meeting the elderly person they may consider that a) the individual has capacity to make decisions about where they live and who provides them with care; and b) they have made their own decision to remain in that environment. If that is the case, then unless there are significant concerns that the elderly person’s needs are not being met (which can then be addressed using community care legislation), then the local authority is unlikely to do anything, usually citing that it is a ‘family matter’. Where they are so pushed for resources, it is not surprising.
The situation is slightly clearer, and the pathway to resolving any investigations more direct, when the elderly person lacks capacity to make decisions in respect of care, accommodation and generally, contact with family members. The Local Authority can then use the legal framework provided by the Mental Capacity Act 2005 to put in place measures that are deemed to be in that individual’s best interests. Any dispute as to best interests is referred to the Court of Protection for a decision.
This enables us, as lawyers, to get the situation squarely into the public law domain, and as a welfare lawyer, this is the point at which I become involved. This makes it easier for the family argument situations to be looked at from a broader perspective, with the opportunity for a challenge against the authority if they don’t properly investigate.
Applications may be made to the Court of Protection by Local Authorities to remove an elderly person who is being abused from their home to a nursing, or care home. This is something I see a lot of and I am frequently instructed to represent the elderly person, either by the Official Solicitor, or by someone else acting as litigation friend for that person.
I also receive instructions from family members who are accused of abusing the elderly person in some way. Often these are allegations of not meeting the elderly person’s needs and not following professional advice. In these situations it is incredibly important for any evidence to be handled carefully and sensitively as, in many cases, the elderly person is not being abused at all; their family is trying to do the best they can but possibly just need some additional support rather than the removal of their loved one.
If the Local Authority is not satisfied and can prove that the care the elderly person is receiving at home is not sufficient, then the court will usually agree that their needs are too great to be met at home. This generally alleviates the need for the court to consider the truth and extent of the allegations made.
This type of hearing is not good for anyone, because ultimately, once the lawyers have gone, the family still wants to see their loved one and will still have to work with the social care team and the care staff.
The introduction of relevant parts of the Care Act 2014 could now help before we get to this situation. The ‘well-being principle’ that runs through the Care Act will apply to Safeguarding investigations and in my example above, where there were concerns about a capacitous family member under the care of another family member, perhaps I would have been able to use the ‘well-being’ principle to cause the Local Authority not to close their case as being ‘a family matter.’
As discussed previously, the new system is centred on the individual having needs requiring care or support. The Care Act requires an assessment of needs to be undertaken (even if rather alarmingly an individual with capacity refuses). It doesn’t matter if these are ‘eligible’ needs; they can be low or moderate needs as well as Substantial or Critical, but the Care Act provides that local authorities now have a statutory duty to meet those needs.
For further information please contact Jess Flanagan.