1. Introduction

Everyone deserves to be treated with kindness, compassion and respect. Staff in all organisations should care for adults with care and support needs in the same way they would want their own relatives or themselves to be treated in such circumstances.

Kindness, compassion and respect should be a part of the everyday care given to adults with care and support needs. Managers should make sure that staff are given the time to not only perform their duties, but to build relationship with the adults they are working with and their families. The care, compassion and empathy they give should be genuine; this is only possible if the right people have been recruited for the right post (see Safer Recruitment chapter) and the service has strong values at its centre.

There are too many distressing cases of adults with care and support needs who have not been treated with kindness, compassion, dignity or respect, for example Whorlton Hall , the Edenfield Centre  and Winterbourne View. Some staff received criminal convictions and prison sentences as a result of their abuse and neglect (see also Ill Treatment and Wilful (Deliberate) Neglect chapter).

2. Kindness, Compassion and Dignity in Delivering Services

Services which are regulated and inspected by the Care Quality Commission, will be assessed against the following the quality statement:

‘We always treat people with kindness, empathy and compassion and we respect their privacy and dignity. We treat colleagues from other organisations with kindness and respect.’

Quality statements set out what the CQC expect each service to deliver. It is also very relevant for services who are accountable to other inspectorates or commissioners. Related issues also include privacy and confidentiality and emotional wellbeing (see Information Sharing and Confidentiality and Promoting Wellbeing chapters).

Skills for Care note the following factors in relation to kindness, compassion and dignity:

• ‘We can evidence that people feel cared for and that they are treated with respect and dignity. This is reflected in both day-to-day support and their care plans.
• We get to know what is important to each person we support to meet their emotional wellbeing needs and what they value about dignity and respect.
• We create an environment where people who need care and support feel that they belong to and are proud about the service.
• We ensure our residential environments and/or offices are well maintained with high standards of décor to provide people a dignified place to live, visit, and work.
• We create an empowering culture where people who need care and support are confident and comfortable around those who care for them.’

All staff should:

• recognise the diversity, values and human rights of each adult and their family members (see also Equality, Diversity and Human Rights and Providing Culturally Appropriate Care chapters);
• uphold and maintain the adult’s privacy, dignity and independence at all times, treating them as equals;
• provide care, support and treatment to adults in a way that ensures their dignity, and treats them with compassion and respect at all times;
• provide any support that adults might need to be independent and involved in their community, as appropriate;
• help adults maintain relationships with people who are important to them;
• put adults at the centre of their care and support by supporting them to make decisions;
• make sure that all communication with adults and their families is respectful and compassionate. This includes using the adult’s preferred means of communication and respecting their right to engage – or not engage – in communication;
• provide information that supports the adult’s involvement in safeguarding processes;
• address them in the way they wish, including their preferred name.

3. Person Centred Care and Support

Adults should be involved in and receive care and support that respects their right to make or influence decisions about their lives and the services they receive, or their representative if they do not have mental capacity.

Staff providing care and support should:

• explain and discuss their care and support options with the adult and their family, in a way that makes sense to them;
• respect the adult’s right to take informed risks, while balancing the need for preference and choice with safety and effectiveness;
• ensure that things that the adult’s wishes and needs in relation to their care and support are established as part of their assessment and when developing and reviewing their care and support plans;
• promote and respect the adult’s autonomy, privacy, dignity, compassion, independence and human rights at all times by:
  • placing their needs, wishes, preferences and decisions at the centre of their care and support (see also Providing Culturally Appropriate Care chapter);
    • respecting their personal preferences, lifestyle and care choices;
    • respect the preferences of adults who need intimate or personal care, including making every reasonable effort to make sure that this can be provided by a staff member of a specified gender;
  • actively listen to and involve adults, or others acting on their behalf, in decision making and ensure there are clear records that evidence the decisions made and methods in which the decision was achieved;
  • provide information to adults to help them, or others acting on their behalf, to understand their care and support, including the risks and benefits, and their rights to make decisions;
  • know how to raise a concern or complaint about the organisation, and how it will be dealt with (see Complaints, Comments, Compliments and Questions chapter).

4. Staff Concerns

If a member of staff has concerns that a colleague/s is not treating adults in their care with kindness, compassion and respect, they should speak to their manager or a senior manager, if they think their manager is involved in any way. The manager should investigate the concerns and take action as required.

If the member of staff does not feel that the manager has taken their concerns seriously or investigated them properly, they should raise their concerns through other methods (see Whistleblowing chapter).

5. Further Reading

5.1 Relevant chapters

Equality, Diversity and Human Rights

Knowsley Safeguarding Adults Board Procedures

Providing Culturally Appropriate Care chapter

5.2 Relevant information

Kindness, Respect and Compassion (CQC) 

Warmth and Kindness to bring Dignity in Care (SCIE)

Good and Outstanding Care: Inspection Toolkit (Skills for Care) 

1. Introduction

Good infection prevention and control (IPC) measures are essential to ensure that adults who are living in their own homes and whose care and support needs are met service providers and visited at by adult social care (ASC) staff, receive safe and effective care. It must be embedded into everyday practice, with the same high standards applied by all staff.

This chapter outlines the different areas in which action must be taken to keep adults and staff safe.

2. Processes

2.2 Training and information

All relevant ASC staff should complete IPC training as part of their induction and regular update training should also be provided. Additional training may be required in response to an incident or particular circumstances, such as the covid pandemic.

2.3 Audit

ASC should ensure there is a robust audit process to ensure that all necessary IPC processes are adhered to. This should include a review of care and support practices to ensure that principles and guidance covered in training are being fully implemented.

It will be the responsibility of the ASC IPC lead to ensure that any corrective actions identified as a result of an audit are implemented within the agreed timescales.

3. Infection Prevention and Control Risk Assessments

Staff should ensure that risk assessments in relation to IPC risks for adults who receive care and support at home, are carried out:

• during the first contact with the adult; and
• reviewed at agreed intervals or sooner if changes occur.

The risk assessment should be recorded and should identify any steps required to eliminate, reduce or control risks from infection.

Where required, and together with health practitioners, the IPC lead should monitor the risks of infection to determine whether further steps are needed to reduce or control infection.

3.1 Infection risk assessment

Assessing a person’s risk of catching or spreading an infection and providing them with information about infection is essential for the adult’s safety.

Where there is a medical history or risk of infection, this should be included in their assessment, care and support plan and review of the plan. The assessment should determine whether any extra IPC precautions are needed, such as whether staff need to wear additional personal protective equipment (PPE). It should include all factors which may mean the person is at higher risk of catching or spreading infection including:

• symptoms:
  • history of current diarrhoea or vomiting;
  • unexplained rash;
  • fever or temperature;
  • respiratory symptoms, such as coughing or sneezing;
• contact:
  • previous infection with a multi-drug resistant pathogen (where known);
  • recent travel outside the UK where there are known risks of infection;
  • contact with people with a known infection;
• person risk factors:
  • vaccination status which will assist assessment of their susceptibility to infection and allow protective actions to be taken when necessary;
  • wounds or breaks in the skin;
  • invasive devices such as urinary catheters;
  • conditions or medicines that weaken the immune system;
• environmental risk factors, such as poor ventilation in the home (Infection Prevention and Control: Resource for Adult Social Care (Department of Health and Social Care).

4. Reducing the Risk of Spreading Infection

4.1 Actions

Staff who are suspected or have contracted an infectious disease should be placed on sick leave and contact / visit their GP or other medical services for assessment and treatment as necessary.

Specialist health and safety advice may also be required to provide further guidance. ASC staff should work with health professionals, the adult and their family in order to provide continuing care and support to the adult and reduce the risk of further spread of infection.

Staff should wear any additional PPE as required.

4.2 Control principles

There are a number of control principles for care staff as outlined in Infection Prevention and Control: Resource for Adult Social Care (Department of Health and Social Care):

‘Reducing the hazard

Public health measures such as vaccination, testing and isolation help to reduce the risk of infection. Vaccination against respiratory illnesses such as flu and COVID-19 is an important measure in reducing the risk of severe disease. Measures such as not coming to work when ill, advising people to isolate while infectious and recognising and reporting infections promptly, all help to prevent infections spreading at work.

Changing what we do

When faced with a particular risk, such as an outbreak, we may need to change what we do. This might include reducing communal activities, limiting visiting, or adding disinfection into a more frequent cleaning schedule, for example.

Changing where we work

We may not be able to change where we work but the work environment can be made as safe as possible. For example, by improving ventilation, ensuring fixtures and fittings are in good repair and can be easily cleaned and following water safety guidelines, we reduce opportunities for pathogens to survive in the environment.

Changing how we work

Changing the way we organise work can reduce risk. Examples include reducing the number of people in a space at any one time and minimising the movement of staff between different settings. Administrative controls such as risk assessments, training, audit, and providing clear signage and instructions also help to reduce the risk of infection at work.’

4.3 Standard infection control precautions

See Infection Prevention and Control: Resource for Adult Social Care, Preventing Infection section (Department of Health and Social Care) for a full current list of infection control precautions.

5. Responding to Infections

5.1 Medical intervention

At the first sign of any transmissible illness, the adult’s relatives should be informed. With the adult’s permission (or their carer if the adult does not have the mental capacity to consent – see Mental Capacity chapter), their GP should be contacted and a visit requested.

Where the illness is more urgent the ambulance service should be contacted and visit the adult to conduct an assessment. If it is suspected that hospital or Accident and Emergency admission will be necessary, the hospital should first be contacted for advice, as it may not be advisable to take an adult with an infectious illness to an area where there are other people.

The adult’s GP should arrange any relevant testing required for diagnosis, treatment and management of the illness. Staff should ensure that the adult receives any treatment as prescribed by the doctor.

5.2 Obtaining advice

ASC staff or the manager should obtain advice from relevant health practitioners whenever required.

6. Cleaning

6.1 Cleaning

See also Infection Prevention and Control: Resource for Adult Social Care, Preventing Infection section (Department of Health and Social Care)

When working with adults in their own homes, levels of tidiness and cleanliness will vary, but staff should always adhere to the same principles of IPC whatever the circumstances in which they are working.

Where there is equipment in the adult’s home for use during the provision of care and support, for example hoists, beds and commodes, they should be cleaned and disinfected as required.

Staff should ensure there is adequate and suitable hand washing facilities and anti-microbial hand washes where required. This may include being issued with pocket sized bottles to use if there are no adequate facilities in the adult’s home.

7. Information

7.1 Information to adults and their visitors

Information on the general principles of infection prevention and control should be available to all adults, their relatives, friends and any other visitors to the adult’s home. This is particularly important if an adult as a medical history of, or is at risk of, infection. This should include:

• general principles on the prevention and control of infection;
• supporting adults’ awareness and involvement in relation to IPC;
• the role of adults (where appropriate), carers, relatives and advocates in IPC;
• the importance of hand hygiene measures;
• reporting any concerns about hygiene or cleanliness;
• providing explanations of incidents / outbreaks.

Where staff have any concerns, they should report them to their manager. The manager may need to consult a specialist IPC advisor, the outcome of which should be shared with the adult’s and their family as appropriate.

8. Relevant Information

Infection Prevention and Control: Resource for Adult Social Care (Department of Health and Social Care)

1. Working with Adults who cannot make Decisions themselves

When working with an adult who lacks mental capacity, it is important to be clear about who the decision maker is.

When practitioners are supporting an adult who lacks the mental capacity to make decisions regarding health and welfare or property and finance, it is important to find out if there is a ‘lasting power of attorney’ (LPA) or ‘deputyship’ in place. The Office of the Public Guardian (OPG) can provide information on whether a person has an LPA, enduring power of attorney or court appointed deputy (see Find Someone’s Attorney, Deputy or Guardian).

An LPA is a legal document that enables a donor (that is the person who wants to have the LPA) to select an attorney (the person the donor has chosen) to act on their behalf in relation to two types of decisions:

1. health and welfare and / or;
2. property and finance.

A donor can have a number of attorneys and replacement attorneys (these are attorneys who will step into the role of attorney if the current named attorney/s can no longer act). When there are a number of attorneys, the donor needs to choose if they will act ‘jointly’ (which means all attorneys need to make a decision together), or ‘jointly and severally’ (which means attorneys can make decisions together or separately) for specific decisions.

For health and welfare matters, the donor must lack the mental capacity to make the decision in question before the attorney/s can take over this role (this can be different for property and finance (see Section 1.1). The reason someone may lack mental capacity is usually either because of a lifelong disability that affects their cognition, such as a severe learning disability or a progressive condition such as dementia. However, it is important to remember that just because someone has an impairment of, or a disturbance in the functioning of the mind or brain it does not automatically mean that they cannot make a decision. A mental capacity assessment will need to be carried out to evidence why the person cannot make a particular decision. The mental capacity assessment will look at the person’s diagnosis, how they present and how this is impacting them (causative nexus). (See Mental Capacity and Code of Practice chapter.)

There are two options for LPAs: property and finance or health and welfare. The donor can apply for both or just one.

1.1 Property and finance

Property and finance cover matters such as selling a property, paying bills, withdrawing money, paying care fees, accessing bank accounts and investments, pensions and benefits.

When a person has mental capacity, they can legally appoint someone as their attorney with LPA for property and finance. A difference between property and finance and health and welfare LPAs is that for property and welfare, the donor can select that they are happy for the attorney to act on their behalf even while they have the mental capacity. Alternatively, the donor can set up the LPA so that the attorney can only act on their behalf if they lack mental capacity. The donor also has the option to set instructions on what the attorney can and cannot do. This means it is important that practitioners check the specific details in the LPA document whenever they are working with someone who has an LPA.

1.2 Health and welfare

Health and welfare covers, for example, decisions around medical care, care needs, moving into a care home or staying at home and how support needs will be met (see also Lasting Power of Attorney: Acting as an Attorney: Health and Welfare Attorneys (gov.uk).

Health and welfare LPAs only become valid when the donor lacks mental capacity to make the specific decision for themself. When completing the application, the donor has the option of selecting if they also want the person they appoint as attorney to make decisions about life-sustaining treatment on their behalf. It is important to remember that life-sustaining treatment can also cover things such as antibiotics due to having pneumonia or being put on a ventilator.

When healthcare or social care staff are involved in preparing a care plan for someone who has appointed a health and welfare attorney, they must first assess whether the donor has the mental capacity to agree to the care plan or parts of it. If the donor lacks mental capacity, practitioners must consult the attorney and seek their agreement to the care plan. They will also need to consult the attorney when considering what action is in the person’s best interests.

In practice, if the person is paying for their own care, there may be more choice about, for example, the choice of a care home than if the local authority or NHS is paying. If the local authority or trust is paying, the person choosing the home should still have a choice of care home. However, the list will be limited to the homes that the local authority or trust will fund. In either situation, the legal decision-maker is the attorney acting in accordance with the LPA.

2. What Happens when an Adult Lacks Mental Capacity – Can Someone be Appointed to act as their LPA?

No, at the time of applying for LPA the donor must have mental capacity. If an adult lacks the mental capacity for this decision, the person wanting to act on their behalf would need to apply for a deputyship. Deputyship is put in place by the Court of Protection; the person wanting to be the deputy has to make the application to the court.

The application to the Court will include a mental capacity assessment (which will be completed by a medical professional or a social worker) to evidence that the person lacks the mental capacity to make decisions as to how to manage their property and finances or health and welfare. The Court will decide if the applicant can act on the person’s behalf. There are a few differences between deputyship and LPA, for example with health and welfare, the life-sustaining treatment option is not applied to deputies. This is due to this being such a significant decision the courts believe that this should be made following consultation with all those involved.

3. How to Check if there is a Valid LPA in Place

The Office of the Public Guardian (OPG) holds the records of all registered and valid LPAs (this includes enduring power of attorney and deputyship).

If someone says they have LPA for property and finance and / or health and welfare, the practitioner must ask the attorney to provide the original document which has the OPG reference number. The information is in page 1 in Section 1: The donor; the registration date and reference number are at the bottom marked for ‘OPG office use only’.

If the paperwork is not available, the OPG can carry out a check to see if there is a valid the LPA. This can take some time, therefore if an urgent response is required (for example as part of a safeguarding enquiry), this can be requested online using a template. The OPG normally responds within 48 hours to urgent requests.

Alternatively, the donor or attorney named on the LPA can provide an LPA access code. Practitioners can use the code online to:

• view a summary of an LPA;
• check whether an LPA is valid;
• check who the attorneys are on an LPA.

See View a Lasting Power of Attorney

4. Other Types of Legal Authority that can Support the Adults when making certain Decisions

There are a number of other types of legal authority that can support adults when making particular decisions. These are:

• enduring power of attorney: this was in place before LPA was introduced in 2007. It only covered finance and property. Enduring power of attorney could only be registered when a person lacks mental capacity. This is no longer appointed and there are not many remaining in place;
• advance decision: this can only be used to refuse medical treatment. To be valid the person must be 18 or over, have the mental capacity to have made an advance decision, which is witnessed, and signed (and therefore is legally binding). Practitioners may come across advance decisions for finances and property; these should not be ignored but instead would need to be considered under ‘wishes and feelings’ (which is a formal term used as part of best interests decisions). See also Advance Care Planning chapter);
• best placed professional: if none of the above are in place, the most relevant professional becomes the decision maker for the specific decision in question, for example medical decisions would be the responsible doctor; care and support needs it would be the social worker; for managing finances it would be the social worker;
• Court of Protection: At times the decision may be made by the Court of Protection. This includes when a decision is in dispute, or it is an ‘excluded decision’, which a practitioner has no legal authority over, such as if the person lacking mental capacity wants to get married (see Mental Capacity Code of Practice chapter).

4.1 Other important considerations

Advance statement: This contains the person’s wishes and feelings for example how they want to be cared for, where they want to live etc. It is not legally binding, but the person’s views need to be considered and the decision will be heavily weighted by this.

Next of kin: The person’s next of kin has no legal decision-making authority to make decisions about the person. They would need to have LPA or a deputyship in place. However, practitioners still need to take into consideration their wishes and feelings.

5. Consulting with Others

The attorney has a duty to make decisions subject to the provisions of the Mental Capacity Act (MCA) 2005 (as amended) (including acting in accordance with the principles in section 1 of the MCA and the provisions relating to acting in the donor’s best interests in section 4 of the MCA) and to any specific conditions or restrictions imposed by the LPA.

When deciding what is in the donor’s best interests, attorneys should consider the donor’s past and present wishes and feelings, beliefs and values. Where practical and appropriate, they should also consult with:

• anyone involved in caring for the donor;
• close relatives and anyone else with an interest in their welfare;
• other attorneys appointed by the donor.

An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority. As with all decisions, an attorney must act in the donor’s best interests when making decisions about such treatment. This will involve applying the best interests checklist and consulting with carers, family members and others interested in the donor’s welfare. In particular, the attorney must not be motivated in any way by the desire to bring about the donor’s death.  Anyone who has concerns that the attorney is not acting in the donor’s best interests can apply to the Court of Protection for a decision (see Best Interests chapter).

6. What if the LPA or Deputy Refuses to make the Decision?

Attorneys have a duty not to delegate their decision-making responsibilities to others and must carry out their duties personally, unless authorised by the donor to delegate specific decision-making responsibilities. The attorney may seek professional or expert advice (for example, investment advice from a financial adviser or advice on medical treatment from a doctor). But they cannot, as a general rule, allow someone else to make a decision that they have been appointed to make, unless this has been specifically authorised by the donor in the LPA.

In certain circumstances, attorneys may have limited powers to delegate (for example, through necessity or unforeseen circumstances, or for specific tasks which the donor would not have expected the attorney to attend to personally). But attorneys cannot usually delegate any decisions that rely on their discretion.

Where an attorney refuses to comply with their responsibilities, application may need to be made to the Court of Protection for a decision to be made.

7. What if there are Concerns about the Attorney / Deputy?

At times practitioners may have concerns with the LPA or deputy that is in place. This can include things such as the appointed person not acting in the person’s best interests, suspected financial abuse by the appointed person, the appointed person selling the individual’s property when this is not in their best interests, etc. If a practitioner has any concerns about an LPA or deputyship that is in place, it may be appropriate to first work with the attorney to come to a resolution, for example via mediation. However, the practitioner should contact their local safeguarding adults team if they are concerned the attorney is financially abusing or has harmed the donor. Where there are potential criminal offences, the police should be informed. The practitioner will also need to contact the OPG. The OPG can apply to the Court of Protection to remove an attorney if there are concerns about their behaviour.

8. Ending a Lasting Power of Attorney / Deputyship

The donor can end the LPA at any point as long as they have the mental capacity to make such a decision. The attorneys themselves can also remove themselves from the role. The attorney will be asked to return any legal documents to the OPG.

The attorney’s role will also be ended if the donor passes away, the attorney passes away or loses mental capacity and a replacement attorney was not named, or the donor did not state that they must act jointly if the donor’s marriage to the attorney ends and if the attorney of property and finance becomes bankrupt.

With some LPAs there may be a named replacement attorney who would be able to pick up this role if the current attorney is unable to act anymore.

9. Case Examples

9.1 Case example for an adult who self-funds their care and support

Mary has dementia and has been cared for at home with a package of care funded by the family. However, there have been several incidents that have led to Mary assaulting her husband meaning her needs can no longer be met at home. The husband holds an LPA for Property and Financial Affairs and Health and Welfare. The husband has requested a Care Act assessment and following a financial assessment, Mary has been assessed as self-funding her care. The husband has spoken to the social worker who has advised that a care home would be most suitable for Mary. The husband spoke to the GP and the district nurse about this decision as he wanted to seek their views. The social worker advised the husband that it was his decision to choose the care home and provided some information on care homes that were potentially suitable to meet his wife’s needs. As Mary was self-funding her care and LPA was in place, the decision maker was her husband. Her husband informed the social worker that his wife loved living in the countryside, and it would be important to her that the care home be somewhere quiet, with not too many residents, and had lots of space for his wife to wander the grounds.

The MCA is underpinned by five key principles. In line with these, the LPA or deputy must consult with others who are relevant to the decision being made and must act in the person’s best interests. In the example above, Mary’s husband has consulted with relevant professionals and has followed Mary’s views and wishes when it comes to finding a suitable placement for her.

If in this example, the local authority was funding the care and support, the person choosing the home on Mary’s behalf (her husband) should still have a choice of care home, but the choice will be limited to the homes that the local authority will fund. In either situation, the legal decision-maker remains the attorney (Mary’s husband) acting in accordance with the LPA.

9.2 Case example for an adult who needs medical treatment

Tom has a severe learning disability and has been admitted to hospital due to having eating and drinking difficulties. After further investigations, the consultant has recommended that Tom requires a PEG (percutaneous endoscopic gastrostomy). Tom’s parents try to refuse this treatment stating they have an LPA ‘for everything’ and that they want Tom to be able to eat ‘normally’ and not via a tube. However, upon the social worker submitting an urgent request with the OPG, the OPG confirm that Tom’s parents have LPA for property and finance only. Therefore, the decision maker will be the consultant.

If there is no LPA / deputy in place, the relevant practitioner is the decision maker, depending on the decision that needs to be made.

However, in such cases just because family are not the decision maker does not mean they do not have a voice. With any decision, the family’s views are important and hold weight towards the decision. If a unanimous decision cannot be reached, a court application may be required to make the decision.

9.3 Case example for an adult who is Continuing Health Care funded

Helen is fully health-funded and is currently in a nursing home that is closing down. The Continuing Health Care (CHC) nurse has checked their system which states there is no LPA / deputy in place. However, there is also no evidence of how this was checked. The CHC nurse ensures that they complete a check with the OPG who confirms there is no LPA / deputy in place. The nurse saves this email confirmation to the person’s record. The CHC nurse is the decision maker regarding the move to a new placement, they ensure they speak to all involved in the person’s care to gain their views including family. All interested parties agree one of the placements is in Helen’s best interests to move to.

With CHC cases it is important to make sure they are funding 100% of the care, if a split funding agreement is in place, then the local authority is the decision maker.

10. Useful Information

Best Interests Decision-Making for Adults who Lack Capacity: A Toolkit for Doctors Working in England and Wales (BMA) 

Find out if Someone has a Registered Attorney or Deputy (Office of the Public Guardian) 

LPAs – the Duties on the Certificate Provider (Mental Capacity Law and Policy) 

Mental Capacity Code of Practice (Office of the Public Guardian) 

Urgent Enquiries: Check if Someone has an Attorney or Deputy (Office of the Public Guardian) 

View Lasting Power of Attorney (gov.uk) 

Using a Lasting Power of Attorney (gov.uk) 

Audio & Quick Read Summary

1. Introduction

Many of the local authority’s care and support responsibilities apply to the entire local population (see for example Information and Advice or Reducing, Preventing or Delaying Needs chapters). However, the local authority is only required to meet the care and support needs of those adults who are ‘ordinarily resident’ its area (or are present there but have no settled residence, see Section 7, Persons with no Settled Residence).

Ordinary residence is used to decide which local authority is responsible for meeting the care and support needs of adults, and their carers. Whether the person is ordinarily resident in the local authority area is a key test in determining where responsibility lies for the funding and provision of care and support.

This chapter should also be read with the Care and Support Statutory Guidance, in particular the Annexes, which provide further detailed guidance on specific situations and circumstances which may arise, and where the question of ordinary residence may be unclear.

2. Statutory Provisions of the Care Act 2014 Relevant to Ordinary Residence

The statutory provisions of the Care Act relevant to ordinary residence are:

• Sections 9 and 10 – a duty to assess;
• Section 13 (1) eligibility criteria;
• Section 13 (3) and (4) ordinary residence.

Under Section 18(1)(a) of the Care Act 2014, the local authority has a duty to meet an adult’s eligible needs for care and support if they are ordinarily resident in the authority’s area or is present in its area but of no settled residence.

There is also a power for local authorities where no duty exists under the Care Act; Section 19(1) provides that a local authority, having carried out a needs assessment and, if required to do so a financial assessment, may meet an adult’s needs for care and support, if the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, where the local authority have determined no duty under section 18.

3. How does Ordinary Residence affect the Provision of Care and Support?

Ordinary residence is one of the key tests which must be met as part of establishing if the local authority is required to meet an adult’s eligible needs for care and support. It is therefore crucial that the local authority establishes, at the appropriate time, whether an adult is ordinarily resident in their area, and the extent and nature of such duties that may arise.

The process of determining ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority where that adult is physically present should meet their needs while the question of ordinary residence is being resolved. This is particularly important where there may be a dispute between two or more local authorities. If an adult has urgent needs for care and support these should be met, before completion of an assessment, regardless of the adult’s ordinary residence.

3.1 Adults and carers

The test for ordinary residence, applies differently in relation to adults and carers. For adults with care and support needs, the local authority in which the adult is ordinarily resident is responsible for meeting their eligible needs. For carers, however, the responsible local authority will be the one where the adult for whom they provide care is ordinarily resident. To establish responsibility for the provision of care and support for carers, the local authority will need to establish the ordinary residence of the adult the carer is supporting.

Where a carer provides care for more than one person in different local authority areas, the authorities should consider how best to cooperate and share the provision of support. For example, where services or interventions directly relate to the caring responsibilities for one individual (for example, equipment installed in the carer’s home for use by one adult), then it is straightforward to identify which local authority is responsible. However, where the same piece of equipment is used by the carer with more than one adult, then the local authorities concerned should agree how to arrange the package. There might be an agreement to jointly fund the support for the carer, or the authorities may agree that one takes overall responsibility for certain aspects. For example, one authority might lead on reviews because it is geographically closer to the carer’s home.

4. How to Determine Ordinary Residence

The local authority’s responsibility for meeting a person’s eligible needs is based on the concept of ordinary residence. There is, however, no definition of ordinary residence in the Care Act, so the term should be given its ordinary and natural meaning.

In most cases, establishing the person’s ordinary residence is a straightforward matter. However, there will be circumstances in which ordinary residence is not clear cut, for example when people spend their time in more than one area or move between areas.

Factors such as time, intention and continuity (each of which may be given different weight in individual cases) should be considered. The courts have considered the meaning of ordinary residence, and the leading case is that of Shah v London Borough of Barnet (1983) 2 AC 309. In the Shah case, Lord Scarman stated that:

unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

Local authorities must have regard to this case when determining the ordinary residence of adults who have the mental capacity to make decisions about where they wish to live, and should apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether that be for a short or long duration.

Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area.

There is no minimum period in which a person must be living in a particular place for them to be considered ordinarily resident there, it is the nature and quality of their connection with the new place which is important. Ordinary residence can be acquired as soon as a person moves into an area.

In certain situations, a person’s ordinary residence can be in a different area to that in which they are  physically present (see Section 6, Looked after Children Transitioning to Adult Social Care Services, Section 7, Persons with no Settled Residence and Section 8, Ordinary Residence when Arranging Care and Support in another Area).

Temporary absences – such as holidays, hospital visits, and term times at university do not break the continuity of ordinary residence. People may have more than one home, they may own or have an interest in another property in another area. See Section 11.1, Temporary absences and Section 11.2, People with more than one home.

5. Where a Person Lacks Mental Capacity to Decide where to Live

See also Mental Capacity and Code of Practice chapter

All issues relating to mental capacity should be decided with reference to the Mental Capacity Act 2005 (MCA). Under the Act, it must always be assumed that adults have capacity to make their own decisions, including decisions relating to their accommodation and care, unless it is established to the contrary.

The test for mental capacity is specific to each decision at the time it needs to be made, and a person may have mental capacity to make some decisions but not others.  It is not necessary for a person to understand local authority funding arrangements for them to have capacity to decide where they want to live.

If it can be shown that a person lacks mental capacity to make a particular decision, the MCA makes clear how decisions should be made for that them. For example, if a person lacks mental capacity to decide where to live, a best interests decision about their accommodation should be made. Any actions or decision made for a person who lacks mental capacity (including decisions relating to where they live), must be taken or made in their best interests.

Where an adult lacks mental capacity to decide where to live, and their place of ordinary residence needs to be determined, the test in the Shah case (see Section 4) is not directly applicable, as it requires the voluntary adoption of a place.

However, in the Cornwall case (R (on the application of Cornwall Council) v Secretary of State [2015] UKSC 46) the Supreme Court made it clear that to establish the ordinary residence of adults who lack mental capacity, local authorities should adopt the Shah approach and have no regard for the fact that the adult, by reason of their lack of capacity, does not live there voluntarily.

In such cases, the local authority should consider the following when establishing whether the purpose of the residence has a sufficient degree of continuity to be described as settled, whether for a long or short duration:

• the place of the person’s physical presence;
• their purpose for living there;
• the person’s connection with the area;
• their duration of residence there;
• the person’s views, wishes and feelings (as far as these are ascertainable and relevant).

6. Looked after Children Transitioning to Adult Social Care Services

In the Cornwall judgement, the Supreme Court held that a looked after child who had been placed by local authority B with foster carers who live in local authority A, continued to be ordinarily resident in local authority B when they reached 18 years for the purposes of deeming provisions in the 1948 National Assistance Act (NA Act). This legislation predated the Care Act statutory framework around ordinary residence; the provisions are set out in sections 21; 24;29; 32(3)-(5) of NA Act and supporting directions LAC (93) 10 Approvals and Directions for Arrangements Ordinary Residence Disputes NA Act1948 Directions 1948. The Supreme Court set out that the underlying purpose behind deeming provisions in both children’s and adult legislation is that: ‘an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it.’

This means that any person who moves from accommodation provided under the Children Act 1989 to accommodation provided under the NA Act or the Care Act, remains ordinarily resident in the local authority in which they were ordinarily resident under the Children Act. This includes a situation where a child has been placed out of area under the Children Act as a looked after child, and at the age of 18 requires residential accommodation under the NA Act or the Care Act as well as support as a care leaver under the Children Act.

The types of accommodation to which these adult deeming provisions apply is:

• ‘specified accommodation’ (under the Care Act) in circumstances where the adult’s needs can be met only if they are living in accommodation of a specified type. The types currently specified are: care homes, shared lives scheme accommodation and supported living accommodation;
• NHS accommodation (under the Care Act);
• residential accommodation (under the NA Act);
• NHS accommodation (under the NA Act).

6.1 Accommodation to which deeming provisions do not apply.

In cases where the deeming provisions do not apply, although the provisions of the Children Act normally no longer apply once a young person reaches the age of 18, local authorities should start from a presumption that for the purposes of the NA Act or the Care Act, the young person remains ordinarily resident in the local authority in which they were ordinarily resident under the Children Act.

However, this is only a starting point, and if the young person moves to other than specified accommodation and has mental capacity to decide where to live, then the Shah test can be applied to determine ordinary residence.

7. Persons of No Settled Residence

Where there are questions in relation to a person’s ordinary residence, it is usually possible for the local authority to decide that the person has resided in the area long enough or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that the local authority concludes that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, the local authority may conclude the person to be of no settled residence.

The Care Act makes clear that local authorities have a duty to meet the eligible needs of people who are present in its area but of no settled residence.  This means, people who have no settled residence, but are physically present in the local authority area, should be treated in the same way as those who are ordinarily resident.

The local authority may conclude that a person arriving from abroad is of no settled residence, including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country. See also Annex H: Ordinary Residence, British citizens resuming permanent residence in England after a period abroad.

8. Ordinary Residence when Arranging Care and Support in another Area

There may be some cases where the local authority considers that the person’s care and support needs can only be met if they are living in a specified type of accommodation. This could be in a care home, or other kinds of provision. If the specified accommodation in which the care is provided is located in the area of another authority, it is important that there is no question as to which local authority is responsible for meeting the person’s needs.

The Care Act and the Care and Support (Ordinary Residence) (Specified Accommodation) Regulations set out what should happen in these cases; a  person placed ‘out of area’ is deemed to continue to be ordinarily resident in the area of the first authority, and does not acquire ordinary residence in the ‘host’ or second authority. The local authority which arranges the care in the specified accommodation retains responsibility for meeting the person’s needs.

The regulations specify three types of specified accommodation to which this provision applies:

1) nursing homes / care homes: accommodation which includes either nursing care or personal care

2) supported living / extra care housing this is either:

• specialist or adapted accommodation: this means accommodation which includes features that have been built in or changed to in order to meet the needs of adults with care and support needs. This may include safety systems and features which enable accessibility and navigation around the accommodation and minimise the risk of harm, as appropriate to the individual;
• accommodation which is intended for occupation by adults with care and support needs, in which personal care is also available, usually from a different provider.

3) shared lives schemes: accommodation which is provided together with care and support for an adult by a shared lives carer, approved by the scheme, in the shared lives carer’s home under the terms of an agreement between the adult, the carer and any local authority responsible for making the arrangement. The shared lives carer will normally be providing personal care, but they will not need to provide it in every case.

Where an adult’s care and support needs can only be met by living in one of these specified types of accommodation, and the accommodation arranged is in another local authority area, then the principle of ‘deeming’ ordinary residence applies. This means that the adult is treated as remaining ordinarily resident in the area where they were resident immediately before the local authority began to provide or arrange care and support in any type of specified accommodation.

8.1 Deeming provisions for specified accommodation post Care Act 2014

Section 39 (1) Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, and the adult is living in accommodation in England of a type so specified, the adult is to be treated for the purposes of this Part as ordinarily resident:

1. in the area in which they were ordinarily resident immediately before they began to live in accommodation of a type specified in the regulations, or
2. if they were of no settled residence immediately before they began to live in accommodation of a type so specified, in the area in which they were present at that time.

This means that that the local authority initially providing that care and support will remain responsible for meeting the person’s eligible needs, and responsibility does not transfer to the authority in whose area the accommodation is physically located. However, in circumstances where a person with mental capacity moves to accommodation in a different area of their own choice without the local authority making the arrangements, they would be likely to acquire ordinary residence in the area of the authority where the new accommodation is situated.

The deeming rule does not apply where a person has chosen to arrange their own care in a type of specified accommodation in another area, and then later asks for local authority support.

Decisions about whether needs are ‘able to be met’ or of a kind that ‘can be met only’ through a specified type of accommodation should be made with the adult as part of the assessment and care and support planning processes. Where the outcome of the care planning process is that the adult’s needs should be met in one of the specified types of accommodation, this should be clearly recorded in the care and support plan. The local authority is not required to demonstrate that needs cannot be met by any other type of support. The local authority must have assessed those needs in order to make such a decision – the ‘deeming’ principle therefore does not apply to cases where a person arranges their own accommodation, and the local authority does not meet their needs.

The first local authority’s responsibility will continue in this way for as long as the person’s eligible needs are being met by the specified type of accommodation. This will include situations where the person moves between care and support provided in different specified types of accommodation in another (or more than one other) area. As an example, if the first authority arranges care and support in one type of accommodation in the area of the second authority (for example in a shared lives scheme or a care home) and the person’s needs change, leading to them moving into another type of accommodation in the second authority’s area (for example a supported living scheme), the person would continue to be ordinarily resident in the area of the first authority, and that authority would remain responsible for the care and support. However, should the person no longer require the care and support to be provided in a specified type of accommodation, then it is likely that their ordinary residence will change, and the first local authority will no longer retain responsibility.

As part of the care and support planning process, where the local authority is arranging a person’s accommodation, they have a right to make a choice about their preferred accommodation (see Charging and Financial Assessment chapter and Annex A: Choice of Accommodation and Additional Payments). This right allows the adult to make a choice about a particular individual provider, including where that provider is located. Provided that certain conditions are met, the local authority must arrange for the preferred accommodation.

The ordinary residence rules described above will apply when the adult’s preferred accommodation is in the area of another local authority. The ordinary residence ‘deeming’ principle applies most commonly where the local authority provides or arranges care and support in the accommodation directly.

8.2 Direct payments

The principle also applies where the adult takes a direct payment and arranges their own care (since the local authority is still meeting their needs).

In such cases, the adult has choice over how their needs are met and arranges their own care and support. If the care and support plan stipulates that the adult’s needs can only be met if they are living in one of the specified types of accommodation and the adult chooses to arrange that accommodation in the area of a local authority which is not the one making the direct payments then the same principle applies; the local authority which is meeting the person’s care and support needs by making direct payments retains responsibility.

However, if the person chooses accommodation that is outside what was specified in the care and support plan or of a type of accommodation not specified in the regulations, then the ‘deeming’ principle does not apply.

If a local authority arranges care and support in a type of accommodation in another area or becomes aware that an adult receiving a direct payment has done so themselves, the authority should inform the host authority, to ensure the host authority is aware that the adult is living in their area. The first authority should ensure that satisfactory arrangements are made before the accommodation begins for any necessary support services which are provided locally, such as day care, and that clear agreements are in place for funding all aspects of the person’s care and support.

In practice, the first local authority may enter into agreements to allow the authority where the accommodation is located to carry out functions on its behalf. This may particularly be the case where the accommodation is located some distance away, and some functions can be performed more effectively locally. For example, a carer may live in a different authority from the person they are caring for. Local authorities may make arrangements to reimburse to each other for any costs which occurred through such agreements.

There may be occasions where a provider chooses to change the type of care which it provides, for instance to de-register a property as a care home and to redesign the service as a supported living scheme. Where the adult remains living at the same property, and their needs continue to be met by the new service, then ordinary residence should not be affected, and the duty to meet needs will remain with the first authority. This will occur even if the person temporarily moves to another address whilst any changes to the property occur.

9. NHS Accommodation

When an adult goes into hospital, or other NHS accommodation, there may be questions over where they are ordinarily resident, especially if they are subsequently discharged into a different local authority area. For this reason, the Care Act makes clear what should happen in these circumstances.

Section 39(5) applies to NHS accommodation. It ensures that an NHS stay i.e. accommodation (as defined in s 39(6)) in England, Scotland, Wales or Northern Ireland will not affect a person’s ordinary residence. This means that their care and support must continue to be provided by the local authority in whose area they were ordinarily resident before their admission to NHS accommodation.

An adult for whom NHS accommodation is provided is to be treated as being ordinarily resident in the local authority where they were ordinarily resident before the NHS accommodation was provided. This means that where an adult, for example, goes into hospital, they are treated as ordinarily resident in the area where they were living before, they went into hospital. This applies regardless of the length of stay in the hospital and means that responsibility for the adult’s care and support does not transfer to the area of the hospital, if this is different from the area in which the person was previously ordinarily resident.

Where a person who is ordinarily resident in England goes into hospital in Scotland, Wales or Northern Ireland, their ordinary residence will remain in England (in the local authority in which they ordinarily resided before going into hospital) for the purposes of responsibility for the adult’s care and support.

10. Mental Health Aftercare

See Section 117 Aftercare chapter

Under section 117 of the Mental Health Act 1983 (MHA), local authorities together with integrated care boards have a joint duty to arrange the provision of mental health aftercare services for people who have been detained in hospital for treatment under certain sections of the MHA. Aftercare services must have both the purposes of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’

In brief, aftercare services have a dual purpose, firstly to meet a need arising from or related to the person’s mental disorder; and secondly to reduce the risk of the person’s mental condition deteriorating. In so doing, this reduces the risk of the person being readmitted to a hospital for further treatment of a mental disorder.

The range of services which can be provided is broad. Under section 117, the duty on local authorities to commission or provide mental health aftercare rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the MHA, even if the person becomes ordinarily resident in another area after leaving hospital.

Section 75 of the Care Act 2014 amends section 117 of the MHA to provide that the local authority responsible for providing or commissioning aftercare services is the local authority in which the person was ordinarily resident immediately before they were detained.

Section 39(4) of the Care Act provides that an adult who is being provided with accommodation under section 117 of the MHA will be treated for the purposes of Part 1 of the Care Act 2014 as ordinarily resident in the area of the local authority in England or Wales which is under a duty to provide the adult with services under section 117 MHA.

By section 117A, the Secretary of State is empowered to make Regulations requiring a local authority to comply with a person’s preference for particular accommodation, with the person paying a top-up fee if the preferred accommodation is more than the authority’s usual cost. In discharging the s 117 duty, the local authority is permitted to provide the person with direct payments.

However, if the person is subsequently re-detained for treatment under the MHA, responsibility for the new aftercare services under section 117 will lie with the local authority in whose area the adult was ordinarily resident immediately before their most recent detention.

11. Other Common Situations

11.1 Temporary absences

If ordinary residence is established in a particular place, this should not be affected by the adult taking a temporary absence from the area. The courts have held that temporary or accidental absences, including for example holidays or hospital visits in another area, do not break the continuity of ordinary residence, and local authorities should take this into account.

The fact that the adult may be temporarily away from the local authority in which they are ordinarily resident, does not preclude them from receiving any type of care and support from another local authority if they become in urgent need (see Annex H: Ordinary Residence, Persons in Urgent Need). Local authorities have powers to meet the needs of people who are known to be ordinarily resident in another area, at their discretion, and subject to them informing the authority where the person is ordinarily resident.

Urgent needs are covered under Sections 19(3) and (4) of the Care Act which provide that a local authority may meet an adult’s needs for care and support which appear to be urgent (regardless of whether the adult is ordinarily resident in its area). A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill.

11.2 People with more than one home

Although in general terms it may be possible for a person to have more than one ordinary residence (for example, a person who divides their time equally between two homes), this is not possible for the purposes of the Care Act. The purpose of the ordinary residence test in the Care Act is to determine which single local authority has responsibility for meeting the adult’s eligible needs, and this purpose would be defeated if a person could have more than one ordinary residence.

If a person appears genuinely to divide their time equally between two homes, it is necessary to establish (from all the information available) to which of the two homes the person has the stronger link. Once this has been established, it is the responsibility of the local authority in whose area the person is ordinarily resident, to provide or arrange care and support to meet their needs during the times when they are temporarily away at their second home.

Further examples are set out in Annex H: Ordinary Residence, and used for references when there is  uncertainty around an adult’s ordinary residence.

11.3 People who arrange and fund their own care.

People who self-fund and arrange their own care (self-funders) may choose to move to another area and then find that their funds have depleted. Self-funders can apply to the local authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority (see Annex H Ordinary Residence, People who have Sufficient Funds to pay for their own Care and Accommodation).

The rule of thumb supported by the Care and Support Statutory Guidance is that self-funders who arrange their own care and who choose to move to another area for that care but find their funds depleted, are likely to take the ordinary residence in the new area which they voluntarily choose to move.

11.3.1 Self-funders and local authority arrangements

A person who seeks the help of the local authority under section 18(3) of the Care Act i.e. a person who has sufficient financial means to pay for their own care, but who has eligible needs, can ask the local authority to meet their needs (for example, where they lack the skill or confidence to arrange their own care). In such cases, where a person who pays for their own accommodation but the local authority has arranged it and provided a care and support plan, then the deeming provisions will apply. That person will keep the ordinary residence of the arranging local authority (see Annex H Ordinary Residence, People who have Sufficient Funds to pay for their own Care and Accommodation).

12. Resolving Ordinary Residence Disputes

In most cases, determining ordinary residence should be straightforward. However, there will be occasions where it is more complicated to establish the adult’s ordinary residence.

Please note: Where the local authorities concerned agree about a person’s ordinary residence, but the adult is unhappy with the decision, they would have to pursue this with the authorities concerned and cannot apply to the Secretary of State or an appointed person for a determination.

Where two or more local authorities are in dispute about an adult’s ordinary residence, they can apply for a determination to the Secretary of State or appointed person.

The Care and Support (Disputes Between Local Authorities) Regulations 2014 set out the procedures to be followed when disputes arise between local authorities regarding a person’s ordinary residence. When a dispute between two or more local authorities occurs, local authorities must take all reasonable steps to resolve the dispute between themselves.

It is critical that the adult does not go without the care they need, during any dispute.

The local authority that is meeting the needs of the adult or the carer on the date that the dispute arises, must continue to do so until the dispute is resolved.

If no local authority is currently meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved.

The local authority which has accepted provisional responsibility is referred to as the ‘the lead authority’.

The lead authority must identify all the authorities involved in the dispute and co-ordinate an ongoing discussion between all parties involved. The parties involved must provide the lead authority with contact details of a named person to contact regarding the dispute. The lead authority must be responsible for the co-ordination of any information that may be relevant to the dispute and keep all parties informed of any developments. The lead authority must also keep the adult, or their carer if appropriate, fully informed of dispute and progress regarding any resolution.

Applications for determinations by the Secretary of State or appointed person must be submitted by the lead authority before or by the end of a period of four months from the date when the dispute arose. The provisional acceptance of responsibility by the lead authority will not influence any determination made by the Secretary of State.

12.1 Process for seeking a determination

The regulations place a duty on the parties involved in the dispute to provide specified information to the Secretary of State or appointed person. The lead local authority must make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation. All previous correspondence between the local authorities must also be sent in when seeking a determination. The statement of facts must include certain specified information as set out in the regulations. Local authorities should, wherever possible, produce a statement of facts; that is jointly agreed. If the parties cannot agree on some of the information, the statement should make clear what information the parties agree on and what is in dispute. Local authorities should ensure that all documents sent to the Secretary of State or appointed person are in the required format.

Once the Secretary of State – or appointed person – is satisfied that the parties have had adequate opportunity to make representations, will make a determination. Any local authority failing to have due regard to a determination by the Secretary of State or appointed person, would be at risk of a legal challenge by the adult or their representative or the other local authorities to the dispute.

Local authorities should seek legal advice before making an application for a determination, although they are not required to do so. If legal advice is sought, local authorities may, in addition to the required documentation, provide a separate legal submission. Where legal submissions are included, these should be exchanged between the local authorities in dispute and evidence of this should be supplied to the Secretary of State.

If the local authorities involved in the dispute reach an agreement whilst the Secretary of State is considering the determination, they should notify the Department of Health and Social Care. Both parties must confirm that the dispute has been resolved after which the determination will be closed.

If a determination by the Secretary of State or an appointed person subsequently finds another local authority to be the authority responsible for funding of that person under the regulations and rules of ordinary residence the lead local authority may recover costs from the authority which should have been providing the relevant care and support.

The Department of Health and Social Care makes available anonymised copies of determinations it has made. Each case must be considered on its  own particular facts, but past determinations may provide local authorities with useful guidance when faced with similar circumstances.

12.2 Reconsidering a determination

If further facts come to light after a determination has been made, local authorities may consider it appropriate for the Secretary of State or appointed person to reconsider the original determination. As a consequence of this, a different determination may be substituted on account of any redetermination. This may mean that payments made from one local authority to another, as a consequence of the first determination will need to be repaid.

Any review of the determination must begin within three months of the date of the original determination. This is needed to ensure clarity and fairness in the process and minimise the amount of time taken for determinations to be made.

13. Financial Adjustments between Local Authorities

Sometimes a local authority will have been paying for a person’s care and support, but it later becomes apparent (for example as a result of an ordinary residence determination) that the person is in fact ordinarily resident elsewhere. In these circumstances, the local authority that has been paying for that person’s care may reclaim the costs from the local authority where the person was deemed to be ordinarily resident.

This can occur in cases where it is not clear initially where the person is ordinarily resident. To ensure that the adult does not experience any delay to their care due to uncertainty over their ordinary residence, local authorities should be able to recover any losses due to initial errors or delays in deciding where a person is ordinarily resident. This also extends to costs spent supporting the carer of the person whose ordinary residence was in dispute. It should be noted that only the costs of care can be recovered, not the local authority’s legal or social work costs.

14. Further Reading

Ordinary Residence Guide: Determining Local Authority Responsibilities under the Care Act and the Mental Health Act (LGA)

Further Reading

Relevant chapters

Independent Advocacy

Independent Mental Capacity Advocate Service

1. Introduction – What is Culturally Appropriate Care?

Culturally appropriate care (also called ‘culturally competent care’) is about understanding and being sensitive to people’s cultural identity or heritage, especially when arranging or providing care and support. It involves staff working in a person-centred way (see Personalisation chapter), to recognise, consider and respond sensitively to a person’s beliefs or conventions.

Cultural identity or heritage covers different things. For example, it might be based on a person’s ethnicity, nationality or religion, or it might be about their sexuality or gender identity. Lesbian, gay, bisexual and transgender people have their own cultures, as do Deaf people who use British Sign Language. However, it is important to note that people’s cultural identity or heritage may include a number of different cultures; they may identify with more than one.

In order to provide culturally appropriate care, staff must not provide standardised care – which involves giving the same service to everyone – instead they should always adapt their practice and interventions in line with the cultural values of the adult.

2. Why is Culturally Appropriate Care Important?

Care and support which reflects a person’s culture must be at the heart of person-centred care that is delivered by social care staff.

Providing culturally appropriate care will better meet people’s needs and is therefore more likely to achieve positive outcomes for adults and their families; their physical health and emotional wellbeing will also benefit.

When adults are not provided with care and support which is culturally appropriate, they can:

• feel marginalised and discriminated against;
• experience low self esteem and low self confidence;
• have restricted opportunities;
• feel stressed and anxious; and
• experience a loss of rights.

Providing care which recognises and responds to cultural differences also helps build better relationships between social care staff and the adult and their family.

3. Key Considerations in Providing Culturally Appropriate Care

Understanding and communicating well with people from different cultures is an important part of providing person-centred care (see Personalisation chapter).

Everyone is part of a culture, and sometimes a number of different cultures. People are more likely to receive the care and support they need, and experience positive outcomes if their culture is recognised and their cultural needs are met.

It is often easier for people’s cultural needs to be met if they are closer to cultural norms in an organisation, so staff should carefully consider the needs of those who are not so close to these cultural norms.

Providing culturally appropriate care does not require staff to be experts on different cultures, but it does need them to understand how culture can affect aspects of care, and to be open, respectful, and willing to learn.

4. Recognising Cultural Values

Cultural values are the core beliefs in a culture about what is good or right.

All cultures have values. They are informed by the cultures that each person most associates themselves with. These values are neither positive nor negative – they are just differences.

Cultural values can influence the way people treat each other and want others to treat them.

4.1 Differences between and within groups

While different groups can have different cultural values, there can also be differences within groups as well. Therefore, it is important not to make assumptions about people or stereotype them.

Cultural values are not just based on a person’s ethnic background. Other social contexts influence them too – for example profession, age, gender or faith.

4.2 Cultural values are not always visible

We are not always aware of a person’s cultural values. As a result, there may be bias or discrimination; this may be unconscious – when someone does not realise they are being biased or discriminatory.

It is not always easy to see our own cultural values because we take them for granted. But assumptions we may make can be based on them, and therefore can affect other people, especially those who have different cultural values.

4.3 Being sensitive to cultural values makes a difference

When staff are aware of their own cultural values and recognise other people’s, it can have a positive impact on:

• relationships between people using the service and the staff;
• whether people take part in activities;
• how likely it is that people will speak up if they are unhappy about something.

Staff should be aware of their own cultural values and how they might sometimes be different from other people’s. It can help them understand people better.

To ensure a good working relationship between staff and the people they are working with, they should:

• be curious about how people are feeling;
• ask people questions;
• listen without judgement;
• check their own thoughts – try to be aware of assumptions and judgements that could come from bias or stereotypes.

5. Providing Culturally Appropriate Care –Practice Guidance

There are many different aspects and variations in culture. Providing care should always be based on an assessment of a person’s individual needs.

5.1 Key points

Often, small changes make a big difference to people. The most important things for staff to do are:

• spend time getting to know adults and their families; ask questions especially if you are unsure;
• be curious about what is important to the person, to help them live their fullest lives; every person is different.;
• try to understand and meet people’s preferences, and remember adults are the experts in their own lives;
• do not make assumptions; and
• be aware of your own cultural values and beliefs (see Section 4, Recognising Cultural Values).

 5.2 Providing person centred care which is culturally appropriate

• Look at people’s needs as a whole, including their cultural needs, and protect them from discrimination.

• People, their families and carers should be involved in developing their care plans, and these should  incorporate culturally appropriate care. Again, look at people’s needs as a whole, including identifying their needs on the grounds of equality characteristics (see Equality, Diversity and Human Rights chapter, Section 4.2, Protected characteristics) and looking at how they are met. It also includes finding out about their choices and preferences.

• Staff must support people in culturally sensitive ways. They should recognise when people’s preferences are not being taken on board or properly respected and take action accordingly, by raising it with managers for example.

• When carrying out strengths-based assessments, and developing and reviewing care and support plans, staff should support people to take part in activities that are culturally relevant to them, if they wish to do so.

• Cultural considerations may impact on a person’s decision to take medicines. Such issues should be recorded, and action taken as required.

• Cultural, ethical and religious needs should be taken into account when considering or discussing with diet and drinks. Cultural needs should also be reflected in how premises are decorated, for example.
• If someone lacks capacity for a particular decision, their cultural preferences should be taken into account when applying the Mental Capacity Act – for example, by consulting with people that know them and understand their cultural values, if the person is not able to fully respond.
• Staff should also ensure any cultural needs are also considered when working with carers and family members of an adult with care and support needs.

• In end of life care, people – and their families – should feel their cultural needs have been considered and provided for, as part of the planning process. Their religious beliefs and preferences must be respected.

5.3 Across the local authority

• Leaders, managers and staff should encourage people and their families, with whom they are working, to express their views and any concerns they may have. They should listen and act on such feedback to help shape the service and culture (see also Coproduction chapter).
• Staff should actively promote equality and diversity within the service in which they work.
• Staff should have access to training and learning and development opportunities to help them understand and meet people’s cultural needs. This should be considered as part of supervision and personal development appraisals.
• Staff should also feel that they are treated equally. The local authority should make sure it hears the voices of all staff and acts on them to help shape the service and culture (see Staff Engagement chapter).

See also Examples of culturally appropriate care – Care Quality Commission for more detailed examples of ways care can be adapted to reflect cultural differences around:

• religious or spiritual practice, including planning care and support around religious festivals;
• food and drink;
• healthcare;
• clothes and personal presentation;
• personal and shared space;
• shared activities;
• relationships and community connections.

6. Further Reading

6.1 Relevant chapters

Personalisation

Equality, Diversity and Human Rights

6.2 Relevant information

Culturally Appropriate Care (Care Quality Commission)

Anti-Racism Resources (BASW England) 

People’s Experience in Adult Social Care Services: Improving the Experience of Care and Support for People using Adult Social Care Services (NICE) 

1. Introduction

NHS Continuing Healthcare (CHC) is care arranged and funded by the NHS and provided to adults who have been assessed as having a ‘primary health need’ (see Section 2.3, Eligibility). It is free of charge, unlike care from adult social care for which there may be a charge depending on the adult’s income and savings (see Charging and Financial Assessment chapter).

It can be provided in any setting, including a care home, nursing home, hospice or the home of the adult with the healthcare needs. It will cover their care home fees (including board and accommodation), personal care (help with bathing, dressing and laundry for example) and healthcare costs (community nursing or specialist therapy services for example).

For adults living at home, it will cover their personal care and healthcare costs.

Support for carers may also be available – see NHS Continuing Care: Information for Adults and Carers.

There is a difference between NHS CHC and NHS-funded Nursing Care; NHS-funded Nursing Care is the funding provided by the NHS to those who are eligible and living in care homes with nursing, to support the provision of nursing care by a registered nurse.

The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (Department of Health and Social Care)  was revised in July 2022. It includes Practice Guidance to support staff delivering NHS CHC.

This chapter is a summary of key information in the Framework.

2. Key Concepts in NHS Continuing Healthcare

2.1 Primary health need

To assist in deciding which – if any- health services it is appropriate for the NHS to provide to someone, the term ‘primary health need’ is used. Where an adult has been assessed to have a primary health need, they are eligible for NHS CHC and the NHS will be responsible for providing for all of their assessed health and associated social care needs, including accommodation – if that is part of their overall need. Deciding whether an adult has a primary health need involves looking at all of their relevant needs; to do so they must be assessed by a multidisciplinary team (MDT) using the Decision Support Tool (DST), see Section 7, Decision Support Tool.

An adult is said to have a primary health need if, having completed the DST, it can be said that most of the care they require is focused on addressing and / or preventing health needs. Having a primary health need is not about why someone needs care or support, nor is it based on their diagnosis; it is about the level and type of their overall actual day-to-day care needs taken as a whole.

Each adult’s case has to be considered on its own facts, in line with the principles outlined in the National Framework.

There should be no gap in the provision of care. People should not find themselves in a situation where neither the NHS nor the relevant local authority will fund care, either separately or together.

The requirement for a primary health need means that ineligibility for NHS CHC is only possible where, taken as a whole, the nursing or other health services the person requires:

• are no more than incidental or ancillary to the provision of accommodation which local authority social services are under a duty to provide (depending on the adult’s circumstances); and
• are not of a type beyond which a local authority could be expected to provide.

In applying the primary health need test, Integrated Care Boards (ICBs) should take into account that section 22 of the Care Act 2014, applies the ‘incidental and ancillary’ test in all situations, including where care is being provided in the adult’s own home. As there should be no gap in the provision of care, ICBs should consider this test when determining eligibility. Eligibility is the same for all individuals, whether their needs are being met in their own home or in care home accommodation.

Please note: ICBs replaced Clinical Commissioning Groups on 1 July 2022.

2.2 Characteristics of need

Certain characteristics of need – and their impact on the care required to manage them – may help determine whether the ‘quality’ or ‘quantity’ of care required is more than the limits of a local authority’s responsibilities, as set out in the Care Act 2014:

• nature: this describes the particular characteristics of an adult’s needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the adult, including the type (‘quality’) of interventions required to manage them;
• intensity: this relates both to the extent (‘quantity’) and severity (‘degree’) of the needs and to the support required to meet them, including the need for sustained / ongoing care (‘continuity’);
• complexity: this is concerned with how the adult’s needs present and interact to increase the skill required to monitor the symptoms, treat the condition/s) and / or manage their care. This may arise with a single condition, or multiple conditions or the interaction between two or more conditions. It may also include situations where an adult’s response to their own condition has an impact on their overall needs, for example where a physical health need results in the adult developing a mental health need.
• unpredictability: this describes the degree to which an adult’s needs fluctuate, which can create challenges in managing them. It also relates to the level of risk to the adult’s health if adequate and timely care is not provided. An adult with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition.

Each of these characteristics may, alone or together, show the adult has a primary health need, because of the quality and / or quantity of care that is required to meet their needs. All of their overall needs and the effects of the interaction of their needs should be carefully considered when completing the DST.

Practice Guidance note 3 in the National Framework contains examples of questions which the multidisciplinary team can use to develop an understanding of how each characteristic relates to the needs of the adult being assessed.

2.3 Eligibility

Eligibility for NHS CHC is a decision taken by the local ICB, based on an assessment of the adult’s needs, which is undertaken by the multidisciplinary team (MDT) using the Decision Support Tool. The diagnosis of a particular disease or condition is not in itself a deciding factor of eligibility for NHS CHC. As noted above, NHS CHC may be provided in any setting (including for example a care home, hospice or the adult’s own home). Eligibility is, therefore, not decided or influenced either by the setting where the care is provided or by the characteristics of the adult who delivers the care. When making a decision whether someone is eligible for CHC, a need should not be dismissed just because it is successfully managed: well-managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need will this have an impact on the adult’s eligibility for NHS CHC.

Financial issues should not be considered as part of the decision on an adult’s eligibility for NHS CHC.

In summary, the reasons given for a decision on an adult’s eligibility should not be based on the:

• adult’s diagnosis;
• setting of care;
• ability of the care provider to manage care;
• whether or not NHS-employed staff provide care;
• need for ‘specialist staff ’ in care delivery;
• the fact that a need is well-managed;
• the existence of other NHS-funded care; or
• any other input-related (rather than needs-related) rationale.

Eligibility for NHS CHC is not indefinite, as needs could change. This should be made clear to the individual and / or their representatives.

Not all those with a disability or long term health condition will be eligible.

A decision about whether or not an adult is eligible should usually be made within 28 days of completion of the assessment.

2.4 Options for people who are not eligible

If the adult is not eligible for NHS CHC funding, the local authority maybe responsible for assessing their care and support needs and providing services if they are eligible.

If the adult is not eligible for NHS CHC but is assessed as having healthcare or nursing needs, they may still receive some care from the NHS. For an adult who lives in their own home, this may be provided as part of a joint package of care and support, where some services come from the NHS and some from adult social care services (see the chapters on Integration, Cooperation and Partnerships, Eligibility and Charging and Financial Assessment).

If the adult moves into a nursing home, the NHS may contribute towards their nursing care costs.

Once eligible for NHS CHC, care will be funded by the NHS, but this is subject to review; should care needs change, the funding arrangements may also change.

3. Information for Adult Social Care Staff

The National Framework sets out the principles and processes which should be applied in order to assess an adult’s eligibility for NHS continuing healthcare and NHS funded nursing care.

Joint working between NHS and adult social care, and any other partner organisation/s who are involved, is essential to ensure the adult’s needs are met in the right way and that their care is effectively coordinated. The National Framework sets out the local authority responsibilities in relation to NHS continuing healthcare.

In order to understand and be able to implement CHC procedures, staff should:

• familiarise themselves with the National Framework for NHS Continuing Healthcare documentation;
• understand the definition of ‘primary health need’;
• be familiar with the Decision Support Tool;
• be able to apply the four key characteristics of need (see Section 2.2, Characteristics of need);

as well as the primary health need test to the adult’s assessed needs (see National Framework p.60).

If adult social care staff consider that an adult may be eligible for NHS CHC, they must follow their local processes in order to refer the adult to the ICB.

Where at all possible, the same staff member should be involved with the adult and their carers throughout the continuing healthcare assessment process.

4. Consent

See also: Full Consent Form for Participating in the NHS Continuing Healthcare Process and for Information Sharing with Family / Friends / Advocates (opens in Word) and Data Protection: Legislation and Guidance chapter.

There are a number of principles which underpin this process. Most importantly is that assessments and reviews should always focus on the adult’s individual needs and follow a person-centred approach. The adult should be fully informed and empowered to participate actively in the assessment process and any subsequent reviews, and their views should always be considered. There are also a number of legal requirements when it comes to obtaining an adult’s consent for parts of the NHS CHC process.

Before completing the Checklist and the Decision Support Tool (DST) (see below), consent must be obtained and recorded. Consent is sought for:

• completion of the DST;
• sharing of the adult’s personal information between different organisations involved in their care, and the continuing healthcare assessment and decision making process.

5. Mental Capacity

If there is a concern that the adult may not have mental capacity to give consent to taking part in the continuing healthcare process, this should be decided in line with the Mental Capacity Act 2005 and Code of Practice (see Mental Capacity chapter). A third party can give consent for an assessment of eligibility for NHS CHC on behalf of an adult who lacks capacity, if they can demonstrate they have a valid Lasting Power of Attorney for Welfare or that they have been appointed a Welfare Deputy by the Court of Protection.

If the adult lacks the relevant capacity to either give or refuse consent to a physical intervention / examination, care and treatment as part of continuing healthcare, a ‘best interests’ decision should first be made and recorded (see Best Interests chapter).

ICBs and local authorities should ensure that all staff involved in NHS CHC assessments are appropriately trained in Mental Capacity Act 2005 principles and responsibilities.

6. Checklist Tool

See NHS Continuing Healthcare Checklist

The Checklist is the NHS CHC screening tool which can be used in a variety of settings to help practitioners identify individuals who may need a full assessment of eligibility for NHS CHC.

The regulations state that if an initial screening process is used to identify where someone may have a need for CHC, the Checklist is the only screening tool that can be used for this purpose. The purpose of the Checklist is to encourage proportionate assessments of eligibility so that resources are directed towards those people who are most likely to be eligible for NHS CHC, and to ensure that a rationale is provided for all decisions regarding eligibility.

The Checklist can be completed by a variety of health and social care practitioners, who have been trained to use it. This could include local authority staff such as social workers, care managers or social care assistants.

Completion of the Checklist should be quite quick and straightforward. It is not necessary to provide detailed evidence along with the completed Checklist.

There are two potential outcomes following completion of the Checklist:

• a negative Checklist, meaning the adult does not require a full assessment of eligibility, and they are not eligible for NHS CHC; or
• a positive Checklist meaning an adult now requires a full assessment of eligibility for NHS CHC. However, that does not necessarily mean they will be eligible for NHS CHC.

7. Decision Support Tool

See NHS Continuing Health Care Decision Support Tool

Once an adult has been referred for a full assessment of eligibility for NHS CHC – after the Checklist has been completed or if it was not used in an individual case –a multidisciplinary team (MDT) must assess whether the adult has a primary health need using the Decision Support Tool (DST).

The DST is used to inform the decision as to whether an adult is eligible for NHS CHC. It is not an assessment in itself; the information gathered will need to be supplemented with professional analysis and conclusion. It is designed to assist data collection, analysis and presentation of information of the adult’s healthcare needs, including evidence from assessments and reports completed by other members of the MDT.

8. Multidisciplinary Working

See The Multidisciplinary Team (MDT), National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 

The core purpose of the MDT is to make a recommendation on eligibility for NHS CHC drawing on the multidisciplinary assessment of needs and following the processes set out in the National Framework.

An MDT in this context means a team consisting of at least:

• two professionals who are from different healthcare professions, or
• one professional who is from a healthcare profession and one adult who is responsible for assessing people who may have needs for care and support under the Care Act 2014.

The MDT should usually include both health and social care professionals, who are knowledgeable about the adult’s health and social care needs and, where possible, have recently been involved in their assessment, treatment or care.

As far as is reasonably practicable, the ICB must consult with the local authority before making any decision about the adult’s eligibility for NHS CHC. Different approaches can be used (for example face-to-face, video / tele conferencing) for arranging an MDT assessment, to ensure active participation of all MDT members, the adult and their representative, and any others with knowledge about the person’s health and social care needs as far as is possible.

It is best practice for assessors to meet with the person being assessed, ideally before the MDT meeting. All arrangements should take a person-centred approach.

If an adult with mental capacity refuses to participate in the assessment process, the MDT may consider relevant health and care records or existing assessments to decide the best way to meet their needs and whether they are eligible for NHS CHC. The consequences of undertaking the NHS Continuing Healthcare assessment or review as a paper-based exercise should be carefully explained to the adult, including that this may affect the quality of the assessment, if information is not up to date for example.

Both the MDT recommendation and the decision should be recorded in the adult’s case records. The NHS CHC process should usually be completed within 28 calendar days. This timescale is measured from the date the ICB receives the completed Checklist, indicating the need for full consideration of eligibility (or receives a referral for full consideration in some other acceptable format), to the date that the eligibility decision is made. However, wherever practicable, the process should be completed in a shorter time than this.

9. Decision-making by the ICB

See Decision-making on eligibility for NHS Continuing Healthcare by the ICB, National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

ICBs are responsible for eligibility decision making, based on the recommendation made by the MDT. Only in exceptional circumstances, and for clearly stated reasons, should the MDT’s recommendation not be followed.

ICBs should ensure consistency and quality of decision making.

The ICB may ask an MDT to carry out further work on a DST if it is not completed fully or if there is a significant lack of consistency between the evidence recorded in the DST and the recommendation made.

10. Care Planning and Delivery

See Care planning and delivery, National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

Where an adult is eligible for NHS Continuing Healthcare, the ICB is responsible for care planning, commissioning services, and for case management. It is also responsible for their case management, including monitoring the care they receive and arranging regular reviews.

The adult should be encouraged to have an active role in their care, be provided with information or signposting to enable informed choices and supported to make their own decisions.

ICBs may wish to commission NHS-funded care from a wide range of providers, in order to secure high-quality services that meet the adult’s assessed needs and offer value for money.

11. NHS CHC Three and 12 Month Reviews

See NHS Continuing Healthcare Reviews (at three and 12 months), National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

Where an adult has started receiving NHS CHC, a review should be undertaken within three months of the decision being made. After this, further reviews should be undertaken on at least an annual basis, although some adults will require more frequent reviews in line with clinical judgement and changing needs.

These reviews should mostly focus on whether the care plan or arrangements remain appropriate to meet the adult’s needs. It is expected that in most cases there will be no need to reassess for eligibility.

12. Equipment

See Equipment, National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

Where an adult is eligible for NHS CHC and chooses to live in their own home, the ICB is financially responsible for meeting all their assessed health and associated social care needs. This could include:

• equipment provision;
• routine and incontinence laundry;
• daily domestic tasks such as food preparation, shopping, washing up, bed-making; and
• support to access community facilities (including additional support needs for the adult while their carer has a break.

However, the NHS is not responsible for paying for rent, food and normal utility bills such as gas, electricity and water.

13. Disputes

There are two types of disputes that may arise in relation to NHS CHC:

1. challenges by the adult or their carer / advocate, including requests for reviews (also known as appeals). Staff may be involved in the appeal process, including undertaking an assessment / review of the adult’s needs and attending MDT / DST meetings;
2. disputes between NHS and local authorities. In such cases staff should provide a clear rationale for disputing the outcome.

See Individual Requests for a Review of an Eligibility Decision and Inter-agency disputes, National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care for information about processes for resolving these situations including ordinary residence issues (see Ordinary Residence chapter).

14. Further Reading

 14.1 Relevant information

National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (Department of Health and Social Care)

NHS Continuing Healthcare Decision Support Tool

NHS Continuing Healthcare Checklist

NHS-Funded Nursing Care Practice Guidance

NHS Continuing Healthcare Fast-Track Pathway Tool

Full Consent Form for Participating in the NHS Continuing Healthcare Process and for Information Sharing with Family / Friends / Advocates (opens in Word)

See also:

NHS Continuing Healthcare (NHS) 

NHS Continuing Healthcare (AgeUK) 

Appendix 1: Flow Diagram which sets out the Process for NHS Continuing Healthcare

Appendix 1: Flow diagram CHC Process

1. Introduction

Falling, or worrying about falling, can be a great concern and anxiety for those who are getting older or who have illnesses or disabilities which may make them more vulnerable to falls.

Many people may not worry about having a fall until it actually happens. Straight after the fall, the main concerns will probably be about the physical impact and whether they need to see a doctor, go the the Accident and Emergency Department or even be admitted to hospital.

But, after the physical effects have faded, a fall can affect someone’s confidence, self-esteem and impact on the activities they enjoy, particularly if they are frightened it might happen again. A fall does not have to result in broken bones or bad bruising to seriously impact on a person’s mental well-being; even trips and small falls can have a significant effect.

As well as the physical and psychological effects of a fall for adults and their families, there is also an impact on health and social care services. For example, a person may need to be admitted to hospital for an operation to repair a broken hip or other significant injuries; a referral for home care services may be needed for support at home, or they may not be able to return home and need to move to permanent residential or nursing care. As well as the psychological impact on the adult and their family and friends, this puts additional pressure on hospital beds (particularly in relation to delayed discharge), hospital and social care staff and domiciliary and residential care services.

For a number of reasons therefore, reducing the possibility of someone having a fall is vital. This chapter outlines some of the main issues to consider in relation to falls, and summaries actions that can be taken to reduce the likelihood of a person having a fall. Issues raised in relation to preventing falls may be considered as part of a strengths based assessment.

2. Preventing Falls

There are a number of ways that people can reduce their risk of having a fall. These can be divided into actions for their person and also to their environment.

2.1 Actions for the person

2.1.1 Contacting the GP

The adult should discuss any falls they have had with their GP, and let them know if it had any impact on their physical and mental health or wellbeing.

The GP can carry out some easy balance tests, to see if they are likely to have another fall in the future. They can also refer them to appropriate services in the local area. They may also need to review any medication the adult is taking, as the side effects of some prescription drugs may increase the risk of someone having a fall; for example by making them feel dizzy.

2.1.2 Doing strength and balance exercises

Doing regular exercise can improve a person’s strength and balance and in turn reduce their risk of having a fall. These can be:

• simple exercises such as walking or dancing;
• community centres and local gyms often offer training programmes specifically designed for older people;
• exercises that can be carried out at home;
• tai chi can reduce the risk of falls. This is a Chinese martial art that focuses on movement, balance and coordination. It does not involve physical contact or rapid physical movements, so is a good exercise for older people.

See also Physical Activity Guidelines for Older Adults (NHS)

When someone had a fall, strength and balance training programmes should be personalised for that individual person, and monitored by an appropriately trained professional. In such circumstances, a GP should be consulted, and they will make a referral to other services and professionals as appropriate.

2.1.3 Eye tests

Eyesight changes as people get older and can lead to a trip or loss of balance. People should make sure they have eye tests at least every two years, and wear the right glasses for them, as problems with vision can increase the risk of having a fall. They should also get a test if they think their vision has got worse, even if this is before two years.

Not all vision problems can be cured, but some can be treated with surgery, for example cataracts can be removed which will improve a person’s sight.

See also Look after your eyes (RNIB) 

2.1.4 Hearing tests

Hearing also changes as people get older. Adults should get a hearing test if they think their hearing has got worse. They should also talk to their doctor, as ear problems can affect balance. It may be something which is easily treated, such as a build up of ear wax or an ear infection, or they may need a hearing aid.

See also Hearing Loss (NHS)

2.1.5 Alcohol and drugs, including prescription drugs

Drinking alcohol or taking drugs – including some prescription drugs – can lead to a loss of co-ordination. Alcohol can also make the effects of some medicines worse. This can significantly increase the risk of falls.

Avoiding alcohol or illegal drugs or reducing the amount of alcohol a person drinks can reduce their risk of having a fall. People should see their GP if they think their dizziness or lack of coordination may be related to prescription medication.

See also:

Alcohol Misuse (NHS)

Drug Addiction: Getting Help (NHS)

2.1.6 Footcare

People should take care of their feet by trimming toenails regularly, and seeing a GP or podiatrist (footcare professional) about any foot problems. If someone has foot pain it may cause them to walk differently, or limp which may affect balance. Wearing well fitting shoes and slippers that are in good condition and support the ankle can also reduce the risk of having a fall:

• footwear should fit well and not slip off;
• sandals with little support and high heels should be avoided;
• slippers should have a good grip and stay on properly;
• people should always wear shoes or slippers and not walk in bare feet, socks or tights.

2.1.7 Eating well

Having food that is nutritious, as well as tasty, helps people stay well. If people do not have a good appetite, it is better to eat little and often instead of three main meals, if they prefer. Having enough energy is important in keeping up strength and preventing falls.

See also Eat Well (NHS)

2.1.8 Drinking fluids

In addition to eating well, people should make sure they drink plenty. Not having enough fluids may result in someone feeling light-headed, which may increase their risk of a fall. People should drink about six to eight glasses of fluid (non alcoholic) a day.

2.1.9 Bone health

Bones can become weaker as people get older, and weak bones are more likely to break if a person falls. Bones can be kept healthier and stronger by eating food rich in calcium, getting enough vitamin D from sunlight and doing some weight bearing exercises as mentioned above.

2.2 Environment issues

2.2.1 Avoiding falls at home

Tips for preventing falls in the home include:

• wiping up anything that has been spilt on the floor;
• removing clutter, trailing wires and repairing or replacing frayed carpet;
• using non slip mats and rugs;
• making sure all rooms, passages and stairs are well lit, especially when it is dark. A night light near the bed so people can see where they are going if they wake up in the night – including motion-activated lights that come on as needed – are useful;
• organising the home so that climbing, stretching and bending are kept to a minimum, and making sure that drawers and cupboards are closed immediately after use so they are not bumped into;
• the adult getting help from other people to do things they cannot safely do themselves;
• not wearing loose fitting, trailing clothes that might catch on door handles or trip the person up.

Mobile phones or alarms should always be carried, even around the house.

Personal alarms and telecare allow people to call for help if they are unwell or have a fall and cannot reach the phone. People can wear a button on a pendant or wristband at all times, or have other technology aids which will alert a 24 hour response centre. The staff at the response centre will contact friends or family on the adult’s pre-decided list of contacts or contact the emergency services.

See also Tips on Adapting Your Home as You get Older (Age UK)

2.2.2 Avoiding a fall outside

Falls do not just happen in the home, they can also occur in the garden, in the street and on outings, particularly if places are not familiar. The following should be considered to reduce risk:

• if people are wearing a mask or face covering, they should be extra careful about moving around, as these can make it harder to see.  They may need to slow down to reduce the risk of falling;
• people should use a walking stick, walking frame or walk with others for support if this helps them feel more confident;
• walking on uneven ground in gardens may make some people more vulnerable to losing their balance, as can reaching and stretching to do gardening jobs. Mobile phones should always be carried, especially in the garden;
• walking dogs who may pull, even if they are small dogs, can cause people to lose their balance, as can dogs who jump up;
• take extra care in icy, snowy and wet weather – wet leaves and mud can also be very slippery. See also What to do when the Weather is Particularly Bad (Age UK)

1. Introduction

This chapter is a summary of the main parts of the Domestic Abuse Act 2021. For further information please see the Domestic Abuse Statutory Guidance (Home Office).  

2. Definitions

2.1 Domestic abuse

The Domestic Abuse Act provides a definition of domestic abuse.

It is the behaviour of one person towards another where:

a) both people are aged 16 or over and are personally connected to each other (see Section 2.2, Personally connected); and

b) the behaviour is abusive.

Behaviour is defined as abusive if it consists of any of the following:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse;
• psychological, emotional or other abuse.

It does not make any difference whether the behaviour is a single incident or consists of a number of incidents over a period of time.

Economic abuse is any behaviour by a person that has a negative impact on the other person’s ability to:

• obtain, use or maintain money or other property (such as a mobile phone or car. This would also include pets);
• buy goods or services (for example utilities such as heating, food or clothing).

Under the Act, abusive behaviour towards a child who is under the age of 16 is considered child abuse, not domestic abuse (see Knowsley Safeguarding Children Partnership Procedures). Children are also recognised as victims of domestic abuse if they see, hear, or experience the effects of the abuse, and are related to the victim and / or perpetrator of the domestic abuse, or if the victim and / or perpetrator have parental responsibility.

Domestic abuse also includes so called ‘honour’ based abuse (see So Called Honour Based Abuse and Forced Marriage, the Crown Prosecution Service , forced marriage (see Forced Marriage, gov.uk) and female genital mutilation (see Female Genital Mutilation, gov.uk).

2.2 Personally connected

The Act introduced the term ‘personally connected’. This applies to people who:

• are married to each other;
• are civil partners;
• have agreed to marry one another or have a civil partnership (whether or not they are still planning to);
• are or have been in an intimate personal relationship with each other;
• have, or have had, a parental relationship in relation to the same child;
• are relatives.

2.3 Controlling or coercive behaviour

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

Controlling behaviour is a range of acts designed to make a person subordinate and / or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

Both coercive and controlling behaviour can apply to people who are no longer in a relationship, but who were previously.

3. Victims and Perpetrators of Domestic Abuse

The majority of domestic abuse is committed by men against women, however victims do not come solely from one gender or ethnic group. Men are abused by female partners, abuse occurs in same sex relationships, can be committed by young people against other family members or their own partners (teenage domestic abuse is the most common), as well as abuse of older relatives or those with physical or learning disabilities. Domestic abuse occurs irrespective of social class, racial, ethnic, cultural, religious or sexual relationships or identity.

4. Working with People where there are Concerns of Domestic Abuse

On average, victims live with abuse for between 2 to 3 years before seeking help, and will experience 50 incidents of abuse before they receive effective help (see Safelives).

Social work interventions with adults who are experiencing, or at risk of, domestic abuse should seek to:

• support victims to get protection from violence by providing relevant practical and other assistance;
• identify those who are responsible for perpetrating such abuse, so that there can be an appropriate criminal justice response;
• provide victims with full information about their legal rights, and about the extent and limits of statutory duties and powers;
• support non-abusing parents in making safe choices for themselves and their children, where appropriate.

Professionals from any agency may receive a disclosure from a victim or perpetrator about domestic abuse, or have concerns that such behaviour may be taking place. All staff working with adults and families should be familiar with signs of domestic abuse, and know how to respond.

Concerns about domestic abuse may also be reported by a member of the extended family, friend or neighbour for example. Such information must be responded to in accordance with the Knowsley Safeguarding Adults Board Procedures.

Social workers in contact with adults who are threatening or abusive to them as professionals should be aware of the potential for that individual to be also abusive in their personal relationships. They should, therefore, assess whether domestic abuse may be occurring within the family environment.

4.1 Carrying out assessments

See also SafeLives: Resources for identifying the risk victims face, including the Domestic Abuse, Stalking and Harassment (DASH) checklist.

When carrying out any assessments, social workers should consider seeing the adult on their own so they can ask whether they are experiencing, or have previously experienced, domestic abuse. This may include asking direct questions about domestic abuse and asking whether domestic abuse has occurred whenever adult abuse is suspected. This should be considered at all stages of assessment, enquiries and intervention.

When assessing domestic abuse and the needs of the adult living with domestic abuse, the following factors should be considered:

• age and vulnerability of the adult;
• the adult’s description of the effects of the abuse upon them;
• frequency and severity of the abuse, how recent and where it took place
  whether there were any children or other adults who either witnessed the abuse or was in the property at the time;
• any weapons used or threatened to be used;
• whether the adult victim has been locked in the house or prevented from leaving;
• has there been any actual or threatened abuse of animals.

The social worker should decide, based on the assessment and their professional judgement, whether there is a threat to the safety of the adult or anyone else in the home environment.

If the threat is imminent, the police should be contacted immediately, by telephoning 999. If the threat is not imminent, the professional should raise a safeguarding enquiry (see Safeguarding Procedures for Responding in Individual Cases chapter).

The police are often the first point of contact for adults experiencing domestic abuse. However, the ambulance service and hospital Accident and Emergency Departments may also often be involved as a first point of contact.

Social workers should ensure that they make a full record of all discussions, including with whom they take place and any actions taken, including referrals to other agencies (see Case Recording Standards and Information Sharing chapter).

Under the Domestic Abuse Act the local authority has a duty to provide support to victims of domestic abuse and their children in refuges and other safe accommodation. In addition, all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance (see Homelessness chapter).

5. Domestic Violence Disclosure Scheme

See also Domestic Violence Disclosure Scheme Factsheet (gov.uk)

The Domestic Violence Disclosure Scheme (also known as Clare’s Law) is made up of two elements: the Right to Ask and the Right to Know.

Under the Right to Ask, a person or relevant third party (for example, a family member) can ask the police to check whether a current or ex-partner has a violent or abusive past. If records show that an individual may be at risk of domestic abuse from a partner or ex-partner, the police will consider disclosing the information.

Right to Know enables the police to make a disclosure on their own initiative if they receive information about the violent or abusive behaviour of a person that may impact on the safety of that person’s current or ex-partner. This could be information arising from a criminal investigation, through statutory or third sector agency involvement, or from another source of police intelligence.

6. Professional Safety

It is important to assess any potential risks to social care staff, carers or other staff who are providing services to a family where domestic abuse is or has occurred. In such cases a risk assessment should be undertaken. Social care staff should speak with their manager and follow the local guidance for staff safety. Such issues should also be discussed during supervision (see Supervision chapter).

7. Further Reading

7.1 Relevant chapters

Safeguarding Procedures for Responding in Individual Cases

7.2 Relevant information

Domestic Abuse Statutory Guidance (Home Office)  

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

Domestic Abuse – How to Get Help (Home Office)

Safelives

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

1. Introduction

This chapter outlines the main points of the Equality Act 2010, and also how it relates to working with people with care and support needs, including safeguarding adults. The Act ensures there is consistency in what a local authority does to provide services in a fair environment and comply with the law. This includes all the people who use its services, their family and friends and other members of the public, staff, volunteers and partner agency staff.

2. Equality Act 2010

The Equality Act references ‘protected characteristics: all of which must be considered when implementing safeguarding procedures (see also Section 4.2, Protected characteristics). The Act covers both direct and indirect discrimination against people with these characteristics. These are:

• age;
• disability;
• gender reassignment;
• race;
• religion or belief;
• sex;
• sexual orientation;
• marriage and civil partnership;
• pregnancy and maternity.

A local authority’s commitment to equality and diversity means that every person supported by it has their individual needs comprehensively addressed. They will be treated equally and without discrimination. This is regardless of any protected characteristics or another aspect that could result in them being discriminated against. The local authority is also committed to protecting individuals’ human rights. Failure to make reasonable adjustments in the care of a certain group with a protected characteristic (for example, a learning disability) may violate the Equality Act. It should have a process by which it considers how to promote equality.

3. Commitment to Equality, Diversity and Human Rights

The local authority should express its commitment to equality and diversity by:

• respecting the ethnic, cultural and religious practices of people who use its services and making practical provision for them to be observed as appropriate;
• reassuring people who use its services that their diverse backgrounds enhance the quality of experience of everyone who lives and works in any service provided by it;
• protecting people’s human rights – treating them and their family and friends, fairly and with respect and dignity;
• accepting adults who use its services as individuals;
• supporting people to express their individuality and to follow their preferred lifestyle, also helping them to celebrate events, anniversaries or festivals which are important to them;
• showing positive leadership and having management and human resources practices that actively demonstrate a commitment to the principles of equality and diversity;
• developing an ethos throughout its services that reflects these values and principles;
• expecting all staff to work to equality and diversity principles and policies and to behave at all times in non-discriminatory ways;
• provide training, supervision and support to enable staff to do this;
• having a code of conduct that makes any form of discriminatory behaviour unacceptable. This applies to both staff, people who use services and their family and friends, which is rigorously observed and monitored accordingly.

3.1 Human Rights

See also Appendix 1: Human Rights Legislation

‘Respecting diversity, promoting equality and ensuring human rights will help to ensure that everyone using health and social care services receives safe and good quality care.’ (Care Quality Commission)

The Care Quality Commission employs the commonly agreed ‘human rights principles’ in their inspection frameworks. These are sometimes called the FREDA principles:

• fairness;
• respect;
• equality;
• dignity; and
• autonomy (choice and control).

These principles and standards should be at the heart of planning and delivery of care and in any required safeguarding processes involving adults with care and support needs and their family and friends. The local authority should also encourage and support its staff to develop knowledge and skills and, where relevant, provide organisational leadership and commitment to achieve human rights based approaches.

The local authority should encourage positive practice and a learning culture that promotes human rights. Staff must take swift action if they think someone’s human rights are being breached and speak to their line manager or designated adult safeguarding lead.

4. Guidance

4.1 Types of discrimination

All staff involved in the safeguarding process should be familiar with the following types of discrimination.

• Direct discrimination occurs when a person is treated less favourably than others in similar circumstances on the grounds of race, colour, national or ethnic origins, sex, marital status, sexuality, disability, membership or non-membership of trade union, ‘spent convictions’ of ex-offenders, class, age, political or religious belief.
• Discrimination by association applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic (see Section 4.2, Protected characteristics below).
• Perception discrimination is against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
• Indirect discrimination occurs when a condition or requirement is imposed which adversely affects one particular group considerably more than another.
• Harassment is defined as unwanted, unreciprocated and / or uninvited comments, looks, actions, suggestions or physical contact that is found objectionable and offensive. Harassment is particularly liable to occur as part of sexual or racial discrimination.
• Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act, or because they are suspected of doing so. People are not protected from victimisation if they have maliciously made or supported an untrue complaint.

4.2 Protected characteristics

Under the Equality Act 2010 these are as follows.

• Age: Where this is referred to, it refers to a person belonging to a particular age (for example 32 year olds) or range of ages (for example 18 – 30 year olds).
• Disability: Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The Act includes a protection from discrimination arising from disability. This states it is discrimination to treat a disabled person unfavourably because of something connected with their disability.
• Gender reassignment: A transgender person is someone who proposes to, starts or has completed a process to change their gender. The Act does not require a person to be under medical supervision to be protected – so a woman who decides to live as a man but does not undergo any medical procedures would be covered. It is discrimination to treat transgender people less favourably because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were ill or injured.
• Marriage and civil partnership: In England and Wales marriage is not restricted to a union between a man and a woman and includes a marriage between a same-sex couple. Same-sex and mixed-sex couples can also have their relationships legally recognised as ‘civil partnerships’. Civil partners must not be treated less favourably than married couples (except where permitted by the Act). The Act protects employees who are married or in a civil partnership against discrimination.
• Pregnancy and maternity: Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth. Protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.
• Race: Race refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins.
• Religion or belief: Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (for example atheism). Generally, a belief should affect life choices or the way a person lives for it to be included in the definition. In the Equality Act, religion includes any religion. It also includes a lack of religion.
• Sex: Both men and women are protected under the Act.
• Sexual orientation: Whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. The Act protects bisexual, gay, heterosexual and lesbian people.

5. Further Reading

5.1 Relevant information

Anti-Racism Resources (BASW England) 

Equality and Human Rights, Care Quality Commission

Equally outstanding: Equality and Human Rights – Good Practice Resource (CQC)

Social Work and Human Rights: A Practice Guide (BASW)

Culturally Appropriate Care (Care Quality Commission)

Appendix 1: Human Rights Legislation

See also Equality and Human Rights Commission 

1. Human Rights Act 1998 Overview

The Human Rights Act 1998 (HRA) lays down the fundamental rights and freedoms to which everyone in the UK is entitled. The rights set out in the European Convention on Human Rights (ECHR) are incorporated in the HRA. It sets out people’s human rights in different ‘articles’, which are all taken from the ECHR. They are:

• Article 2: Right to life;
• Article 3: Freedom from torture and inhuman or degrading treatment;
• Article 4: Freedom from slavery and forced labour;
• Article 5: Right to liberty and security;
• Article 6: Right to a fair trial;
• Article 7: No punishment without law;
• Article 8: Respect for private and family life, home and correspondence;
• Article 9: Freedom of thought, belief and religion;
• Article 10: Freedom of expression;
• Article 11: Freedom of assembly and association;
• Article 12: Right to marry and start a family;
• Article 14: Protection from discrimination in respect of these rights and freedoms;
• Protocol 1, Article 1: Right to peaceful enjoyment of property;
• Protocol 1, Article 2: Right to education;
• Protocol 1, Article 3: Right to participate in free elections;
• Protocol 13, Article 1: Abolition of the death penalty.

Human rights law applies to public bodies and other organisations carrying out functions of a public nature. A number of these articles relate to working with adults with care and support needs, in particular Articles 2; 3; 5; 8.

The HRA can be breached in three ways by public bodies if they:

• inflict explicit physical abuse or allow neglect of a person;
• intervene in a person’s life unlawfully and disproportionately;
• fail to intervene to protect a person from being abused or neglected by other persons.

2. Articles 2, 3, 5 and 8

2.1 Article 2 Right to Life

Article 2 applies in health and social care situations and requires an independent investigation into some deaths – coroner inquests – and may involve a breach of human rights with the state or public organisations implicated.

2.2 Article 3 Inhuman and Degrading Treatment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Degrading treatment would occur if it “humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish, or inferiority capable of breaking and individuals moral and physical resistance.” Pretty -v- UK [2002] 2FC 97

Article 3 is breached most frequently when public bodies carry out or are responsible for abusive care and treatment; that is allowing or ignoring actions when they should not have done so.

There is a positive duty under Article 3 for a public body to intervene when abuse is performed by one private individual against another person.

3. Article 5: Deprivation of Liberty

People who lack mental capacity are one of the categories when people can be deprived of their liberty (see Mental Capacity and Code of Practice chapter and Mental Capacity Act Deprivation of Liberty chapter). Legal procedures are set out in the Mental Capacity Act 2005 (MCA) and the Mental Health Act 1983 and should be followed. If they are not adhered to, it may lead to a breach of Article 5.

A deprivation of liberty under the MCA describes a best interest decision made in regard to a person who lacks mental capacity to decide about care, treatment or living arrangements. Such deprivations must be legally authorised under the provisions of the MCA (sections 4A-4B) or by order of the Court of Protection.

4. Article 8: Respect for private and family life, home and correspondence

Article 8 protects a person’s right to respect for their private life, their family life, their home and correspondence (for example, letters, telephone calls and emails).

4.1 Private life

A person has the right to live their life privately without government interference. This is a broad concept as interpreted by the courts, and covers areas such as:

• sexual orientation;
• lifestyle choices;
• how someone chooses to look and dress;
• the right for someone to control who sees and touches their body. In health services, for example, staff cannot leave someone undressed in a ward, or take a blood sample without the person’s permission;
• the right to develop a personal identity;
• to make friendships and other relationships;
• a right to participate in essential economic, social, cultural and leisure activities. In some circumstances, public bodies, such as the local authority, may need to help someone enjoy their ability to participate in society;
• the media and others being prevented from interfering in someone’s life.
• personal information (including official records, photographs, letters, diaries and medical records) being kept securely and not shared without the person’s permission, except in certain circumstances (see Data Protection: Legislation and Guidance chapter).

4.2 Family life

People have the right to enjoy family relationships without interference from government. This includes the right to live with their family and, where this is not possible, the right to have regular contact. This includes couples who are not married, between an adopted child and adoptive parent and a foster carer and fostered child.

If a local authority makes an unjustified intervention in the life of person lacking mental capacity it may also breach Article 8- London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP)

4.3 Home life

Everyone has a right to enjoy their existing home peacefully. Public bodies, therefore, should not stop a person from entering or living in their home without very good reason. They also cannot enter it without the person’s permission.

A right to home life does not mean, however, a right to be given housing.

4.4 Restrictions to Article 8

There are times when public bodies can interfere with someone’s right to respect for private and family life, home and correspondence. In such situations, the authority must be able to show that such action is lawful, necessary and proportionate in order to:

• protect national security;
• protect public safety;
• protect the economy;
• protect health or morals;
• prevent disorder or crime; or
• protect the rights and freedoms of other people.

Article 8 is not an absolute right. Interference with private life and family life is legally permissible but must be justified within the terms set out above.

A breach of Article 8 would occur if interventions are taken which are:

• inconsistent with the relevant law;
• consistent with the law but disproportionate and therefore unnecessary; or
• for a purpose other than the criteria listed above.

5. Article 10 Freedom of Expression

Article 10 is the freedom to hold opinions and to receive and impart information and ideas without inference from the State. This right is not absolute but subject to several provisos. Restrictions can only be justified if they are for a specific purpose, for example:

• public safety;
• the prevention of disorder or crime;
• the protection of health and morals;
• the protection of the reputation or rights of others;
• preventing the disclosure of confidential information.

The Care Act guidance warns local authorities against “abusive interventions that risk breaching the adult’s right to family life if not justified or proportionate“ Care and Support Statutory Guidance, Department of Health and Social Care, paragraph 14.98).

1. Introduction

Sections 20 and 21 of the Criminal Justice and Courts Act 2015 are a part of the Government’s response to the public inquiry conducted by Sir Robert Francis QC into the events at Mid-Staffordshire NHS Foundation Trust (Report of the Mid Staffordshire NHS Foundation Trust  Public Inquiry – also known as the Francis Report).

There were already offences in relation to the ill-treatment and wilful neglect of adults receiving treatment for mental disorder (under the Mental Health Act 1983) and of those who lack mental capacity. However, there was previously no equivalent specific offence in relation to those being cared for who had full mental capacity (see Mental Capacity chapter). Under these sections of the Act, it is a criminal offence for an individual to ill treat or wilfully or deliberately neglect a person for whom they care, in their role of being a care worker.

‘Wilful’ means that the care worker has acted deliberately or recklessly in relation to the person who they are paid to care for.

‘Ill-treatment’ is also a deliberate act, where the individual knew that they were ill treating a person, or were being reckless as to whether they were.

Ill treatment and neglect are separate concepts. Ill treatment does not necessarily have to result in physical harm and can involve emotional and psychological damage – that the actions have caused or have the potential to cause to the adult and their family (see case law R v Newington1990, 91 Cr App R 254). It can also include a failure to protect the privacy and dignity of a vulnerable adult when the victim is unaware that they are being ill treated.

These offences apply to both organisations and individuals.

The Care Quality Commission (CQC) has a role to play as the regulator in setting standards and ensuring adults are safeguarded from abuse and improper treatment. CQC can prosecute registered care providers whom they have judged to have breached the standard. Criminal offences only apply to cases of wilful neglect where there is evidence of the worker or organisation acting or omitting to act deliberately, even though they know there is some risk to the adult as a consequence or because they do not care about that risk. Genuine errors or accidents by a care worker should not be caught within these offences.

2. Care Worker Offence

Under the Act a ‘care worker’ means an individual, who, is paid to provide health or social care. They may also be a director or be in a similar post within an organisation that provides health or social care.

‘Paid work’ means when a person is paid for carrying out care (see Appendix 1, Further Information, Paid work).

Health care includes all types of physical health or mental health care provided to adults. This also includes health care in relation to protecting or improving public health, and procedures that are similar to types of medical or surgical care but are not provided in connection with medical conditions which are excluded health care (see Excluded Healthcare) .

Social care includes all types of personal care, physical support and other practical assistance provided for people who need such care or assistance. This may because of:

• age;
• Illness;
• disability;
• pregnancy;
• childbirth;
• dependence on alcohol or drugs; or
• any other similar circumstances.

This would not include a person who provided such care which was secondary to carrying out other activities.

A care worker found guilty of such an offence could receive a prison sentence of up to five years or a fine (or both); or for a less serious charge a prison sentence of up to 12 months or a fine (or both).

Unpaid family carers and friends cannot be charged with these offences. They may be investigated and charged under different legislation, however.

3. Care Provider Offence

The term ‘care provider’ means:

• a corporation or association that provides and / or arranges health care (apart from excluded health care – see Section 2, above) or social care for an adult;
• a person who is not the care provider, but provides health care or social care which has been arranged by the care provider, including where the individual does not provide care but supervises or manages those who do;
• a director or similar post holder in an organisation which provides health care or social care;
• a person who provides such care and employs or has arrangements with other people to assist them in providing such care.

A care provider commits an offence if:

• a care worker who is caring for an individual (as part of the care provider’s arrangements) ill treats or wilfully neglects that individual;
• if the care provider’s activities are managed or organised in a way which leads to a gross breach of a duty of care by the care provider to the individual who is ill-treated or neglected, and if that had not happened, the ill treatment or wilful neglect would not have occurred or would have been less likely to occur.

A person arranging for the provision of such care does not include someone who makes arrangements under which the provision of such care is secondary to carrying out other activities.

References made to providing or arranging the provision of health care or social care do not include making:

• direct payments for community services and carers;
• direct payments for health care;
• direct payments for care and support.

4. The Duty of Candour

There is a requirement on health and social services to be open and honest with patients and service users when things go wrong. Professionals are expected to be candid with adults who use their services and their families when serious events occur and not obstruct fellow professionals who raise concerns.

The Francis Report recommends that healthcare providers must inform patients or other authorised persons as soon as practicable when they believe that the treatment of care provided has caused death or serious injury to that patient and provide information and explanation as the patient may reasonably request.

It also recommends a duty of candour on individual professionals to inform their employers where they believe or suspect that the treatment has caused death or injury. It is a criminal offence to obstruct a person in the performance of these duties or provide misleading information.

The Care Act includes a duty of candour as one of the requirements for providers registered with the CQC. All providers must act in open and transparent manner with adults who use their services and their families about their care and treatment.

There is also a requirement to notify and provide information and support to the adult or the person acting on their behalf where:

(i) an incident has resulted in or appears to have resulted in the death of an adult who uses the service ; or

(ii) caused severe harm or moderate harm or prolonged psychological harm to them.

The regulations also set out a notification requirement and it is a criminal offence for workers who commit breaches of the duty of candour.

Appendix 1: Further Information

1. Meaning of Wilful

The meaning of “wilful “has been developed in the case of R -v–Sheppard [1981) AC the House of Lords  held that a man “wilfully” fails to provide adequate medical attention for [P] if he either:

(a)  Deliberately does so knowing that there is some risk that P’s health may suffer unless he receives such attention; or

(b) Does so because he does not care whether P may in need of medical treatment, or not’

2. Paid work

Paid work does not include:

• payment in respect of the individual’s expenses;
• payment to which the individual is entitled as a foster parent;
• a benefit under social security legislation;
• or a payment made under arrangements under Section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).

1. Introduction

The relationship between local housing and adult and social care departments can be complex because there are often legal and practical difficulties arising from circumstances where vulnerable adults and families fall below or between two legal frameworks. Their needs may not be sufficient to qualify them under the Care Act 2014 (CA) but they may also not meet the criteria for a positive housing decision because they do not have sufficient vulnerability to be assessed as being in ‘priority need’ (see Section 4.2.2, Section 189: Priority Need).

The CA allows the local authority to provide any type of accommodation which may be called ‘ordinary accommodation’, that is “accommodation in a care home or in premises of another type” where they would receive care and support services relevant for their assessed needs.

From an adult social care perspective, the local authority must not meet a person’s care and support needs by taking any action which is required – either by itself or another local authority – under the Housing Act 1996 (HA) or other housing related legislation. A local authority can provide ordinary accommodation under the CA when they are not under a duty to provide that person with accommodation under the HA.

Once the local authority has assessed an applicant’s needs as satisfying the relevant criteria, it must provide accommodation on a continuing basis so long as the need of the applicant remains as the same as originally assessed.

A local authority from an adult social care perspective may provide ordinary accommodation, and any other service within reason, to an adult whom it assesses as needing care and support under the CA; whether or not the local authority uses that power is for it to decide.

See also Appendix 1: Further Information, Accommodation.

2. Homelessness Service in Knowsley

See Knowsley Housing Solutions for further information

The Knowsley Housing Solutions Team provides Knowsley residents with specialist housing advice and support. They can offer advice and support, based on individual circumstances, if people are homeless or are worried about becoming homeless.

3. Safeguarding Concerns

Adults who are homeless may be vulnerable to abuse, whether they are rough sleeping, sofa surfing or in temporary accommodation. For example their lack of stable accommodation can leave them vulnerable to physical, emotional or sexual abuse, criminal exploitation and their possessions vulnerable to theft.

Staff who work with adults who are homeless should be aware of the increased possibility of safeguarding issues, be able to recognise the signs of potential abuse and to take action if they suspect that someone is being abused (see Knowsley Safeguarding Adults Procedures).

4. Homelessness Legislation

4.1 Housing Act 1996

The main legislation that addresses local authority duties in relation to people who are homeless is the Housing Act 1996. This states the legal requirements that underpin local authority action to prevent homelessness and provide assistance to people who are threatened with homeless or who are homeless.

In 2002, the legislation was amended through:

• the Homelessness Act 2002 which means each local housing authority has a duty to undertake a review of homelessness and to develop and implement an effective strategy to deal with homelessness in consultation with both Social Services and other organisations; and
• the Homelessness (Priority Need for Accommodation) (England) Order 2002 which extended the class of persons with a priority need for accommodation to six additional categories:
• 16-17 years old;
• 18-20 care leavers ;

• vulnerable care leavers;

• former members of the armed forces;
• vulnerable former prisoner;
• persons fleeing violence.

These were introduced to ensure a more strategic approach to tackling and preventing homelessness and to strengthen the assistance available to people who are homeless or threatened with homelessness by extending the priority need categories.

4.2 Homelessness Reduction Act 2017

The Homelessness Reduction Act 2017 (HRA) amended the Housing Act 1996.

One of the aims of the HRA is to ensure that all eligible households who are homeless or threatened with homelessness receive genuine and effective advice and assistance to help them secure accommodation. The HRA aims to widen access to homelessness advice and prevention services for all households who are experiencing homelessness or who are at risk of losing their home. It introduced a statutory duty to carry out assessments on all applicants, as well as duties to prevent and relieve homelessness in all cases.

Key sections in the Act are outlined below.

4.2.1 Section 179: Expanded the general duty to provide advice

Local housing authorities have a duty to ensure that advice and information on homelessness prevention and on how people can access help and support when homeless is made available free of charge. The HRA specifies the types of information that has to be made available and requires that advice and information has to be tailored to meet the needs of the following specific groups:

1. people released from prison or youth detention accommodation;
2. care leavers;
3. former members of the regular armed forces;
4. victims of domestic abuse;
5. people leaving hospital;
6. people living with a mental illness or impairment; and,
7. any other group that the authority identify as being at particular risk of homelessness in their area.

The local authority can provide this advice themselves or arrange for other agencies to do it on their behalf.

4.2.2 Section 189: Priority Need

A person who is homeless and who approaches the local authority for assistance (known as an eligible applicant) has to fall into one of the priority need categories in order for the local authority to have a duty to obtain temporary accommodation for them. The following people have a priority need for accommodation:

1. a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
2. a person with whom dependent children reside or might reasonably be expected to reside;
3. a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster;
4. homeless 16 and 17 year olds;
5. care leavers aged 18, 19 and 20;
6. a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
7. people who are vulnerable as a result of time spent in care, the armed forces, prison or custody;
8. people who are vulnerable because they have fled their home because of violence.

Such decisions can be controversial and can be subject to challenge and review, however.

The term ‘vulnerable’ is not defined in the legislation, therefore a considerable amount of case law considers how to define and interpret ‘vulnerable for example, Hotak v Southwark LBC; Kanu v Southwark LBC; Johnson v Solihull MBC [2015] UKSC 30. The Supreme Court judgment decided in these cases a homeless person is in priority need if he or she is vulnerable compared to the average person, not the average homeless person (Johnson vulnerability).

The test involves comparing the ability of the applicant to deal with the effects of being homeless with the ability of a hypothetical ordinary person to deal with the same situation. In order to be deemed vulnerable, the applicant must be:

1. significantly more vulnerable than an ordinary person in need of accommodation; and
2. likely to suffer greater harm in the same situation.

See also Appendix 1: Further Information, The vulnerability test.

Vulnerability in this context relates to a person’s vulnerability if they are not provided with accommodation, not their general ‘need of care and support’.

4.3.3 Section 189A: Assessments and Personalised Housing Plans where the person is homeless or threatened with homelessness

Local housing authorities must carry out an assessment where an eligible applicant is homeless or threatened with homelessness. This should identify what has caused the homelessness or threat of homelessness, the applicant’s housing needs and any support they need in order to be able obtain and stay in new accommodation.

Following the assessment, the local authority must work with them to develop a personalised housing plan. This should contain actions for the local authority to help them secure new suitable accommodation. A copy of the assessment and the plan must be given to the person, and both must be reviewed whilst the local authority continues to have any duty to them.

Practically, the local authority must try to agree a written list of the actions that each party will take. If they cannot be agreed, the local authority must produce a record of the reasons for the disagreement and detail what steps the local authority will take and those steps expected from the applicant. Until a point at which the local authority decides it does not owe a duty to the applicant, it has to keep the assessment under review, together with the appropriateness of any agreement reached or steps taken.

4.3.4 Section 189B: Relief Duty

The local authority has a duty to provide support and help to all eligible people who are homeless. This is met by helping a person secure suitable accommodation, where they have a reasonable possibility of staying for at least six months. The relief duty can remain in place for up to 56 days. If the applicant is still homeless at the end of this period the local authority must decide what further duty, if any, is owed to them.

The relief duty applies to all eligible applicants who are homeless; it is not conditional upon them being in a priority group.

The local authority can consider a person’s local connection when a relief duty is in place. If they do not have a local connection to the local authority and have a safe local connection to another local authority area, the local authority can decide to refer their case to the other area.

4.3.5 Duty to help to secure accommodation

Housing authorities have a number of duties and powers to secure accommodation for an applicant. The HRA introduces a duty of ‘help to secure’ accommodation for all applicants under prevention and relief duties. This does not mean that the housing authority has a duty to directly find and secure the accommodation, but involves them working with an applicant to agree reasonable steps that they and the local authority will take to identify and secure suitable accommodation.

The prevention or relief duty will be met if any type of suitable accommodation can be found when helping the applicant to secure accommodation. It can often be met by helping them to secure a tenancy; it can also be met by helping them to secure any type of suitable accommodation, including accommodation occupied under a licence.

The local authority can secure suitable accommodation in the following ways:

• providing it themselves; or
• arranging that the applicant obtains it from some other person; or

• giving the applicant advice and assistance so that accommodation is available from some other person (in R v (Miah) v Tower Hamlets LBC [2014] EWHC 1029 advice to meet the duty then ends the duty).

The local authority must provide temporary accommodation for applicants who are in a priority need group whilst it performs the relief duty.

4.3.6 Section 191: Intentionally homeless

A person becomes intentionally homeless if they deliberately do something, or fail to do something that as a direct consequence means they no longer live in accommodation that was reasonable for them to stay in.

The local authority must be satisfied that all five elements of the intentional homeless (IH) test apply:

1. What did the applicant do or fail to do?
2. Did it lead to a loss of the accommodation as a consequence of an act or omission?
3. Was there a termination or interruption in the occupation as distinct from a failure to take up accommodation?
4. Was the accommodation available for the homeless person’s occupation?
5. Would it have been reasonable for the homeless person to continue to occupy the accommodation?

A person will also be found to be intentionally homeless if they enter into any arrangement under which they are required to leave the accommodation which it would have been reasonable for them to continue live in, if the purpose of that arrangement was to enable them to claim assistance as a homeless person.

In considering whether a person deliberately becomes homeless the local authority has to ask whether the loss of accommodation would reasonably have been regarded as a likely consequence of that person’s deliberate conduct:

• ‘deliberate’ relates to the act or omission;
• ‘likely’ means a real or serious possibility;
• the link between the act and the homelessness must be judged objectively;
• the deliberate act must have contributed in some measure to the loss of the home.

There may be a number of causes of the homelessness, some of which may be ‘innocent’ but the applicant will still be IH if the local authority – on the balance of probabilities – is satisfied that homelessness was a likely consequence of a deliberate act. Examples are:

• the applicant’s tenancy was not renewed by the landlord and was a reasonable result of the behaviour of not paying rent or withholding rent;
• an applicant guilty of ASB or criminal behaviour is forced to leave their home because of i.e. threats. They are IH because the accommodation would have been reasonable to occupy but for ASB.

Where the homeless person took action or failed to act, there is a good faith test that has to be considered in regard to a deliberate act, that is, was the applicant acting honestly or were they genuinely ignorant of a relevant fact?

If it is decided that a person is intentionally homeless, this limits the duties and assistance the local authority can give them. At the most, if they are also in priority need, they will be provided with temporary accommodation for a reasonable period only. This period – usually around 28 days – is to allow them to make their own arrangements to secure alternative accommodation.

4.3.7 Section 195: The Prevention Duty

The local authority has a prevention duty to provide support and help to all eligible people who are threatened with becoming homeless within the next 56 days. This duty is often be met by providing assistance to enable a person to remain in their current home, where possible, however where this is not feasible it can be met by helping them move to another home in a planned way, without them becoming homeless.

This duty applies to all eligible applicants who are threatened with homelessness, it is not conditional upon the applicant being in a priority group and it does not require an applicant to have a local connection to the area. The duty remains in place for up to 56 days, although it can be longer, if required.

4.3.8 Section 195: A change to the meaning of ‘threatened with homelessness’

Under the HRA, households are considered to be threatened with homelessness if they are considered to be threatened with homelessness in the next 56 days. This period has been doubled from previous legislation in the HA, previously it was 28 days from date they presented for accommodation.

This is to require local authorities to intervene to provide assistance at an earlier stage, so there is increased opportunity to achieve a successful homelessness prevention outcome. The local authority is obliged to take reasonable steps to help the applicant secure that accommodation so it does not cease to be available for their occupation. In deciding the steps to take the authority must have regard to its own assessment.

4.3.9 Section 199: Local connection and a local connection for care leavers

An applicant has a local connection to an area if they are:

1. normally resident in the area (usually for six of the past 12 months, or for three out of the past five years);
2. employed in the area;
3. have family associations to the area; or actual relationships are often considered more important than blood ties
4. have other special circumstances that give them a connection.

A local connection is determined by the facts and circumstances at the date that the local authority completed its enquiries.

A young person owed leaving care duties under the Children Act 1989 will have a local connection to the area of the children services authority that owes them the duties.

Where a care leaver is aged under 21 and normally lives in a different area to that of a local authority that owes them leaving care duties, and has done for at least two years including some time before they turned 16, the young person will also have a local connection in that area.

4.3.10 Section 213B: Duty to Refer

The HRA introduced a duty to refer, which is placed on other public sector bodies, not the local housing authority. Social care services, including adult social care, are subject to this duty.

The aim of this duty is to help early identification of households who are homeless or threatened with homelessness, and to build on / develop joint working relationships between organisations in order to effectively prevent and relieve homelessness. The following organisations are subject to the duty to refer, and must refer people who they come into contact with, who are experiencing homelessness or who are threatened with becoming homeless:

• prisons;
• youth offender institutions;
• secure training centres;
• secure colleges;
• youth offending teams;
• the probation service;
• Job Centre Plus;
• social service authorities;
• emergency departments;
• urgent treatment centres;
• hospitals in their function of providing inpatient care;
• the Secretary for Defence in relation to former members of the regular armed forces.

The organisation must first have consent from the person they are going to refer. The person must then nominate a local authority in England where they want the referral to be sent. The referral itself will not mean a homelessness application has been made.

4.4 Summary of the main provisions of HRA

1. The legislation introduces requirements for local housing authorities to carry out homelessness prevention work with all those persons who are eligible for help and threatened with homelessness.
2. The HRA changes the point at which a person is classed as being threatened with homelessness from 28 days to 56 days.
3. It makes changes to the way local authorities assess and the point in time in which a person becomes homeless or is threatened with homelessness. The HRA requires local housing authorities to carry out an assessment of the applicant’s needs and that the steps agreed between the local housing authority and the applicant are set out in writing in the form of a personalised plan.
4. A duty is placed on local housing authorities to take steps for 56 days to relieve homelessness by helping any eligible homeless applicant to secure accommodation.
5. A further duty was introduced that is owed to certain applicants who deliberately and unreasonably refuse to co-operate with local housing authorities.
6. The legislation specifies that local agencies should refer those persons who are either homeless or at risk of being homeless to local housing authority teams.
7. Provisions are made for certain care leavers to make it easier for them to show they have a local connection with both the area of the local authority responsible for them and the area in which they lived while in care if that was different.

4.5 Applying the Equality Act 2010 in re priority need and disability

The definition of disability in the Equality Act 2010 (EA) is “a person has a disability if s/he has a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability”.

When making decisions about priority need under the EA, the local authority must ensure it has taken all steps to gather all relevant information relating to the applicant’s mental or physical disability.  Workers should undertake a full assessment interview with the applicant, focus on questions that relate to any physical or mental impairment and ask how the impairment might impact on them if s/he were to become or remain homeless.

The Supreme Court judgment stated that the EA is ‘engaged’ when making decisions on vulnerability where the applicant has a relevant protected characteristic: age; disability; gender; gender reassignment; pregnancy and maternity; race; religion or belief and sexual orientation. The court accepted that on priority need a protected characteristic will be a disability and these questions should be considered:

1. What is the extent of the applicant’s disability?
2. What is the likely effect of the disability on the applicant when taken together with that person’s other problems?
3. Is the worker satisfied that relevant third party inquiries have been undertaken into any mental or physical impairment to demonstrate that the applicant meets the requirements set down by the EA?

If the applicant is found not to have a priority need category the reasons must be set out.

The local authority may find an applicant comes under the definition for the disability protected characteristic in a priority need, but does not automatically become eligible because they meet the definition.

If a local authority reaches a decision that on the evidence they are not vulnerable, despite coming under the disability protected characteristic, it must justify the decision as a proportionate means of achieving a legitimate aim, which is to meet the obligation set by the homeless legislation to decide when a person’s disability makes a person vulnerable under the EA.

5. Useful Resources

5.1 Homelessness Code of Guidance for Local Authorities

The Homelessness Code of Guidance for Local Authorities provides statutory guidance that all local authorities must consider when carrying out their duties relating to homelessness and preventing homelessness. The code is issued specifically for local authority members and staff, including social care services (see Section 4.3.10, Section 213B: Duty to Refer).

The guidance includes information on preventing and tackling homelessness, including joint working between housing and other services to secure accommodation and provide support. It also covers the duty to refer, although it was published prior to the implementation of the HRA.

5.2 Other useful resources

National Homelessness Advice Service NHAS: Useful information and resources for local authority staff, housing providers and members of the public. Requires a log in to access some resources.

Shelter Legal: Detailed and useful resources on homelessness applications, legal duties, security of tenure, rents, benefits etc.

Housing LIN (Learning and Improvement Network)

Integrated Health and Social Care for People Experiencing Homelessness (NICE)

Capacity and Housing Issues (39 Essex Chambers)

Care and Support and Homelessness: Top Tips on the Role of Adult Social Care (LGA)

Appendix 1: Further Information

1.1 Accommodation

In R v Kensington and Chelsea RLBC Ex p Kujtim [1999] CCLR 340 CA the Court of Appeal held that residential accommodation could include ‘ordinary’ housing accommodation. A duty to supply such accommodation arose where a person needed care and attention, including housing accommodation when it is not available. The need for care Is a precondition for this duty. Although CA uses the phrase ‘care and support’ instead of the term under the National Assistance Act 1948 (NAA) ’care and attention’, it has been held that the case law under the NAA still applies.

In R (SG) v Haringey LBC [2015] EWHC 2579 (Admin) it was held a local authority needs only provide under CA a response to an accommodation related need.

Deputy High Court Judge Bowers “The service provided in a non-home environment, would be rendered effectively useless if the claimant were homeless sand sleeping on the street”.

1.2 The vulnerability test

The Johnson vulnerability test is practically applied by asking the following questions:

1. What are the person’s problems?
2. What is the impact of those problems on them?
3. What is their ability to manage their problems by themselves and with the help of others?
4. Taking into account investigations from questions 1-3 how would they suffer more harm than an ordinary person without access to a home? i.e. would they suffer more harm than you or I if they were to become homeless?

Audio & Quick Read Summary

1. Definition

The Mental Capacity Act 2005 (MCA) provides a framework to protect and restore power to those who may lack, or have reduced, mental capacity to make certain decisions at particular times. It places the adult at the centre of the decision making process.

‘Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.

It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.

Finally, it reflects the fact that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (MCA 2005 Code of Practice: p3).

The MCA legislates in relation to:

• allowing adults to make as many decisions as they can for themselves;
• enabling adults to make advance decisions about whether they would like future medical treatment;
• allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date;
• allowing decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
• ensuring an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted (see also Independent Mental Capacity Advocate Service);
• providing protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests;
• providing clarity and safeguards around research in relation to those who lack capacity.

The MCA relates to people over the age of 16 years old. However, these policies and procedures apply only to adults over the age of 18 years.

2. Principles of the Mental Capacity Act

The following five principles apply for the purposes of the MCA:

• it must be assumed that a person has mental capacity unless they have been assessed as lacking mental capacity;
• a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
• a person should not be treated as unable to make a decision just because they make a decision that seems to others to be unwise or wrong;
• an act or decision carried out for the person who lacks mental capacity must be done in their best interests;
• before an act or decision is carried out, there must be consideration given to achieving the intended outcome in a way that is less restrictive of the person’s rights and freedoms.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions or agreeing actions on their behalf.

3. Determining Capacity

As noted in section 2, it must be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so. This means that anybody who claims an adult lacks mental capacity should be able to provide evidence in support of this.

They need to demonstrate, on the balance of probabilities, that the adult lacks the mental capacity to make a particular decision, at the time it needs to be made. This means being able to demonstrate it is more likely than not that the person lacks capacity to make the decision in question.

3.1 Two stage test

To help decide if a person lacks capacity, the MCA sets out a two stage test.

Stage 1: The Functioning Test – can the adult make the decision in question?

This involves looking at whether the adult is able to make the required decision.

Practical and appropriate support should be provided to help the adult make the decision for themselves, if required.

An adult is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (known as the ‘relevant information’);
2. keep that information in their mind;
3. use or weigh up that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence in one of these areas, not all of them.

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the person unable to make the decision because of an impairment or disturbance in the functioning of their mind or brain?

This requires evidence to show the person has an impairment or disturbance of the mind or brain. Examples include:

• conditions associated with some forms of mental illness;
• dementia;
• significant learning disabilities;
• the long term effects of brain damage;
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
• delirium;
• concussion following a head injury; and

• effects of alcohol or drug use.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack mental capacity under the MCA.

Once the adult has been identified as having an impairment or disturbance in the functioning of the mind or brain, it is important to determine that their inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the person cannot make the decision because of the impairment of their mind, can it be said that they lack mental capacity to make the decision.

Assessors should also consider the case of SS v London Borough of Richmond upon Thames and South West London Clinical Commissioning Group [2021] in which Mr Justice Hayden, Vice President of the Court of Protection highlighted (SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (30 April 2021, bailii.org):

I hope Dr N will not think me too pedantic if I make the observation that “patient failed capacity assessment” strikes me as awkwardly expressed. It is not a test that an individual passes or fails, it is an evaluation of whether the presumption of capacity has been rebutted and if so, for what reason.

4. Recording

The two stage test should be used as a framework for recording the assessment of mental capacity, so that the evidence for decision making is clear.

Recording needs to be clear and, where possible, extracts taken from conversations practitioners have had with the adult, to evidence the outcome.

5. Making Decisions on behalf of someone who lacks Capacity

If, having taken all practical steps to support the adult to make their own decision, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. It must also be considered whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle). See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA).

6.1 Decision makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to determine what would be in the best interests of the person who lacks capacity.

Determining who the decision maker is depends on the decision and the context, and not on the circumstances of the individual. For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time. Family members and informal carers will be decision makers for actions that they undertake. A care assistant will be the decision maker if the decision is, for instance, about what clothes to put on that morning.

Professionals are the decision makers for actions for which they are responsible. A doctor or other health professional will be the decision maker about someone’s capacity for the treatment they are prescribing, or initiating a care pathway. A nurse will be the decision maker about the treatment or care that they are delivering or administering. A social care professional will be the decision maker about a move into residential care or commissioning a package of care.

In some cases, the same person may make different types of decision for someone who lacks mental capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a lasting power of attorney, they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different healthcare or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be in the person’s best interests. Practitioners need to ensure that someone is representing the adult, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

In a best interests meeting, the aim is for everyone involved to be in agreement with the decisions made. However, this may not always be possible.

In such situations, it can be useful to involve different people, for example, to chair the meeting and make decisions, who are separate from the lead practitioner working with the adult.

5.2 Lasting power of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose mental capacity in the future.  LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection, but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

5.3 Independent mental capacity advocates

See Independent Mental Capacity Advocate Service chapter

Independent mental capacity advocates (IMCAs) are appointed to support a person who lacks mental capacity but has no one to speak for them. IMCAs have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority.

The IMCA makes representations about the person’s wishes, feelings, beliefs and values, and brings to the attention of the decision maker all relevant factors to the case. IMCA services are provided by organisations that are independent of the NHS and local authorities.

5.4 Forward planning

See Advance Care Planning chapter

Considering the possibility of losing mental capacity and registering lasting power of attorney is usually associated with people getting older. But it is wise to consider such decisions and act on them much earlier in life, in case of unexpected illness or an accident that results in a temporary or permanent loss of mental capacity.

Using an LPA is not limited to circumstances where an adult’s mental capacity is reduced. Due to a physical illness that renders a person (the donor) unable to leave the house for example, an LPA who is registered in relation to property and financial affairs can carry out financial transactions on their behalf and with their permission. In the absence of a registered LPA, the alternative would be to borrow the money which could attract charges or to apply to the Court of Protection.

Although an LPA cannot be used until it has been fully registered with the OPG and confirmation received, they can be registered before the adult loses mental capacity which means that they could be used immediately if it should become necessary.

6. Best Interests

See Best Interests chapter

The MCA sets out a checklist of things to consider when deciding what is in a person’s best interests. When making best interests decisions, practitioners should:

• not make assumptions on the basis of age, appearance, condition or behaviour;
• consider all the relevant circumstances;
• consider whether or when the person will have capacity to make the decision;
• support the person’s participation in any acts or decisions made for them;
• not make a decision about life sustaining treatment ‘motivated by a desire to bring about his (or her) death’;
• consider the person’s expressed wishes and feelings, beliefs and values;
• take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

7. Excluded Decisions

There are certain decisions which can never be made on behalf of a person who lacks mental capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or they are governed by other legislation. They include the following.

7.1 Decisions concerning family relationships

Nothing in the MCA allows a decision to be made on someone else’s behalf on:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce on the basis of two years’ separation;
• consenting to the dissolution of a civil partnership;
• consenting to a child being placed for adoption or the making of an adoption order;
• discharging parental responsibility for a child in matters not relating to the child’s property;
• giving consent under the Human Fertilisation and Embryology Act 1990; or
• decisions around contact with others, including restricting the use of social media, telephone calls and who can visit the adult.

All these types of decisions should be referred to the Court of Protection if the person is believed to lack mental capacity to make these decisions themselves.

7.2 Mental Health Act matters

Where a person who lacks mental capacity to consent is currently detained and being treated under the Mental Health Act 1983, the MCA does not authorise anyone to:

• give them treatment for mental disorder; or
• consent to them being given treatment for mental disorder.

7.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote.

7.4 Unlawful killing or assisting suicide

The MCA does not change the law relating to murder, manslaughter or assisting suicide.

8. Further Reading

8.1 Relevant chapters

Deprivation of Liberty Safeguards

Best Interests

Independent Mental Capacity Advocate Service

Assessment

8.2 Relevant information

Mental Capacity Act 2005 Code of Practice

Decision-Making and Mental Capacity (NICE)

Assessment and Recording of Capacity (39 Essex Chambers)

Mental Capacity Toolkit (University of Bournemouth 

Mental Capacity Act (MCA): e-Learning course (SCIE)

Fluctuating Capacity in Context (39 Essex Chambers) 

ePractice

Audio & Quick Read Summary

1. Introduction

This chapter is a summary of the Professional Capabilities Framework (PCF) guidance, which is the structure of social work skills professional development in England.

The Framework includes:

• alignment between PCF and the Knowledge and Skills Statements (KSS) in the British Association of Social Work (BASW), the Department of Health and Social Care (DHSC) and the Department for Education (DfE);
• definition of the PCF;
• capabilities;
• PCF graphic;
• super domains – purpose, practice, impact;
• domain descriptors;
• level descriptors.

2. Alignment with Knowledge and Skills Statements

The PCF outlines the framework of capabilities and professional development. It is linked to the structure of Knowledge and Skills Statements (KSS) so that the two frameworks can be used in conjunction with each other.

‘The KSS set out what a social worker should know, and be able to do, in specific practice settings, in specific roles and at different levels of seniority. The KSS map onto the Practice domains of the PCF (Knowledge, Critical Reflection and Analysis, Interventions and Skills) and should help guide everyday practice’.

See What is the Relationship between the PCF and KSS? (BASW)

3. Definition of the PCF

The PCF is the framework for social work practice and learning in England and performs the following functions:

• sets out nine common domains of capability for social workers;
• promotes and underpins social work for all social workers across all specialisms and roles;
• supports social workers to meet requirements of the professional regulator;
• describes the range of roles within the social work professions;
• supports employers, workforce leads, managers and supervisors as well as individual social worker, sin developing social work careers and ongoing professional learning;
• is aligned with the International Federation of Social Workers’ (IFSW) global definition of social work through the BASW Code of Ethics for social workers across the UK.

Specialist knowledge, skills or learning content that may be needed in particular work contexts or roles is not described by the PCF.

4. Capabilities

Capabilities are an integration of knowledge, skills, personal qualities, behaviour, understanding and values used appropriately, effectively and confidently, not just in familiar and highly focused specialist contexts but in response to new, complex and changing circumstances.

The capabilities described in the PCF provide the basis and rationale for social work practice.

The nine levels of capability outlined in the PCF guides social workers to develop their skills to deal with situations of increasing risk, ambiguity and complexity.

See also the PCF Fan Graphic

5. Super Domains

There are three super, overarching domains which cut across all other areas. These are:

• purpose – why we do what we do as social workers, our values, ethics and how we approach our work;
• practice – what we do – specific skills, knowledge, interventions and critical analytical abilities we develop;
• impact – ow we make a difference and how we know we make a difference. Ability to bring about change through practice, leadership, and professionalism.

5.1 Domain descriptors

The domain descriptors describe key areas of social work practice. These are:

• professionalism;
• values and ethics;
• diversity and equality;
• rights, justice and economic wellbeing;
• knowledge;
• critical reflection and analysis;
• intervention and skills;
• contexts and organisations;
• professional leadership.

5.2 Level descriptors

Level descriptor describe the levels of post within social work. These are:

• pre-qualifying levels:
• point of entry training;
• readiness for practice;
• end of first placement;
• end of second placement;
• newly qualified social worker (ASYE);
• social worker;
• experienced social worker;
• advanced social worker;
• advanced social work practitioner;
• advanced social work educator;
• social work managers/team or practice leads;
• strategic social worker;
• strategic social work practitioner;
• strategic social work educator;
• strategic social work managers / leaders.

6. Further Reading

6.1 Relevant chapters

Social Workers Supervision Policy

Workplanning and Appraisal

6.2 Relevant information

About the Professional Capabilities Framework (BASW) 

Professional Standards (Social Work England)

Professional Standards Guidance (Social Work England)

1. Introduction: What is Modern Slavery?

Modern slavery is a serious and often hidden crime where people are exploited by criminals, usually for profit. It includes human trafficking, slavery, servitude and forced labour.

In all types of modern slavery a victim is, or is intended to be, used or exploited for someone else’s gain, with no respect for their human rights. Criminals involved in modern slavery can be people working alone, those running small businesses or part of a wider organised crime network.

Adult victims will usually be coerced or forced into modern slavery, by using threats, force, deception, or abusing their position of power over victims. However, vulnerable adults (and children) cannot give their informed consent to be in such a position and therefore exploitation – even without any type of coercion – could still be modern slavery.

The scale of modern slavery in the UK is significant. Modern slavery crimes are being committed throughout the country and there have been increases in the number of victims identified every year. In 2023, the Home Office received 8,622 referrals for adult potential victims via the National Referral Mechanism (NRM) process; a further 4,929 reports of adult potential victims were received through the Duty to Refer (DtN) process (see Section 5, National Referral Mechanism and the Duty to Refer). Adults who consented to a referral for support through the NRM were most commonly from Albania, Vietnam or Eritrea.

Modern slavery can be difficult to spot and often goes unreported. Staff working in social care, health, local authorities and any other role which comes into contact with the public could potentially see signs of modern slavery. Staff should be trained to:

• understand the signs or indicators of modern slavery;
• know how to take appropriate action; and
• provide possible victims with protection and support, based upon their individual needs. It is essential that professionals recognise that those who were previously victims of modern slavery (known as survivors) may be at risk of re-trafficking and further harm and take action to prevent this. This is because they may be found by their previous exploiters or coerced by new exploiters.

Multi-agency working is vital to ensure that victims are identified, protected and safeguarded.

Modern slavery is an adult safeguarding concern, and the local authority has legal duties to provide support for suspected or known victims. Under the Modern Slavery Act 2015, all modern slavery offences are punishable by a maximum sentence of life imprisonment. For modern slavery concerns regarding children, please see the Knowsley Safeguarding Children Partnership Procedures.

2. Types of Modern Slavery

Modern slavery includes the following:

• human trafficking;
• slavery, servitude and forced or compulsory labour.

2.1 Human trafficking

Human trafficking is where a victim is forced or deceived into a situation where they are then exploited. It involves the movement of people for exploitation and can occur across international borders or within a country.

The Council of Europe Convention on Action against Trafficking in Human Beings defines ‘human trafficking’ as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Human trafficking involves three basic elements:

1. action;
2. means; and
3. purpose of exploitation.

It should be seen as a process involving a number of actions which are all connected, rather than a single act at a particular point in time, as noted in the table below:

(taken from Modern Slavery Statutory Guidance: How to Identify and Support Victims, Home Office)

To be considered as human trafficking, a victim must be trafficked for the purposes of exploitation. This can be:

• sexual exploitation: in most cases of human trafficking for sexual exploitation purposes victims will be female, but there are also male victims. Rape and violence are common, and victims are often tricked and given false promises of good jobs and economic opportunities;
• forced or compulsory labour: victims have to work for little or no pay and their employers will not let them leave or find another job. If they are foreign nationals, their passports may be taken by their exploiters so they cannot return home. They may also be forced to live in terrible conditions. Forced labour can take place in any sector of the labour market, including manufacturing, food preparation and processing, agriculture, hospitality, nail bars and hand car washes;
• forced criminality / criminal exploitation: victims are forced to commit illegal activities, including pick pocketing, shop lifting, begging, growing and cultivating cannabis, being exploited across different areas of the country – know as ‘county lines’, benefit fraud, sham marriage and other crimes. The Modern Slavery Act states that victims who have been forced into criminality should not be prosecuted;
• removal of organs: victims are trafficked for their internal organs (typically kidneys or the liver) to be taken (‘harvested’) to be transplanted in other people (who usually pay for the new organs);
• domestic servitude: victims work in a household where they may be ill-treated, humiliated, made to work long and tiring hours, forced to work and live in very difficult conditions or forced to work for little or no pay. Sometimes, someone who is a victim of forced marriage can also be a victim of domestic servitude.

2.2 Slavery, servitude and forced or compulsory labour

As well as trafficking, modern slavery also covers cases of slavery, servitude and forced or compulsory labour. Some people may not be victims of human trafficking because they have not moved out of their local area, but can still be victims of modern slavery.

Slavery, servitude and forced labour are illegal in the UK.

For a person to be a victim of slavery, servitude and forced labour there must have been:

• the means (being held, either physically or through threat – for example, threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability);
• a service (a person has to have provided a service for the benefit of others – for example, begging, sexual services, manual labour, domestic service).

3. Identifying Victims

It can be difficult to identify victims of modern slavery; they are often reluctant to come forward, may not recognise themselves as victims or, because they are scared, they may tell their stories with obvious mistakes or having left some information out.

Some adults are more vulnerable to becoming victims of modern slavery, including:

• young men and women;
• pregnant women;
• former victims of modern slavery (including people who do not consent to enter the National Referral Mechanism, see Section 5), who may be at risk of being re-trafficked;
• people who are homeless or at risk of becoming homeless;
• people with drug and alcohol issues;
• people who have learning difficulties, disabilities, communication difficulties, chronic developmental or mental health disorders or other health issues;
• people who have experienced abuse before;
• people in some deprived / poor areas where there are few job opportunities are more likely to be recruited by traffickers, pretending to be recruitment agencies / genuine employers;
• people struggling with debt;
• people who have lost family or suffered family breakdown or have limited support networks;
• people with criminal records who employers may not want to take on;
• illegal immigrants who are not allowed to work and therefore do not have an income;
• older people who are lonely and do not have much money;
• people who speak no or very little English and / or cannot read or write in their own language;
• overseas domestic workers.

3.1 Signs to look out for

Victims of modern slavery can be found anywhere. However, there are certain industries where they are more likely to be found such as nail bars, car washes, food preparation / processing factories, domestic service, farming and fishing, building sites and the sex industry.

The Modern Slavery Statutory Guidance (Home Office) provides the following indicators:

3.1.1 General indicators

3.1.2 Physical indicators

• Physical injuries – with no clear explanation as to how or when they got the injuries or which are either not treated or only partly treated, or there may be lots of / unusual scars or broken bones which have healed.
• Work related injuries – often through having poor or no personal protective equipment and health and safety arrangements.
• Physical consequences of living in captivity, neglect or poor environmental conditions – for example, infections including tuberculosis (TB), chest infections or skin infections, malnutrition and vitamin deficiencies or anaemia.
• Dental problems – from physical abuse and / or not being able to see a dentist.
• Worsening of existing long term medical conditions – these may be untreated (or poorly treated) conditions such as diabetes or high blood pressure.
• Being disfigured – cutting, burning, or branding someone’s skin may be used as punishment or a way to show that an exploiter ‘owns’ the person.
• Pain after a surgical operation – infection or scarring from organ harvesting, particularly of a kidney.

3.1.3 Psychological indicators

• Expression – they may seem in fear or anxious.
• Depression – they may have a lack of interest in getting involved in activities, in socialising with other people or appear to feel hopelessness.
• Attachment and identity issues – they can become detached from other people or become over-dependent (or both). This can include being dependent on their exploiters.
• Unable to control emotions – for example they may often swing between sadness, forgiveness, anger, aggression, frustration and / or emotional detachment or emotional withdrawal.
• Difficulties with relationships – they may have difficulty trusting others (either have a lack of trust or be too trusting) which causes difficulties in their relationships and difficulties assessing warning signs in their relationships.
• Loss of independence – for example they may have difficulty in making simple decisions, tendency to give in to the views / desires of others.

 3.1.4 Situational and environmental indicators

• Exploiters keep victims’ passports or identity documents, contracts, any payslips, bank information or health records.
• They have a lack of information about their rights as a visitor in the UK or a lack of knowledge about the area in which they live in the UK.
• They act as if they are being coerced or controlled by another person.
• They may go missing for periods.
• They may be fearful and emotional about their family or dependents.
• They may have limited spoken English, for example only being able to talk about being exploited and not being able to have any other topic of conversation.
• They may be limited in where they can go (victims may not be ‘locked up’ but are not able to move around freely) or being held in isolation.
• They may have their wages withheld (including deductions from wages).
• Debt bondage – they may have to work until they have paid off a debt to the traffickers / exploiters.
• They may have abusive working and / or living conditions, including having to work a lot of overtime.

3.2 Impact on victims

Victims of modern slavery are forced, threatened or deceived into situations of humiliation and being under the control of their exploiters, which undermines their personal identity and sense of self. The impact of these experiences can be devastating.

It is important for all professionals to understand the specific vulnerability of victims of modern slavery and use practical, trauma-informed methods of working which are based upon basic principles of dignity, compassion and respect and which recognise the impact of trauma on the emotional, psychological and social wellbeing of people.

Victim’s voices must always be heard, and their rights respected.

4. Reporting Concerns

4.1 Taking action

When responding to concerns of modern slavery,  the safety, protection and support of the potential victim must be the first priority. They may need emergency medical care. Only independent interpreters should be used. Never use any other adults who are with potential victims, as they may (unknown to the member of staff) be associated with the exploiters and therefore may not tell the truth about the person’s situation.

4.1.1 Immediate risk of harm

If it is suspected that someone is in immediate danger, the police should be contacted on 999.

4.1.2 No immediate risk of harm

There are a number of options that can be taken:

• the police can be contacted on 101;
• the Modern Slavery helpline can be contacted: 0800 0121 700.

4.1.3 Adult Social Care

Victims of modern slavery are often adults who are at risk of, or who are experiencing, abuse or neglect, particularly when they have been rescued from a situation of exploitation. In this instance, it should be considered whether a Section 42 (safeguarding) enquiry is required. When making a safeguarding referral, the cooperation of the adult victim should be requested, taking into account their needs and wishes.

Even where an adult has been removed from a harmful situation, they can be at risk of re-victimisation. Even if there is no immediate risk relating to safety or the person’s welfare, it is important to discuss any concerns with the safeguarding adults team.

4.2 Seeking advice

Advice about what action to take can be sought from your manager, the safeguarding adults team, the local police public protection unit (contactable via the police switchboard) or the Modern Slavery Helpline.

5. National Referral Mechanism and the Duty to Refer

For further guidance and the online referral forms see:

• Modern Slavery Victims: Referral and Assessment Forms (gov.uk)

The National Referral Mechanism (NRM) provides a framework for identifying and referring potential modern slavery victims and ensuring they receive appropriate support.

Support for adult victims may include:

• access to legal aid for immigration advice;
• access to short-term Government-funded support through the Modern Slavery Victim Care Contract (accommodation, material assistance, translation and interpretation services, counselling, advice, etc);
• outreach support if already in local authority accommodation or asylum accommodation;
• assistance to return to their home country if not a UK national.

5.1 Referral or Duty to Notify

An online referral system is used for making referrals into the NRM and also for Duty to Notify (DtN) referrals.

Referrals into the NRM can only be made by staff who work for designated ‘first responder’ organisation – this includes local authorities (see Appendix 1 below).

Whether a DtN referral or referral into the NRM is made depends on obtaining the consent of the adult victim.

For an adult to be referred to the NRM, they must provide informed consent. This means they should understand what the NRM is, what support it can provide, and what the possible outcomes are if they are referred.

It should be presumed that an individual has the mental capacity to make a decision about whether to consent to entering the NRM. When there may be concern about a person’s mental capacity to make a decision about whether or not to consent to entering the NRM, steps should be taken to try to support them to make the decision. Where a person does not have the capacity to consent, a best interests decision should be taken. Before a decision is taken in the best interests of an individual, it is vital to consult with any other agencies involved in the care and support of the individual. See Mental Capacity chapter.

If the adult does not consent to a NRM referral, a DtN referral should always still be made, using the online referral form.

5.2 Support for potential victims who do not consent

Adult potential victims who choose not to enter the NRM may still be eligible for other state support. They may still be:

• in immediate risk of harm, in which case the police should be contacted by calling 999;
• eligible for housing support through the local authority or for other support from the government where they have recourse to public funds;
• entitled to make a claim for asylum or another type of immigration status or stay in asylum support if they have an active claim (where the person does not have the right to reside in the UK);
• able to receive emergency medical care;
• at risk of further exploitation, see Section 4.1.3, Adult Social Care.

6. Further Reading

6.1 Relevant information

Modern Slavery and Exploitation Helpline – free confidential advice in over 200 languages

Modern Slavery Statutory Guidance – How to Identify and Support Victims (Home Office) 

Modern Slavery Training Resource Page (Home Office) 

Modern Slavery Resources (Home Office)

Appendix 1: NRM First Responder Organisations and Responsibilities

In England and Wales, a ‘first responder organisation’ is an authority that is authorised to refer a potential victim of modern slavery into the National Referral Mechanism. The current statutory and non-statutory first responder organisations are:

• police forces;
• certain parts of the Home Office; UK Visas and Immigration, Border Force, Immigration Enforcement and National Crime Agency;
• local authorities;
• Gangmasters and Labour Abuse Authority (GLAA);
• Salvation Army;
• Migrant Help;
• Medaille Trust;
• Kalayaan;
• Barnardo’s;
• Unseen;
• NSPCC (CTAC);
• BAWSO;
• New Pathways;
• Refugee Council.

First responder organisations have the following responsibilities – it is for the organisation to decide how it will discharge these responsibilities:

• identify potential victims of modern slavery and recognise the indicators of modern slavery;
• gather information in order to understand what has happened to victims;
• refer victims into the NRM via the online process (in England and Wales this includes notifying the Home Office if an adult victim doesn’t consent to being referred – DtN);
• provide a point of contact for the competent authority to assist with the Reasonable and Conclusive Grounds decisions and to request a reconsideration where a first responder believes it is appropriate to do so.

Audio & Quick Read Summary

1. Introduction

Data protection legislation should not be seen as an obstacle to sharing information, but as a framework of best practice which helps to ensure that when the local authority uses, records and shares information it does so safely and in a way which is transparent and in line with the law.

The local authority collects, uses, stores and retains (for specified time periods) information about people with whom it works. This includes:

• adults and their families who use the service, including their families and any children, and those who no longer in receipt of services;
• current, past and prospective staff; and
• current, past and prospective staff; and
• suppliers.

When processing data in this way, the local authority must comply with the requirements of the Data Protection Act 2018 (DPA) and the UK General Data Protection Regulation (UK GDPR) (see Section 2, Legislation).

It must also ensure, through its procedures and working practices, that all employees, contractors, consultants, suppliers and partners who have access to any personal data held by or on its behalf, are fully aware of and abide by their duties and responsibilities under data protection legislation. Any contracts with service providers must be clear about the different parties’ responsibilities for data processing and information sharing.

Personal information must be handled and dealt with in accordance with data protection legislation however it is collected, recorded, stored and used, and whether it be on paper, on computer or digital records or recorded in any other way.

In addition, the local authority may also be required to collect and use information in order to comply with the requirements of central government, such as in the case of a Safeguarding Adults Review or Care Quality Commission inspection.

2. Legislation

2.1 Data Protection Act 2018

The Data Protection Act 2018 aims to ensure that UK data protection legislation keeps pace with technological changes, and the impact these have had on the collection and use of personal data.

The Act provides additional functions and clarification of the role of the Information Commissioner and the Information Commissioner’s Office.

2.2 UK General Data Protection Regulation

The UK GDPR is the UK General Data Protection Regulation (UKGDPR) sets out the key principles, rights and obligations for most processing of personal data (see UK GDPR: Guidance and Resources, ICO).

The UK GDPR:

• gives individuals greater control of their data by improving consent processes; and
• introduced the ‘right to be forgotten’ which enables the data subject to have their data ‘forgotten’ once it is no longer being used for the purpose which it was collected. This is not an absolute right, however; it applies only to data held at the time the request is received. It does not apply to data that may be created in the future.

If staff receive a query about the collection or processing of personal data, they should contact the Knowlsey Information Governance team for advice.

3. Principles of Data Protection: Article 5 GDPR

Anyone processing personal data must comply with the principles laid down in the DPA and UK GDPR.  These are legally enforceable and require that when personal data is processed (see also Section 3.2, What is personal data under Article 4?) it must be:

• lawful and fair and carried out in a transparent manner in relation to the data subject. (lawfulness, fairness and transparency principle);
• specified, explicit and legitimate and not further processed for other purposes incompatible with those purposes (purpose limitation principle);
• adequate, relevant and not excessive to what is necessary in relation to the purposes for which data is processed (the data minimisation principle);
• accurate and kept up to date (the accuracy principle);
• kept for no longer than is necessary for the purposes for which the personal data is processed (the storage limitation principle); and

• stored in a way that ensures appropriate security including protection against unauthorised or unlawful processing and accidental loss, destruction or damage, using appropriate technical or organisational measures (the integrity and confidentiality principle and the accountability principle).

3.1 Handling personal data and sensitive personal data

The DPA outlines conditions for the processing of personal data, and makes a distinction between personal data and sensitive personal data.

Personal data is any information relating to a living person who can be identified or who is identifiable, directly from that information, or who can be indirectly identified from that information in combination with other information.

3.2 What is personal data under Article 4 GDPR?

Personal data is:

• any information relating to an identified or identifiable natural person such as;
  • a name;
  • an identification number;
  • location data;
  • an online identifier such as an IP address or cookies; or
  • an email address.

3.3 Special categories of data (sensitive personal data):  GDPR Article 9

Special category data is personal data that needs more protection because it is sensitive. It includes personal data which reveals:

• racial or ethnic origin;
• political opinion;
• religious or other beliefs;
• trade union membership;
• physical or mental health or conditions;
• sexual life or sexual orientation.

3.4 Identifying a lawful basis for sharing information

Article 6 of the UK GDPR providers practitioners with a number of lawful bases for sharing information. At least one of these must apply whenever personal data is processed,

Where practitioners need to process and share special category data (sensitive personal data), they need to identify both a lawful basis for processing under Article 6 of the UK GDPR and a special category condition for processing in compliance with Article 9 (see A Guide to Lawful Basis, Information Commissioner’s Office).

4. Data Protection Practice

The local authority must:

• observe fully conditions regarding the fair collection and use of personal information;
• meet its legal obligations to specify the purpose for which information is used;
• collect and process appropriate information and only to the extent that it is needed to fulfil operational needs or to comply with any legal requirements;
• ensure the quality of information used;
• apply strict checks to determine the length of time information is held;
• take appropriate technical and organisational security measures to safeguard personal information;
• ensure that personal information is not transferred abroad without suitable safeguards;
• ensure that the rights of people about whom the information is held can be fully exercised under data protection legislation. These include:
  • the right to be informed that processing is being undertaken;
  • the right of access to one’s personal information within the statutory timescale;
  • the right to prevent processing in certain circumstances;
  • the right to correct, rectify, block or erase information regarded as wrong information.

In addition, the local authority should ensure that:

• there is someone with specific responsibility for data protection;
• everyone managing and handling personal information understands that they are contractually responsible for following good data protection practice;
• everyone managing and handling personal information is appropriately trained to do so;
• everyone managing and handling personal information is appropriately supervised;
• anyone wanting to make enquiries about handling personal information, whether a member of staff or a member of the public, knows what to do;
• queries about handling personal information are promptly and courteously dealt with;
• methods of handling personal information are regularly assessed and evaluated;
• performance with handling personal information is regularly assessed and evaluated;
• data sharing is carried out under a written agreement, setting out the scope and limits of the sharing. Any disclosure of personal data will be in compliance with approved procedures.

All employees should be aware of the local authority’s data protection policy and of their duties and responsibilities under the DPA.

All managers and staff will take steps to ensure that personal data is kept secure at all times against unauthorised or unlawful loss or disclosure and in particular will ensure that:

• paper files and other records or documents containing personal / sensitive data are kept in a secure environment;
• personal data held on computers and computer systems is protected by the use of secure passwords, which where possible have forced changes periodically;
• passwords must not be easily compromised and must not be shared with others;
• personal data must only be accessible to team members with appropriate access levels;
• data in all forms must be disposed of by secure means in accordance with local policies.

All contractors, consultants, suppliers and partners must:

• ensure that they and all of their staff who have access to personal data held or processed for or on behalf of the local authority, are aware of this policy and are fully trained in and are aware of their duties and responsibilities under data protection legislation. Any breach of any provision of the legislation will be deemed as being a breach of any contract between the local authority and that individual, partner or firm (see Report a Breach, Information Commissioner’s Office);
• allow data protection audits by the local authority of data held on its behalf (if requested);
• indemnify the local authority against any prosecutions, claims, proceedings, actions or payments of compensation or damages, without limitation.

All contractors and suppliers who use personal information supplied by the local authority will be required to confirm that they abide by the requirements of data protection legislation in relation to such information supplied by the local authority.

The local authority must also:

• ensure data subjects are given greater control of their data by improving consent processes. Consent must be freely given, specific, informed and give a clear indication of their wishes. This must be provided by a statement or clear affirmative action, signifying the individual’s agreement to the processing of their personal data;
• must ensure that data subjects have the ‘right to be forgotten’ which enables them to have their data ‘forgotten’. This is not an absolute right, however; it only applies to information which is data held at the time the request is received. It does not apply to data that may be created in the future.
• keep a record of data operations (mapping data flow within the local authority) and activities and assess if it has the necessary data processing agreements in place, and take action to remedy if not;
• carry out data protection impact assessments (DPIAs) on its products and systems;
• designate a data protection officer (DPO) for the local authority;
• review processes for the collection of personal data;
• be aware of the duty to notify the Information Commissioner’s Office of a data breach (the relevant supervisory authority);
• ensure ‘privacy by design’ and ‘privacy by default’ in new products (such as a new case recording system) and assess whether existing products used by the local authority meets the new data protection standards and take action accordingly to ensure compliance.

5. Redaction of Third Party Data

Before sharing information, the local authority must redact (or remove) personal data relating to third parties, to protect their privacy. For example, where social work records include references to other people, such as the adult’s family and friends, it is like some of this information will need to be withheld (redacted) before the record can be shared.

Under the Data Protection Act, it is for each local authority to weigh up how ‘reasonable’ it is to share another person’s information in each case (for example it may be reasonable to share information about another family members’ health condition if is likely to be hereditary). The Act is clear however that any person who appears in records because they were employed to provide care or received payment for providing a service, or acted in an official capacity, should not be treated as ‘third party’. This means that the names and information of social workers and other professionals should not be redacted.

6. Rights of the Data Subject

Any person whose information is being processes by the local authority has the following rights:

1. to be informed of data processing (for example a privacy notice);
2.  to be able to access information free of charge (also known as a Subject Access Request) – there is a one month time limit for the local authority to respond to any request;
3. to have inaccuracies corrected;
4. to have information erased (although this is not an absolute right);
5. to restrict processing;
6. to have data portability;
7. intervention in respect of automated decision making;
8. to be able to withdraw consent;
9. to complain to the Information Commissioner’s Office (ICO).

6.1 Right to be informed (section 44 DPA)

A person whose information is being processed should have access to a privacy notice (available on the council website), setting out:

1. lawful basis for processing;
2. contact details for the Data Protection Officer (DPO);
3. what information will be processed;
4. who it will be shared with and why;
5. how long it will be held;
6. details of rights;
7. how to complain.

6.2 Rectification (Section 46 DPA)

A person whose information is being processed has the following rights:

• to rectify or correct inaccurate information;
• if information is incomplete it must be completed;
• rectification or correction can be achieved by the provision of a supplementary statement;
• where the rectification is of information maintained for the purposes of evidence, instead if rectifying, the processing should be restricted;
• be informed in writing if request has been granted and if not the reasons for this.

7. Action if there is a Data Breach

A breach of security which can be either accidental, deliberate or unlawful and can involve:

• destruction;
• loss;
• alteration;
• unauthorised disclosure;
• unauthorised access.

A breach covers accidental and deliberate causes and is more than just losing personal data.

7.1 Examples of data breaches

These are commonly occurring breaches:

• access by an unauthorised party, including a third party;
• deliberate or accidental action (or inaction) by a controller or processor;
• sending personal data to an incorrect recipient;
• computing devices containing personal data being lost or stolen;
• alteration of personal data without permission; and
• loss of availability of personal data.

7.2 What constitutes a serious data breach?

A serious data breach:

• is where it is likely to result in a risk to the rights and freedoms of individuals. If unaddressed such a breach is likely to have a significant detrimental effect on individuals – for example, result in discrimination, damage to reputation, risk of physical harm, financial loss, loss of confidentiality or any other significant economic or social disadvantage;
• must be assessed on a case by case basis;
• must consider these factors: detriment / nature of data / volume (detriment includes emotional distress as well as both physical and financial damage).

All serious data breaches must be reported to the ICO within 72 hours of becoming aware of the breach. See UK GDPR Data Breach Reporting (ICO) for further information.

8. Further Reading

8.1 Relevant chapters

Information Sharing and Confidentiality

Case Recording

8.2 Relevant information

Guide to Data Protection: for Organisations (Information Commissioner’s Office)

Working from Home (Information Commissioner’s Office) 

ePractice

1. Introduction

The Mental Health Act (MHA) is the current law which provides legal powers for the admission, detention and treatment of a person against their will in respect of mental illness. Where a person is detained against their will this is commonly known as ‘being sectioned’.

The MHA is an extensive legislative framework about which this chapter provides an introduction and basic details of the most commonly known and used sections within the adult social care remit.

The MHA1983 was reformed in 2007 which saw a number of key changes to the original Act which placed a larger focus on public protection and risk management. The 2007 amendments were exactly that and the main body of the 1983 Act remains in place, as such the MHA may be referred to as the Mental Health Act 1983 (2007). See Appendix 1: 2007 Amendments to the 1983 Act for information about changes to the original legislation.

2. Who does the Mental Health Act 1983 apply to?

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
• people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or MCA to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguard in place; otherwise a person cannot be subject to the two frameworks at the same time. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

3. Parts of the Act

The Mental Health Act 1983 is split into ten parts:

1. The Application of the Act;
2. Compulsory Admission to Hospital and Guardianship;
3. Patients Concerned in Criminal Proceedings or Under Sentence;
4. Consent to Treatment;
5. Treatment of Community Patients not Recalled to Hospital;
6. Mental Health Review Tribunals;
7. Removal and Return of Patients Within the United Kingdom;
8. Management of Property and Affairs of Patients;
9. Miscellaneous Functions of Local Authorities and Secretary of State;
10. Offences; and also
11. Miscellaneous and Supplementary.

These parts are the ones most commonly used and key to adult social care practice:

• Compulsory Admission to Hospital and Guardianship;
• Miscellaneous Functions of Local Authorities and Secretary of State;
• Miscellaneous and Supplementary

Further detail about each section is outlined below.

4. Part 2: Compulsory Admission to Hospital and Guardianship

4.1. Section 2 Admission for Assessment

This allows for:

• a person to be detained in hospital for assessment of their mental health;
• treatment to be forcibly administered as part of the assessment period (excluding use of Electro-Convulsive Therapy – ECT);
• a detention period of up to 28 days, however discharge can be arranged sooner.

Section 2 cannot be renewed. If further detention is required beyond the 28 day period, assessment under section 3 should be considered. In certain cases where there may be issues relating to a person’s nearest relative, Section 2 can be extended by the powers of the Court until such decision regarding the nearest relative are resolved.

4.1.1 Criteria

For a person to be detained under section 2 they must have:

• been assessed by two doctors – one of whom must be section 12 approved. It is preferable that at least one of the doctors involved in the assessment has previous acquaintance with the person being assessed;
• both doctors need to be of the opinion that compulsory admission is required and must complete a medical recommendation;
• there must be no longer than five clear days between each of the medical assessments, for example if an examination is completed on a Monday, the five days are not inclusive of this day (meaning Tuesday to Saturday are clear days therefore Sunday is the last possible day for the second medical examination);
• the Approved Mental Health Professional (AMHP) must be in agreement with the two doctors’ recommendations and have completed a valid application for admission;
• the AMHP must complete the application for admission within 14 days of the latter dated medical recommendation;
• a person’s nearest relative is also able to make an application for admission.

4.1.2 Appeal

Patients have the right to appeal against the detention within the first 14 days.

4.2 Section 3: Admission for treatment

For a person to be detained under section 3 the criteria for section 2 must all be met. Section 3 can be used where a person is well known to mental health services and it is clear what illness is to be treated and therefore no assessment period is required.

Alternatively, it may be used due to the need for continued detention after the 28 day period of section 2.

4.2.1 Provisions

The Act allows the following provisions:

• a person to be detained in hospital for treatment of their mental health. Appropriate medical treatment must be available;
• forcible administration of treatment (excluding use of ECT. Where there is non-compliance with medication this will need to be reviewed by a second opinion appointed doctor (SOAD) after three months.;
• a detention period of up to six months, after which it can be renewed for a further six months and on a 12 monthly basis thereafter.

4.2.2 Appeal

Patients have the right to appeal against the detention within the first six months.

Please also see Section 117 Aftercare.

4.3 Section 4 – Admission for Assessment in case of emergency

4.3.1 Criteria

Section 4 is used in emergency situations where is it deemed not practicable to arrange two doctors and assess under section 2.

Unlike assessment for sections 2 and 3 there needs only to be one doctor involved – preferably one whom previous acquaintance. An AMHP is still required to make an application.

4.3.2 Provisions

The Act allows the following provisions:

• detention period of up to 72 hours following which further assessment by a second doctor should be arranged and the decision made whether to detain under section 2 or to arrange discharge;
• treatment can be refused, however where there is concern regarding capacity to consent, treatment can be provided in the best interests of the individual detained. It can also be provided where it is necessary to prevent harm to themselves or to others.

4.3.3 Appeal

There is no right of appeal against section 4.

4.4 Section 5: Application in respect of a patient already in hospital (holding powers)

The Act:

• provides powers to doctors and nurses to prevent a person from leaving hospital where by doing so there may be a risk posed to the individual themselves or to others as a result of the individuals mental health;
• may be used to prevent informal patients from leaving a mental health ward or prevent a person from leaving a general ward where they may be receiving treatment for a physical condition.

There are two parts to section 5 which are outlined below.

4.4.1 Section 5(2)

This is often referred to as doctor’s holding powers. The provisions are:

• it gives the doctor in charge of the individuals the power to detain for up to 72 hours;
• further assessment by an AMHP and second doctor should be arranged as soon as possible and the decision made whether to detain under a section of the M HA or to arrange discharge;
• section 5(2) cannot be renewed.

4.4.2 Section 5(4)

This is often referred to as nurse’s holding powers. The provisions are:

• it gives certain nurses the power to detain for up to six hours;
• a doctor should be requested to attend as soon as possible;
• section 5(4) ends when the doctor arrives. The doctor must assess if the person can be transferred onto section 5(2) or whether the person can remain on an informal basis;
• section 5(4) cannot be renewed.

4.5 Section 7: Application of Guardianship Order

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live. However in doing so they cannot unlawfully deprive the person of their liberty. Where restrictions amount to a deprivation, authorities should seek to apply for a DoLS authorisation to run concurrent with the Guardianship Order (see Deprivation of Liberty Safeguards).

The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live.

Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment.

It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf (see also Interface between Mental Capacity Act and Mental Health Act).

4.6 Section 17: Leave of absence from hospital

The Act makes the following provisions:

• the Responsible Clinician (RC) to grant a detained patient leave of absence from hospital;
• leave can be provided as escorted or unescorted and the time allowed is controlled by the RC;
• leave can be used to allow a person to have home leave including overnight stays and can often be useful to trial how a person is likely to function in the community when discharged from hospital.

A person is still a detained patient when section 17 is in place.

4.7 Section 17A: Community Treatment Orders

Community Treatment Orders (CTO’s) are used to support people in the community that have mental health needs and require continued treatment under supervision.

The aim of the community treatment or was to reduce the number of ‘revolving door’ patients who would typically become non-compliant with treatment once discharged from hospital, and as a result experience deterioration in their mental state often resulting in further admission.

The provisions are:

• CTO’s can only be used where a person is detained under section 3, 37, 45A, 47 or 48;
• a CTO allows for conditions to be attached to a person’s discharge;
• any individual considered for a CTO should have a degree of understanding in relation to the conditions attached as they must comply with these conditions in order to avoid recall to hospital;
• CTO timeframes mirror those of Section 3, that is six months, six months, annual;
• an AMHP needs to be in agreement with the proposal of a CTO before it can be enforced.

4.8 Section 26: Nearest Relative

The MHA provides safeguards to those who are detained, one of these being the role of the nearest relative (NR).

The NR is different from next of kin and is identified using the list below;

• husband, wife or civil partner;
• son or daughter;
• father or mother;
• brother or sister;
• grandparent;
• grandchild;
• uncle or aunt;
• niece or nephew.

Determining a person’s NR can at times be complex, however to simplify it whoever appears first in the above list in defaults to the role.

The NR must be over 18 (unless husband, wife or civil partner) and where there are both parties available, for example mother and father, the eldest would fulfil the role.

The NR has the right to request that a MHA assessment is completed; they are able to make an application for detention and can also request that their relative is discharged from hospital.

An identified NR can be displaced by the courts if it is deemed that they are unsuitable. The NR is also able to delegate the role and function.

Part 9: Miscellaneous Functions of Local Authorities and the Secretary of State

5.1 Section 117 Aftercare: Introduction

See also Section 117 Aftercare

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Integrated Care Boards to provide aftercare services for anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under section 17 and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA (see Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983).

As Section 117 enforces a duty on the local health authority and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as with clear evidence is provided of their detention.

6. Part 11: Miscellaneous and Supplementary

6.1 Section 135: Warrant to search and remove to a place of safety

6.1.1 Section 135 (1)

The provisions are:

• professionals have the power of entry to a person’s private dwelling for the purpose of assessment under the MHA;
• for entry to be gained by force if required under the powers of a warrant issued by the county court;
• for a person to be removed to a place of safety for the purpose of assessment or where appropriate, remain in their own home.
• an AMHP, a police officer and a doctor is required to be present for the execution of a 135 (1) warrant.

6.1.2 Section 135 (2)

The provisions are:

• for forcible entry if required to access a person who is liable to be detained under the MHA or who need to be retaken to hospital (for example if they have gone absent without leave from the ward when detained and have returned home and refusing to allow entry);
• a warrant is again required to act out these powers of entry, however an AMHP or doctor is not required to execute the warrant under this section.

6.1.3 Section 136: Removal of mentally disordered persons without a warrant – police powers of detention

The provisions are:

• section 136 is an emergency power which allows police officers to remove a person from a public place to a place of safety for the purpose of further assessment under the MHA where there are concerns that a person may be suffering from mental illness and in need of immediate care and / or control. The timeframes of section 136 were reduced from 72 to 24 hours in December 2017;
• if a person is initially seen by a doctor before the AMHP has coordinated a full assessment and it is deemed that there is no evidence of mental illness, the person must be discharged from the 136 immediately;
• a person can be discharged with or without follow up from services once assessed or may be detained under the MHA.

7. Further Reading

7.1 Relevant chapters

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

Section 117 Aftercare

Defining Mental Disorder

Ordinary Residence

7.2 Relevant information

Mental Health Act 1983

Mental Health Act 1983 Code of Practice

Appendix 1: 2007 Amendments to the Mental Health Act 1983

1. Key amendments

The key amendments to the Act were as follows.

The Fundamental Principles – Section 118 of the Act says that the Code of Practice (which was given legal stature as part of the reform) must provide a statement of principles to inform all decision making within the remit of the mental health act.

Chapter 1 of the Code of Practice for England outlines the following guiding principles:

• purpose principle;
• least restriction principle;
• respect principle;
• participation principle;
• effectiveness, efficiency and equity principle.

Section 1: Definition of mental disorder – The definition of mental disorder in Section 1 of the Act was split into 4 classifications; psychopathic disorder, mental illness, mental impairment and severe mental impairment.

The 2007 Act broadened the term of mental disorder as below:

“mental disorder” means any disorder or disability of the mind.

Prior to the changes to the Act there were grounds to detain those with Learning Disability under mental impairment and severe mental impairment. The amendment now makes clear that the disability itself does not meet the criteria for detention unless it is:

“associated with abnormally aggressive or seriously irresponsible conduct on his part”

2. Professional roles

The role of the Approved Social Worker (ASW) was opened up to healthcare professionals including nurses, occupational therapists and psychologists. It was renamed the Approved Mental Health Professional (AMHP).

The role of the Responsible Medical Officer (RMO) became that of the Responsible Clinician (RC).

Supervised Discharge /Community treatment Orders – Section 25A Supervised Discharge of the 1983 Act was abolished other than for those already subject to it and was replaced with the introduction of section 17A Community Treatment Orders (CTO’s).

Introduction of Appropriate Medical Treatment – The 1983 Act stated that treatment had to be likely to be effective upon a person’s condition which allowed for a greater degree of detentions to take place, whereas the Act now concurs that treatment is only to be provided where there is purpose outlining that the purpose of any treatment is to:

“alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (section 145).

The definition of medical treatment was also changed itself to outline that medical treatment can be provided in the absence of medical supervision.

Those of 16 and 17 years of age and Parental Responsibility – The 2007 Act introduced the notion that any person aged 16 or 17 who is deemed to have capacity cannot be detained on basis of parental consent – outlined in section 131 MHA.

Appendix 2: The Policing and Crime Act 2017

Further to the 2007 Amendments to the MHA 1983, the introduction of the Policing and Crime Act 2017 has more recently had an impact on the application of the Act. The

Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983 published by the Home Office and Department of Health usefully outlines these changes as below:

• section 136 powers may now be exercised anywhere other than in a private dwelling;
• it is now unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;
• a police station can now only be used as a place of safety for adults in specific circumstances, which are set out in regulations;
• the previous maximum detention period of up to 72 hours has been reduced to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);
• before exercising a section 136 power police officers must, where practicable, consult one of the health professionals listed in section 136(1C), or in regulations made under that provision;
• a person subject to section 135 or 136 can be kept at, as well as removed to, a place of safety. Therefore, where a section 135 warrant has been executed, a person may be kept at their home (if it is a place of safety) for the purposes of an assessment rather than being removed to another place of safety;
• a new search power allows police officers to search persons subject to section 135 or 136 powers for protective purposes.

1. Introduction

If a person has been assessed as lacking capacity, any action taken or any decision made or on behalf of that person, must be made in their best interests. This is the fourth principle of the five principles of the Mental Capacity Act 2005 (MCA) (see Mental Capacity).

The person who has to make the decision is known as the ‘decision maker’. The decision maker is usually the person closest to the decision, that is a clinician for healthcare decisions, social worker for social care decisions and a carer for day to day care decisions.

2. What are ‘Best Interests’?

The law requires a number of factors to be considered when deciding what is in the best interests of a person who lacks capacity. The checklist below details these factors. This list is not exhaustive and the MCA Code of Practice should be referred to for more details.

• It is important not to make assumptions about someone’s best interests merely on the basis of their age, appearance, condition or any aspect of their behaviour.
• The decision maker must consider all the relevant circumstances relating to the decision in question.
• The decision maker must consider whether the person is likely to regain capacity (for example after receiving medical treatment). If they are likely to, can the decision or act wait until then?
• The decision maker must involve the person as fully as possible in the decision that is being made on their behalf.
• If the decision concerns the provision or withdrawal of life sustaining treatment the decision maker must not be motivated by a desire to bring about the person’s death.

The decision maker must in particular consider:

• the person’s past and present wishes and feelings (in particular if these have been written down);
• any beliefs and values of the person (for example religious, cultural or moral) that would be likely to influence the decision in question and any other relevant factors.

As far as possible, the decision maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacks mental capacity, especially:

• anyone previously named by the person lacking capacity as someone to be consulted;
• carers, close relatives or close friends or anyone else interested in the person’s welfare;
• any attorney appointed under a Lasting Power of Attorney (LPA);
• any deputy appointed by the Court of Protection to make decisions for the person;
• the Independent Mental Capacity Advocate (IMCA), if appointed (see Independent Mental Capacity Advocate Service chapter).

The decision maker must take the above steps, amongst others, and weigh up the above factors when deciding what decision or course of action is in the person’s best interests.

For decisions about serious medical treatment or certain changes of accommodation and where there is no one who fits into any of the above categories, the decision maker may need to instruct an IMCA.

3. Where there is a Dispute about Best Interests

Family and friends may not always agree about what is in the best interests of an individual. Case records should record any details of disputes, must clearly demonstrate that decisions have been based on all available evidence and have taken into account all the conflicting views. If there is a dispute, the following courses of action can help in determining what is in a person’s best interests:

• involve an advocate who is independent of all the parties involved;
• get a second opinion;
• hold a formal or informal case conference;
• go to mediation;
• as a last resort, an application could be made to the Court of Protection for a ruling.

4. Recording

Comprehensive recording is key in all cases, but particularly in safeguarding adults cases which are likely to be the most complex and present the highest levels of risk. In such cases, full records of best interest decision making should be kept, including:

• how the decision about the person’s best interests was reached;
• the reasons for reaching the decision;
• who was consulted to help decide the best interests;
• what particular factors were taken into account;
• if written requests from person concerned were not followed, why not;
• the content and results of any disputes;
• what has been decided in the person’s best interests and reasons for that decision.

People lacking mental capacity have the same rights as those with capacity to have their outcomes realised. Although it may be challenging, a good best interest decision reflects the wishes, feelings, values and needs of the person.

This can also be included as an outcome measure on the safeguarding adult return forms.

5. Further Reading

5.1 Relevant chapter

Mental Capacity

5.2 Relevant Information

Determining and Recording Best Interests (39 Essex Chambers)

1. Advance Care Planning

Advance Care Planning (ACP) is a process of discussions which an adult can choose to have with their care providers about their preferences and priorities for their future care, while they have the mental capacity to be able to have such meaningful conversations. The process, which is person-centred and likely to involve a number of conversations over time, should include whoever the adult wishes to involve, including family members or friends.

The process will enable the adult to feel more involved in their care and treatment and gives them the opportunity to reflect and share with those involved what matters most to them.

The result of these discussions may include the adult deciding one, or more, of the following:

• an advance statement – of their wishes, preferences and priorities, and may include agreeing who would be their named spokesperson (see Section 2, Advance Statements);
• an Advance Decision to Refuse Treatment (see Section 3, Advance Decision to Refuse Treatment);
• nominating a person to be their Lasting Power of Attorney for health and welfare who is legally able to make decisions on their behalf, including life sustaining treatment if the adult does not have mental capacity at that time (see Section 5, Lasting Powers of Attorney, Court Appointed Deputy, Court of Protection and Office of the Public Guardian);
• treatment recommendations such as what treatment they may want in specific situations such as emergency care, needing resuscitation etc (see Section 4, Do Not Resuscitate).

1.1 Universal principles

The following are the universal principles of ACP and describe ‘what good looks like’ in advance care planning:

1. The adult is central to developing and agreeing their advance care plan including deciding who else should be involved in the process.
2. The adult has personalised conversations about their future care, focused on what matters to them and their needs.
3. The adult agrees the outcomes of their advance care planning conversation through a shared decision making process in partnership with relevant professionals.
4. The adult has an advance care plan which records what matters to them and their preferences and decisions about future care and treatment, that they can share with others.
5. They have the opportunity, and are encouraged, to review and revise their advance care plan.
6. Anyone involved in the adult’s advance care planning process is able to speak up if they feel that these universal principles are not being followed.

2. Advance Statements

An advance statement is a written statement that sets down a person’s preferences, wishes, beliefs and values regarding their future care. Its aim is to provide a guide to anyone who might have to make decisions in the person’s best interests if they lose the ability to make or communicate decisions.

A health or social care professional making a best interests decision on behalf of an adult who lacks mental capacity must take into account any advance statement that has been made, as laid down in the Mental Capacity Act (MCA). However, the advance statement is an expression of the person’s preferences and is not legally binding for a health or social care professional.

It may be difficult to challenge a healthcare professional’s decision to disregard the adult’s wishes, because they can argue they have  considered the advance statement but were acting in the person’s best interests (see Best Interests chapter).

3. Advance Decision to Refuse Treatment

An advance decision is different from an advance statement. An advance decision is a document which contains a statement that stands even if the person’s life is at risk, such as where the person has refused life sustaining (continuing) treatment. This is laid out in the MCA.

The advance decision is designed to express the desires of a person who may later lack mental capacity to refuse all or some medical treatment, and overrides the best interests test. It is legally binding provided the criteria described in the MCA are met.

In relation to refusal of treatment, the advance decision must be:

• can only apply to refusal of treatment;
• must be written;
• must be made when the person has capacity;
• must be made by a person who is over the age of 18 years and it has been witnessed.

The MCA says the advance decision is not applicable to life sustaining treatment unless:

“it contins a statement … that it is to apply … even if the life is at risk” when the refusal relates to life sustaining treatment (MCA Part 1 section 25(5) (a)). The advance decision is not binding if the circumstances it describes are not explicit.

An advance decision is not applicable to life sustaining treatment if:

• the treatment is not the treatment specified in the advance decision;
• any circumstances specified in the advance decision are not present;
• there are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of they made the advance decision and which would have affected their decision had they anticipated them (MCA Part 1 Section 25 (4)).

An advance decision is not valid if the person:

• withdraws the advance decision when they have mental capacity;
• has created a lasting health and welfare Power of Attorney after the advance decision was made which gives the attorney power to make decisions regarding life sustaining treatment (see Section 5, Lasting Powers of Attorney, Court Appointed Deputy, Court of Protection and Office of the Public Guardian);
• has done something which is clearly inconsistent with the decision.

Practitioners should be clear that advance decisions are different from advance statements.

3.1 End of life

At end of life, the best interest test applies when a patient does not have the mental capacity to make their own decisions (see Best Interests chapter). This can be a result of losing mental capacity (see Mental Capacity and Code of Practice chapter), or through a loss of consciousness (temporary or permanent). It will cover decisions relating to palliative care (in the case of serious or life-threatening disease) and withdrawing treatment.

In the absence of a legitimate advance decision or health and welfare Lasting Power of Attorney (LPA), the decision on which treatments should or should not be provided should be made by the healthcare professionals, not the person’s relatives.

The healthcare professional must decide what is in the person’s best interests, taking all the relevant medical and non-medical circumstances into account.

4. Do Not Resuscitate

See also Advance Decision (NHS) 

DNACPR stands for do not attempt cardiopulmonary resuscitation. DNACPR is sometimes called DNAR (do not attempt resuscitation) or DNR (do not resuscitate) but they all refer to the same thing.

Everyone has the right to refuse CPR if they do not want to be resuscitated, if they stop breathing or their heart stops beating.

Where a do not resuscitate decision has been made in advance, it will recorded on a special form and kept in the person’s medical records. A DNACPR order is not permanent; it can be changed at any time.

People’s views and wishes may also be recorded in their LPA (see Section 5, Lasting Powers of Attorney, Court Appointed Deputy, Court of Protection and Office of the Public Guardian below) or advance decision documents (see Section 3, Advance Decisions).

People who have a serious illness or are undergoing surgery that could cause respiratory or cardiac arrest, should be asked by a member of the medical team about their wishes regarding CPR if they have not previously made their wishes known. This should take place before they have surgery.

People should always be advised to discuss such decisions with their family or other carers, so that it is not a surprise to them should the situation arise.

If the person does not have the mental capacity to decide about CPR when a decision needs to be made (see Mental Capacity and Code of Practice chapter) and have not made an advance decision to refuse treatment, the healthcare team should consult with their next of kin about the person’s wishes so a decision can be made in their best interests (see Best Interests chapter).

Medical staff have a legal duty to consult and involve patients in a decision to place a ‘Do Not Resuscitate’ (DNR) order on a their medical notes. Patients should always be involved in a DNR decision. There must be a convincing reason not to involve the patient, otherwise a failure to consult with them may breach their human rights. Causing potential distress to a patient is not a good enough reason not to consult with them.

5. Lasting Powers of Attorney, Court Appointed Deputy, Court of Protection and Office of the Public Guardian

5.1 Lasting Power of Attorney

Any person who has the mental capacity to understand the nature and implications of doing so may appoint another person/s to look after their affairs on their behalf. This power may be changed by the donor (the person) at any time.

A Lasting Power of Attorney (LPA) is a legal document which allows an adult to appoint an attorney/s to act on their behalf if they should lose mental capacity in the future. It enables the person to instruct an attorney to make decisions about their property and affairs and / or health and welfare decisions. Attorneys, in this case, can be family members or friends, who have to be registered with the Office of the Public Guardian. See Make, Register or End a Lasting Power of Attorney (gov.uk)

5.2 A Court Appointed Deputy and the Court of Protection

A Court Appointed Deputy is appointed by the Court of Protection (CoP). The Court of Protection has the the authority to make decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made (because they lack mental capacity). Depending on the terms of their appointment, Court Appointed Deputies can take decisions on welfare, healthcare and financial matters as authorised by the CoP but they are not able to refuse consent to life sustaining treatment (see Section 2, Advance Decision to Refuse Treatment).

Any decisions made by the CoP can be challenged; for example where it is believed that a deputy is not acting in the best interests of the person they are representing and there are safeguarding concerns as a result.

5.3 Office of the Public Guardian

The Office of the Public Guardian (OPG) is the body which registers authority for LPA’s and court appointed deputies. It supervises deputies appointed by the CoP and provides information to help it make decisions. The OPG also works with other agencies, for example the police and adult social care, to respond to any concerns raised about the way in which an attorney or deputy is behaving.

5.4 Abuse by an Attorney or Deputy

If someone has concerns about the actions of an attorney who is a registered LPA or a deputy appointed by the CoP, they should contact the OPG. The OPG can investigate the actions of a deputy or attorney and can also refer concerns to other relevant agencies. For more information, see Report a Concern about an Attorney, Deputy or Guardian (gov.uk).

6. Further Reading

6.1 Relevant chapters

Mental Capacity

Best Interests

6.2 Relevant information

Court of Protection

Office of the Public Guardian

Universal Principles for Advance Care Planning (NHS)

Advance Decisions (Living Will)