The Criminal Justice and Courts Act (2015) made it a criminal offence for a care workers to ill treat or wilfully or deliberately neglect a person they are caring for.
This quick read explains what is covered by ill treatment and wilful neglect cover and what to do if you have concerns about the actions of a care worker or care provider.
Modern slavery can take many forms, and includes domestic slavery or forced labour on farms, in construction, shops, bars, the care sector, nail bars and car washes.
This quick read provides key information to help you recognise when someone might be a victim of modern slavery and to know what action to take.
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions
We statement
We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.
What people expect
When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.
I feel safe and supported to understand and manage any risks.
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.
The statutory provisions of the Care Act relevant to ordinary residence are:
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.
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.
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.
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.
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:
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:
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.
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.
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:
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.
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:
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.
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.
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.
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 rby a person 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.
Case Law
(R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31)
The Supreme Court overturned the Court of Appeal findings that first and originating local authority Worcestershire County Council had a duty to provide aftercare services rather than the second or host local authority Swindon Borough Council for an adult who had been re-detained in Swindon. The Supreme Court determined that after the person’s second discharge, Swindon had a duty to provide aftercare services, not Worcestershire. The case turned on whether the person, ‘JG’, had been “ordinarily resident…immediately before being detained” for the purposes of s 117(3)(a) of the MHA.
Worcestershire successfully argued that Swindon owed a duty to provide aftercare services, at the time of the second discharge, because the person had been ordinarily resident in Swindon immediately before the second detention. It was concluded where there had been more than one period of detention, the words ‘immediately before being detained’ must refer to the most recent period of detention. The Supreme Court found that although the person lacked mental capacity to decide where to live, the decision to live in Swindon was still made voluntarily ‘because it was the result of a choice made by those with the power to make decisions on their behalf.’ The person’s residence in Swindon was also adopted for settled purposes, therefore, they were ordinarily resident in Swindon before their second detention on its plain meaning.
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.
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.
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.
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).
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.
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.
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.
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.
KNOWSLEY SPECIFIC INFORMATION
Knowsley Advocacy Hub Client Leaflet
Knowsley Advocacy Hub Professional Leaflet
Knowsley Advocacy Hub Referral Form
The above information for the Knowsley Advocacy Hub was added to this portal in November 2023.
Independent Mental Capacity Advocate Service
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.
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:
Providing care which recognises and responds to cultural differences also helps build better relationships between social care staff and the adult and their family.
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.
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.
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.
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.
When staff are aware of their own cultural values and recognise other people’s, it can have a positive impact on:
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:
There are many different aspects and variations in culture. Providing care should always be based on an assessment of a person’s individual needs.
Often, small changes make a big difference to people. The most important things for staff to do are:
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:
Equality, Diversity and Human Rights
Culturally Appropriate Care (Care Quality Commission)
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
What people expect
I feel safe and supported to understand and manage any risks.
KNOWSLEY SPECIFIC INFORMATION
Knowsley Multi-Agency Risk Assessment and Management (MARAM) Process
Knowsley Risk Management Arrangements
RELEVANT CHAPTER
November 2023: This section has been updated to include a link to Knowsley Risk Management Arrangements, as above.
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
What people expect
I feel safe and supported to understand and manage any risks.
KNOWSLEY SPECIFIC INFORMATION
CQC WE and I Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
I statement
I feel safe and supported to understand and manage any risks.
KNOWSLEY SPECIFIC INFORMATION
CQC Quality Statement
Theme 4 – Leadership: Governance, management and sustainability
We statement
We have clear responsibilities, roles, systems of accountability and good governance. We use these to manage and deliver good quality, sustainable care, treatment and support. We act on the best information about risk, performance and outcomes and we share this securely with others when appropriate.
KNOWSLEY SPECIFIC INFORMATION
CQC Quality Statements
Theme 1 – Working with People: Supporting people to live healthier lives
We Statement
We support people to manage their health and wellbeing so they can maximise their independence, choice and control. We support them to live healthier lives and where possible, reduce future needs for care and support.
What people expect
I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally. I am supported to plan ahead for important changes in my life that I can anticipate.
KNOWSLEY SPECIFIC INFORMATION
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions
We statement
We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.
What people expect
When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.
I feel safe and supported to understand and manage any risks.
KEY POINTS
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.
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:
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.
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:
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.
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:
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.
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.
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:
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.
See also: Full Consent Form for Participating in the NHS Continuing Healthcare Process and for Information Sharing with Family / Friends / Advocates (DHSC) 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:
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.
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:
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.
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:
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.
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.
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.
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.
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:
However, the NHS is not responsible for paying for rent, food and normal utility bills such as gas, electricity and water.
There are two types of disputes that may arise in relation to NHS CHC:
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).
NHS Continuing Healthcare Decision Support Tool
NHS Continuing Healthcare Checklist
NHS-Funded Nursing Care Practice Guidance
NHS Continuing Healthcare Fast-Track Pathway Tool
See also:
NHS Continuing Healthcare (NHS)
NHS Continuing Healthcare (AgeUK)
Appendix 1: Flow diagram CHC Process
RELEVANT CHAPTERS
Working with People Living with Frailty
Working with People Living with Dementia
RELEVANT INFORMATION
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.
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.
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.
Doing regular exercise can improve a person’s strength and balance and in turn reduce their risk of having a fall. These can be:
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.
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)
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)
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:
Drug Addiction: Getting Help (NHS)
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:
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)
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.
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.
Tips for preventing falls in the home include:
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)
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:
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
What people expect
I feel safe and supported to understand and manage any risks.
KNOWSLEY SPECIFIC INFORMATION
Knowsley Risk Management Arrangements
Domestic Abuse and Dementia (KSAB)
January 2024: This section has been updated to include a link to Knowsley Safeguarding Adults Board Dementia and Domestic Abuse Toolkit, as above.
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).
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:
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:
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).
The Act introduced the term ‘personally connected’. This applies to people who:
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.
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.
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:
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.
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:
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).
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.
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).
Safeguarding Procedures for Responding in Individual Cases
Domestic Abuse Statutory Guidance (Home Office)
Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)
Domestic Abuse – How to Get Help (Home Office)
Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)
CQC Quality Statement
Theme 4 – Leadership: Learning, improvement and innovation
We statement
We focus on continuous learning, innovation and improvement across our organisation and the local system. We encourage creative ways of delivering equality of experience, outcome and quality of life for people. We actively contribute to safe, effective practice and research.
This chapter summarises the Emerging Concerns Protocol which was developed via the Health and Social Care Regulators Forum, to enable organisations and partners to act early and share information with regulators where there are concerns about risks to people using services, their carers, families or professionals.
The protocol was first published in 2016 and revised in 2021 to strengthen the arrangements previously in place and ensure a shared approach to any proposed actions.
Partners to the protocol share a common objective of making sure that health and social care professionals and systems across the UK serve to protect the public, whilst maintaining the health, safety and wellbeing of professionals, people using services and also their families and carers.
They expect providers and professionals to work together to provide the best possible care. The importance of sharing concerns at the right time is emphasised as this makes it easier to understand the links between pieces of information, which can indicate a problem is emerging. They note that working together more effectively can reduce unnecessary burdens; the aim of the protocol is to strengthen and encourage good practice by enabling the sharing of information about emerging quality concerns in a timely fashion.
Each of the organisations signed up to the protocol has a responsibility for responding to concerns about care provision and health professional education / learning environments and a role in ensuring that those who use services, their carers and families receive high-quality services from professional staff and registered health and social care organisations.
The Protocol states:
‘The purpose of the protocol is to provide a clearly defined mechanism for organisations which have a role in the quality and safety of care provision, to share information that may indicate risks to people who use services, their carers, families or professionals. No piece of information is too small to invoke the protocol.
Information might include, but is not limited to:
- situations that may not be seen as an emergency, but which may indicate future risks;
- cultural issues within health and social care settings (including educational environments) that would not necessarily be raised through alternative formal systems.
The objective of the protocol is to be flexible and empowering, supporting regulators to understand how they can share information. This protocol is designed to work alongside protocols that already exist, however, it is specifically aimed at helping staff across the partner organisations to make decisions about when to escalate information of concern with one or more organisations. It is not intended to work against good working relationships and existing informal mechanisms that already exist, but to strengthen and encourage good practice. Nor is it intended to override the autonomy of existing organisations.’
One of the aims of the protocol is to provide guidelines on how to raise and escalate concerns that may seem small and not urgent, but which could point to a future risk. It intends to support a process of discussions taking place safely and without judgement, and decisions being made as to how relevant concerns can be addressed proactively rather than reactively. It does not replace existing responsibilities and arrangements for taking emergency action.
The following principles are laid down in the protocol:
Concerns may come into three categories:
This is a summary of the process. See the Annexes for more detailed information about each stage.
REMEMBER: no piece of information is too small to invoke the protocol.
At this stage it may be decided that the Protocol does not need to be triggered and the information can be dealt with through other routes.
At this stage it may be decided that the Protocol does not need to be triggered and the information can be dealt with through other routes.
See Section 6, Recording Requirements and Section 7, Sharing Personal Data
Any organisation may receive information that indicates that abuse, harm or neglect has taken place. Any form of abuse, avoidable harm or neglect is unacceptable. Each organisation has procedures for managing these types of concerns and they must be followed (see Safeguarding Procedures for Responding to Concerns in Individual Cases chapter). Each organisation remains responsible for ensuring they follow their own internal safeguarding procedures. Nobody should wait to activate the protocol instead of acting on safeguarding concerns – immediate action should always be taken where necessary (see Adult Safeguarding chapter).
See also Case Recording Standards and Information Sharing chapter
Each organisation involved in the use of the protocol should ensure records are made on their own system.
Each organisation should be able to report on:
The minimum information expected to be stored includes:
See also Annex C Sharing of Personal Data and Case Recording Standards and Information Sharing chapter
When using the protocol, mostly there should not be a need to share personal data about individuals. Organisations convening an RRP must ensure however that only those who need to know the information should attend if personal information is to be shared in the panel.
Any processing of personal data is subject to the requirements of the Data Protection Act 2018 and the UK General Data Protection Regulation (see Data Protection: Legislation and Practice chapter).
Emerging Concerns Protocol (Care Quality Commission and partners)
Questions to Consider when Determining Whether to use the Protocol
nformation for Regulatory Review Panel Chair
Template Agenda for a Regulatory Review Panel
CQC Quality Statements
Theme 1 – Working with People: Assessing needs
We statement
We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.
What people expect
I have care and support that is coordinated, and everyone works well together and with me.
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
If an adult with care and support needs has no one appropriate to help them at certain times, the council must arrange for an independent advocate (also known as a Care Act advocate) who will speak on their behalf. This quick read provides key information about when an independent advocate can be involved and what their role is.
This quick read provides information about the charging and financial assessment that people have to complete if they apply to their local council for help with care and support costs.
This quick read provides information about data protection.
This quick read is about preventing, reducing or delaying needs for all adults.
This quick read is about sharing information- why it is important and when and how information can be shared safely.
This quick read gives information about ordinary residence – what it is and when and who it applies to.
CQC Quality Statement
Theme 4 – Leadership: Learning, improvement and innovation
We statement
We focus on continuous learning, innovation and improvement across our organisation and the local system. We encourage creative ways of delivering equality of experience, outcome and quality of life for people. We actively contribute to safe, effective practice and research.
KNOWSLEY SPECIFIC INFORMATION
Staff induction information:
Knowsley Adult Social Care Induction: New Employees, ASYEs and Students
The Care Act 2014 came into effect on 1st April 2015. It brings together a number of different Acts into a single new Act that puts people and their carers in control of their care and support.
This quick read chapter provides key information about the Care Act 2014.
Reviewing care and support plans is an important part of the care and support planning process, as people’s needs, circumstances and hopes change over time. Without regular reviews, plans can become out of date, meaning that people do not receive the right care and support to meet their needs.
This quick read provides key information about reviewing care and support plans.
This quick read provides key information about promoting wellbeing.
The Mental Capacity Act 2005 is a law that supports people who may not be able to make some or any decisions for themselves about what they want.
This quick read provides key information about mental capacity.
Getting the right information and advice helps people, carers and families make informed choices about their care and support and how they fund it. Councils must provide people with information and advice about care and support for adults and support for carers.
This quick read provides key information about information and advice.
For someone to receive care and support from their local council, they must have needs that meet a certain level. These are called ‘eligible’ needs.
This quick read provides key information about eligibility.
A direct payment is money paid by the council, to help buy the support it has assessed a person as needing. Direct payments help people organise and buy their own care, instead of the council providing it. This is set out in the Care Act.
This quick read provides key information about direct payments.
Deprivation of liberty is a legal arrangement that allows staff in care homes and hospitals to restrain and restrict the liberty of adults in particular circumstances. However, this must first be authorised by the local authority (called deprivation of liberty safeguards) and it must be in the adult’s best interests.
This quick read provides key information about deprivation of liberty safeguards.
This quick read provides essential information about care and support planning, sometimes also called care plans or support plans.
This quick read provides key information about assessments.
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
What people expect
I feel safe and supported to understand and manage any risks.
It is essential that workers in adult social care and partner agencies who are working with an adult who has care and support needs consider and include the needs of all family members when carrying out assessments and developing plans.
There are four steps to the Whole-Family Approach:
This chapter is taken from The Care Act and Whole-Family Approaches (Local Government Association et al) and provides guidance about using the Whole-Family Approach in daily practice.
Under the Care Act 2014, a whole system, whole council, whole-family approach which organises services and support around the adult and their family must be taken. It also means that everyone must think about the impact of the care needs of the adult on their family, including any children they have.
The principle of wellbeing is at the heart of this approach (see Promoting Wellbeing chapter). A vital part of an adult’s wellbeing is the situation they live in, who they live with and family relationships. It is important to achieve a balance between their wellbeing and that of any family or friends caring for them.
A whole-family approach to promoting wellbeing and preventing need for care and support may include helping the adult and their family to think about what changes may happen in the future, and to plan for these – when the adult needs more care or if a carer becomes unwell for example (see Reducing, Preventing or Delaying Needs chapter).
The needs of young carers, for example a teenager who has to look after their disabled parent, are included in both the Care Act 2014 and in the Children and Families Act 2014. This is to make sure the council takes a whole-family approach to assessing and supporting the adult and their young carer and delivers support in a coordinated, organised way. (See Young Carers chapter, Children’s Social Care procedures and Annex A of The Care Act and Whole-Family Approaches (Local Government Association et al).
In a council that thinks family:
Getting the whole picture means seeing each person as an individual, as well as recognising the part they play in their family and community. Everyone has something to contribute to addressing the adult’s needs. The Whole-Family Approach builds on everyone’s strengths and develops their resilience. It also promotes working together with carers as partners, as well as the adult and other members of the family and friends where appropriate.
Understanding the needs of the whole family and getting them to think about the outcomes they want to achieve individually, as well as a family is vital. It means the worker can then provide the right guidance, information and services.
Assessment is an important part of the process for everyone (see Assessment chapter). During the assessment, the worker can give guidance and information to help the family understand the situation, their needs and strengths. This can help to reduce or delay any increase in the adult’s needs and make sure that they have support when they need it. The aim of assessment is to get a full picture of the person and their needs and goals, so any carers must be consulted. Carers are recognised in the Care Act, in the same way as those they care for (see Carer’s Assessment, Assessment chapter).
In a council that gets the whole picture:
Where an assessment does identify a potential child in need, the worker should contact their line manager to discuss the situation and a referral should be made to children’s services as appropriate (see Knowsley Safeguarding Children Partnership procedures).
When councils and other agencies adopt a whole-family approach to developing care and support plans this can help achieve the best outcomes for the whole family. Sometimes, however, a plan can have a negative impact on other members of the family, particularly carers. This is something which must be considered when plans are reviewed.
A whole-family approach can also make better use of resources. Sometimes plans are needed for more than one member of the family and from different organisations, for example the Care Programme Approach if mental health services are involved. Plans should not be developed in isolation from one another but should be developed together. If everyone involved agrees, including the practitioners, plans for different family members can be combined to form a single plan in which there may be parts for individual family members as well as the family as a whole. This can be particularly important in making sure that everyone’s wellbeing is being considered and it can also be helpful in addressing any areas of conflict that arise and agreeing a way forward so that everyone achieves what they need, as far as possible.
In a council that makes plans that work for everyone:
As with assessment and care planning, wherever possible a whole-family approach to review should be taken. It should concentrate on the results that are being achieved by the adult and their family (known as an outcome focused review). Workers should consider giving others permission to conduct the review; this could be the person themselves, a carer or someone else.
Workers need to oversee the process and sign off all reviews. Sometimes a ‘light touch’ approach can be helpful in the early stages, which might include a telephone call or asking the adult or another family member to carry out a self-review to check that things are working as intended. Whatever approach is used, it should always include consider any impact of the care and support plan on other family members.
Where the review identifies things that have changed, the care and support plan may need to be updated to include these. Again the adult, their carer and anyone else they want included should be involved. The whole-family approach should make sure that everyone’s needs and wellbeing are considered (including any children), that there are no consequences for anyone that had not been seen in advance and that everyone agrees with the plan.
In a council that knows its approach is working for the whole family:
Annex C of The Care Act and Whole-Family Approaches (Local Government Association et al)
includes some practical tools for working with families which can be adapted and developed for local use. These include:
Annex D also provides a checklist of key practice points.
The Care Act and Whole-Family Approaches (Local Government Association et al)
This accessibility statement applies to the Knowsley Council APPP Portal.
This website is run by Knowsley Council. We want as many people as possible to be able to use this website. For example, that means you should be able to:
We’ve also made the website text as simple as possible to understand.
AbilityNet has advice on making your device easier to use if you have a disability.
This web pages of this site are navigable via keyboard, and readable via screen-reader. However we cannot guarantee the accessibility of any linked files, such as PDFs and Word documents.
We add text alternatives for all images that contain vital information. When we publish new content we make sure our use of images meets accessibility standards.
If you need information on this website in a different format like accessible PDF, large print, easy read, audio recording or braille, contact us via email – safeguardingqualityimprovement@knowsley.gov.uk
We’ll consider your request and get back to you shortly.
We’re always looking to improve the accessibility of this website. If you find any problems not listed on this page or think we’re not meeting accessibility requirements, contact us via email – safeguardingqualityimprovement@knowsley.gov.uk
The Equality and Human Rights Commission (EHRC) is responsible for enforcing the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the ‘accessibility regulations’). If you’re not happy with how we respond to your complaint, contact the Equality Advisory and Support Service (EASS).
We are committed to making this website accessible, in accordance with the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018.
This website is compliant with the Web Content Accessibility Guidelines version 2.2 AA standard, with non-compliances and exemptions listed below.
Some of our interactive elements supplied by 3rd party developers/features, such as forms or recaptcha boxes, may be more difficult to navigate using a keyboard. For example, because some form controls are missing a ‘label’ tag.
Where we rely on 3rd party developers for key features we will work alongside them to develop and install any accessibility improvements that can be made to those features.
Some of our content is supported by, or links out to, PDFs, images and Word documents supplied by other sources. We will aim, where possible, to ensure any linked documents or embedded images (created post-September 2018) in our control will be accessible.
This statement was reviewed on 24/01/2024.
CQC Quality Statements
Theme 1 – Working with people: Equity in experiences and outcomes
We statement
We actively seek out and listen to information about people who are most likely to experience inequality in experience or outcomes. We tailor the care, support and treatment in response to this.
What people expect
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
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.
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:
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.
The local authority should express its commitment to equality and diversity by:
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:
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.
All staff involved in the safeguarding process should be familiar with the following types of discrimination.
Under the Equality Act 2010 these are as follows.
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)
See also Equality and Human Rights Commission
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:
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:
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.
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.
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.
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).
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:
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)
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.
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:
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:
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:
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).
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions
We statement
We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.
What people expect
When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.
I feel safe and supported to understand and manage any risks.
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.
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:
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.
The term ‘care provider’ means:
A care provider commits an offence if:
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:
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.
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’
Paid work does not include:
KNOWSLEY SPECIFIC INFORMATION
Preventing Homelessness and Rough Sleeping Strategy 2020-25
September 2023: A link has been added in Section 5.2, Other useful resources to Care and Support and Homelessness: Top Tips on the Role of Adult Social Care published by the LGA.
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.
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.
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).
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:
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.
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.
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:
The local authority can provide this advice themselves or arrange for other agencies to do it on their behalf.
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:
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:
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’.
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.
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.
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:
The local authority must provide temporary accommodation for applicants who are in a priority need group whilst it performs the relief duty.
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:
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:
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:
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.
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.
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.
An applicant has a local connection to an area if they are:
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.
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:
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.
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:
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.
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.
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)
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”.
The Johnson vulnerability test is practically applied by asking the following questions:
CQC Quality Statements
Theme 1 – Working with people: Equity in experiences and outcomes
We statement
We actively seek out and listen to information about people who are most likely to experience inequality in experience or outcomes. We tailor the care, support and treatment in response to this.
What people expect
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
This is the Accessible Information Standard (NHS England). This aims to ensure that people who have a disability, impairment or sensory loss get information that they can access and understand, and any communication support that they need from health and care services.
Have your Say: Complaints, Comments, Compliments and Questions
Complaints: Adult Social Care Resources (Local Government and Social Care Ombudsman)
CQC Quality Statements
Theme 1 – Working with People: Assessing needs
We Statement
We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.
What people expect
I have care and support that is coordinated, and everyone works well together and with me.
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
KNOWSLEY SPECIFIC INFORMATION
Knowsley Legal Guidance – Capacity Assessment – Relevant Information
Capacity Assessment Tool: Best Practice
Mental Capacity Assessment – Best Practice 1
Mental Capacity Assessment – Best Practice 2
Sample Mental Capacity Interview Questions
Seven Minute Briefing Mental Capacity Act (Knowsley Safeguarding Adults Board)
The Mental Capacity Act 2005 (MCA) provides a framework to protect and restore power to those who may lack, or have reduced, 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, 2007: p3).
The Act legislates in relation to:
The MCA relates to people over the age of 16 years old. For the purposes of this policies and procedures portal, however, it only applies to those over the age of 18 years old, who are not children under the Children Act 1989 (before their 18th birthday).
The following five principles apply for the purposes of the Act:
The five principles of the Act should inform all actions when working with a person who may lack or have reduced capacity and should be evidenced in taking decisions or actions on behalf of a person who may lack or have reduced capacity.
There are certain decisions which can never be made on behalf of a person who lacks 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.
Although the Act does not allow anyone to make a decision about the matters below on behalf of someone who lacks capacity to make such a decision for themselves (for example, consenting to have sexual relations), this does not prevent action being taken to protect a vulnerable person from abuse or exploitation.
Nothing in the MCA allows a decision to be made on someone else’s behalf on:
Where a person who lacks capacity to consent is currently detained and being treated under the Mental Health Act 1983, nothing in the MCA authorises anyone to:
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.
Unlawful killing or assisting suicide
Nothing in the MCA affects the law relating to murder, manslaughter or assisting suicide.
Anybody who claims an adult lacks capacity should provide proof.
They need to demonstrate, on the balance of probabilities, that the individual lacks 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.
To help determine if a person lacks capacity, the Act sets out a two stage test.
Stage 1: The Diagnostic Test
Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
Stage 1 requires proof the person has an impairment or disturbance of the mind or brain. If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the Act. Examples include:
Stage 2: The Functioning Test
Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
The person must first be given all practical and appropriate support to help them make the decision for themselves. Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed.
A person is considered unable to make a decision if they cannot:
Once you have identified an impairment or disturbance in the functioning of the mind or brain, it is important to decide whether the 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 you can reasonably say that the person cannot make the decision because of the impairment of their mind can you say that they lack capacity to make the decision.
Assessors should also consider the case of SS v London Borough of Richmond upon Thames & 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.
The two stage test should be used as a framework for recording the assessment of mental capacity, so that evidence for decision making is clear.
If, having taken all practical steps to assist someone, 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).
Different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. 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 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 Powers of Attorney, they may also make specific decisions concerning the person’s property and affairs or personal 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.
A Lasting Powers of Attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose capacity in the future and allows them to empower an attorney to make health and welfare decisions.
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 MCA created a public body and an official to support the statutory framework:
See Independent Mental Capacity Advocate Service.
The MCA also included another key provision to protect people who lack capacity. Independent Mental Capacity Advocates (IMCA) are those appointed to support a person who lacks capacity but has no one to speak for them. They 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.
Considering the possibility of losing mental capacity and registering a Lasting Power of Attorney is usually associated with people getting older. But it would be 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 capacity.
Using a LPA is not necessarily limited to circumstances where an adult’s capacity is diminished. Due to a physical illness that renders a person (the donor) unable to leave the house for example, a 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 a LPA cannot be used until it has been fully registered and confirmation received, they can be registered before capacity is lost which means that they could be used immediately if it should become necessary.
The Mental Capacity Act sets out a checklist of things to consider when deciding what’s in a person’s best interests. People should:
Deprivation of Liberty Safeguards
Independent Mental Capacity Advocate Service
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)
CQC We and I Statements
Theme 1 – Working with People: Assessing needs
We statement
We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.
I statements
I have care and support that is coordinated, and everyone works well together and with me.
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
CQC Quality Statement
Theme 4 – Leadership: Governance, management and sustainability
We statement
We have clear responsibilities, roles, systems of accountability and good governance. We use these to manage and deliver good quality, sustainable care, treatment and support. We act on the best information about risk, performance and outcomes and we share this securely with others when appropriate.
This chapter is a summary of the Professional Capabilities Framework (PCF) guidance, which is the structure of social work skills professional development in England.
It was first published in 2012, and updated in 2018.
This is a full version of the Professional Capabilities Framework and Guidance.
The Framework includes:
These are outlined below.
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’.
This is the full Statement on the PCF and KSS
The PCF is the framework for social work practice and learning in England and performs the following functions:
Specialist knowledge, skills or learning content that may be needed in particular work contexts or roles is not described by the PCF.
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’ (Adapted from Stephenson, 1992)
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 skill to deal with situations of increasing risk, ambiguity and complexity.
There are three super, overarching domains which cut across all other areas. These are:
The domain descriptors describe key areas of social work practice and were refreshed in 2018 following wide consultation.
Level descriptor outline levels of post within social work and were also refreshed in 2018 following consultation. These are:
Social Workers Supervision Policy
Professional Capabilities Framework and Guidance
Professional Standards and Professional Standards Guidance (Social Work England)
CQC Quality Statements
Theme 3 – How the local authority ensures safety in the system: Safeguarding
We statement
We work with people to understand what being safe means to them as well as our partners on the best way to achieve this. We concentrate on improving people’s lives while protecting their right to live in safety, free from bullying harassment, abuse, discrimination, avoidable harm and neglect. We make sure we share concerns quickly and appropriately.
What people expect
I feel safe and supported to understand and manage any risks.
March 2023: This chapter has been rewritten to reflect the latest version of the Modern Slavery Statutory Guidance, published by the Home Office.
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 2021, the Home Office received 3,190 reports of adult potential victims via the Duty to Refer process (see Section 5, National Referral Mechanism and the Duty to Refer) compared to 2,175 in 2020. The most commonly referred nationalities in 2021 were Albanian (14%), Eritrean (12%) and UK (11%).
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:
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.
Modern slavery includes the following:
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:
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:
| Elements of human trafficking in adults | What this means |
| Action | recruitment, transportation, transfer, harbouring or receipt, which includes an element of movement whether national or cross-border; |
| Means | threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability; |
| Exploitation | for example, sexual exploitation, forced labour or domestic servitude, slavery, financial exploitation, removal of organs (see below for more detail) |
(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:
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:
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:
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:
| Victims may: | |
| Believe that they must work against their will | Have false identity or travel documents for example a passport (or none at all) |
| Be unable to leave their work or home environment | Be found in or connected to a type of location or venue likely to be used for exploiting people |
| Show signs that their movements are being controlled / feel that they cannot leave | Be unfamiliar with the local language |
| Be subjected to violence or threats of violence against themselves or against their family members and loved ones | Not know their home or work address |
| Show fear or anxiety | Allow others to speak for them when addressed directly |
| Have injuries that appear to be the result of an assault | Be forced, threatened or deceived into working in poor conditions |
| Not be allowed to have the money they have earned | Be disciplined / controlled through punishment |
| Be distrustful of the authorities | Receive little or no payment |
| Be afraid of telling anyone their immigration status | Work very long hours over long periods |
| Come from a place where human trafficking victims are known to come from | Live in poor or substandard accommodations |
| Have had the fees for their transport to the country of destination paid for by organisers of human trafficking, who they must pay back by working or providing services | Have no access to medical care |
| Have no or not much contact with other people | Only be allowed to have limited contact with their families or with people outside of their immediate environment |
| Be unable to speak freely with others | Believe that they must work until they have paid off the debt they are told they owe |
| Be dependent on their ‘bosses’ / facilitators | Have believe the false promises of their bosses / facilitators. |
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.
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.
If it is suspected that someone is in immediate danger, the police should be contacted on 999.
There are a number of options that can be taken:
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.
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.
For further guidance and the online referral forms see:
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:
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.
Adult potential victims who choose not to enter the NRM may still be eligible for other state support. They may still be:
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)
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:
First responder organisations have the following responsibilities – it is for the organisation to decide how it will discharge these responsibilities:
CQC Quality Statement
Theme 4 – Leadership: Governance, management and sustainability
We statement
We have clear responsibilities, roles, systems of accountability and good governance. We use these to manage and deliver good quality, sustainable care, treatment and support. We act on the best information about risk, performance and outcomes and we share this securely with others when appropriate.
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:
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.
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.
The UK General Data Protection Regulation (UK GDPR) (see UK GDPR: Guidance and Resources, Information Commissioner’s Office).
The UK GDPR:
If staff receive a query about the collection or processing of personal data, they should contact the Knowlsey Information Governance team for advice.
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:
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.
Personal data is:
Special category data is personal data that needs more protection because it is sensitive. It includes personal data which reveals:
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 Information Commissioner’s Office, Lawful basis for processing).
The local authority must:
In addition, the local authority should ensure that:
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:
All contractors, consultants, suppliers and partners must:
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:
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.
Any person whose information is being processes by the local authority has the following rights:
A person whose information is being processed should have access to a privacy notice (available on the council website), setting out:
A person whose information is being processed has the following rights:
A breach of security which can be either accidental, deliberate or unlawful and can involve:
A breach covers accidental and deliberate causes and is more than just losing personal data.
These are commonly occurring breaches:
A serious data breach:
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.
Information Sharing and Confidentiality
Guide to Data Protection: for Organisations (Information Commissioner’s Office)
Working from Home (Information Commissioner’s Office)
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.
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:
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.
The Mental Health Act 1983 is split into ten parts:
These parts are the ones most commonly used and key to adult social care practice:
Further detail about each section is outlined below.
This allows for:
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.
For a person to be detained under section 2 they must have:
Patients have the right to appeal against the detention within the first 14 days.
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.
The Act allows the following provisions:
Patients have the right to appeal against the detention within the first six months.
Please also see Section 117 Aftercare.
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.
The Act allows the following provisions:
There is no right of appeal against section 4.
The Act:
There are two parts to section 5 which are outlined below.
This is often referred to as doctor’s holding powers. The provisions are:
This is often referred to as nurse’s holding powers. The provisions are:
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).
The Act makes the following provisions:
A person is still a detained patient when section 17 is in place.
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:
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;
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.
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.
The provisions are:
The provisions are:
The provisions are:
Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983
Mental Health Act 1983 Code of Practice
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:
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”
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.
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:
Policy Partners Projects (“We”) are committed to protecting and respecting your privacy.
This policy sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us. Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it. By visiting this website you are accepting and consenting to the practices described in this policy.
For the purpose of the Data Protection Act 2018 (the “Act”), the data controller is Policy Partners Project of:
53 Greystones Grange Road, Sheffield, S11 7JH
Our nominated representative for the purpose of the Act is Angie Heal.
We may collect and process the following data about you:
Like most interactive web sites this Company’s website) (or ISP) uses cookies to enable us to retrieve user details for each visit. Cookies are used in some areas of our site to enable the functionality of this area and ease of use for those people visiting. Some of our affiliate partners may also use cookies.
We use anonymised visitor data to analyse trends, administer the site, track visitor movements, and gather broad demographic information for aggregate use. Additionally, for systems administration, detecting usage patterns and troubleshooting purposes, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. This information is not shared with third parties and is used only within this Company on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way different to that stated above without your explicit permission.
We use information held about you in the following ways:
We may share your personal information with any member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries, as defined in section 1159 of the UK Companies Act 2006.
We will not share your personal information with third parties for marketing purposes, however we may share your information with selected third parties for the following reasons:
The data that we collect from you may be transferred to, and stored at, a destination outside the European Economic Area (“EEA”). It may also be processed by staff operating outside the EEA who work for us or for one of our suppliers. By submitting your personal data, you agree to this transfer, storing or processing. We will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this privacy policy.
All information you provide to us is stored on our secure servers. Where we have given you (or where you have chosen) a password which enables you to access certain parts of our site, you are responsible for keeping this password confidential. We ask you not to share a password with anyone.
Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your data transmitted to our site; any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorised access.
The Data Protection Act gives you the right to access information held about you. Your right of access can be exercised in accordance with the Act.
You may also contact us to request that we delete any personal information we hold about you.
Where you have provided personal information for a specific service (for example giving us your email address in order to receive email notifications) we will provide the ability to opt-out of these systems via a hyperlink in any relevant email communication.
Any changes we may make to our privacy policy in the future will be posted on this page and, where appropriate, notified to you by e-mail. Please check back frequently to see any updates or changes to our privacy policy.
We do not monitor or review the content of other party’s websites which are linked to from this website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by us and should not be regarded as the publisher of such opinions or material. Please be aware that we are not responsible for the privacy practices, or content, of these sites. We encourage our users to be aware when they leave our site & to read the privacy statements of these sites. You should evaluate the security and trustworthiness of any other site connected to this site or accessed through this site yourself, before disclosing any personal information to them. This Company will not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from your disclosure to third parties of personal information.
Notice Copyright and other relevant intellectual property rights exists on all text relating to the Company’s services and the full content of this website.
Questions, comments and requests regarding this privacy policy are welcomed and should be addressed to angie.heal@policypartnersproject.co.uk
Care and Support Statutory Guidance (Department of Health and Social Care). Individual chapters, taken from the Guidance, can be found in the Care and Support Statutory Guidance section.
CQC Quality Statements
Theme 1 – Working with People: Assessing needs
We statement
We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.
What people expect
I have care and support that is coordinated, and everyone works well together and with me.
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
KNOWSLEY SPECIFIC INFORMATION
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.
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.
The decision maker must in particular consider:
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:
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.
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:
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:
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.
Determining and Recording Best Interests (39 Essex Chambers)
September 2023: A new section 1, Advance Care Planning, has been added to reflect guidance contained in ‘Universal principles for advance care planning’ which was published in response to the Care Quality Commission report ‘Protect, Connect, Respect – decisions about living and dying well’.
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:
The following are the universal principles of ACP and describe ‘what good looks like’ in advance care planning:
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).
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:
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:
An advance decision is not valid if the person:
Practitioners should be clear that advance decisions are different from advance statements.
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.
See also Advance Decision to Refuse Treatment (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.
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)
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.
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.
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).
Universal Principles for Advance Care Planning (NHS)
Advance Decisions (Living Will)
CQC Quality Statements
Theme 1 – Working with People: Supporting people to live healthier lives
We Statement
We support people to manage their health and wellbeing so they can maximise their independence, choice and control. We support them to live healthier lives and where possible, reduce future needs for care and support.
What people expect
I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally. I am supported to plan ahead for important changes in my life that I can anticipate.
Self-funders are adults who arrange and pay for their own care in full. This may be funded from their own finances, or another private source such as a family member. It includes people who receive direct payments who can choose how to spend their payments to meet their care and support needs.
A local authority has a duty to meet the needs of all adults who are assessed as having eligible needs (see Eligibility chapter). There are two exceptions to this:
If the local authority – having carried out a financial assessment (see Charging and Financial Assessment chapter) – is satisfied that the adult who wants to self-fund has financial resources that are over the financial limit (£23,250), the adult can ask the local authority to meet their needs. The local authority would charge for meeting the adult’s needs, as they have above the capital limit. It can also charge a fee for arranging the provision of care and support for the adult.
During the passage of the Care Bill, the government described this an “important and ground-breaking right” for self-funders to ask the local authority to arrange care and support on their behalf.
Where the self-funder asks the local authority to meet their eligible need for care home accommodation, the local authority may chose to do that but it is does not have to. Where the adult’s needs are to be met by some other type of care and support and not care home accommodation, the local authority must meet those eligible needs.
It was intended that the duty on local authorities to also meet the eligible needs of self-funders in a care home would be implemented on 1st April 2015. However, this reform (along with other financial reforms) has been delayed.
The exception outlined above in Section 2, Local Authority Duties does not necessarily apply to those adults lacking mental capacity.
Where an adult who lacks capacity to make such a request to the local authority has finances above the financial limit, it may be made by someone else acting on their behalf. The person making the request on behalf of the adult can only do so if this was in the adult’s best interests (see Mental Capacity Act and Code of Practice chapter).
The person or other interested party or the local authority could then arrange for the payment of the local authority’s charge through a deputyship.
If an adult or a family member makes the arrangements with a care home, the adult will pay the market rate for the bed in the residential accommodation.
A local authority, acting on behalf of the adult who has fallen below the capital limit, will probably be able to negotiate a lower rate with the care home than the adult who is a self-funder. This is often due to the local authority being able to ‘block book’ beds, which will not be available to the person who is self-funding. The local authority will also have framework agreements with various providers in their area through which they can purchase the same services but often at a reduced rate.
Technology that promotes independence at home. Aids such as pendant alarms and sensors, for example, can detect if the person has fallen or there are other hazards such as smoke, floods or gas leaks. They alert a monitoring centre where operators arrange for someone to come to the person’s home or contact family, a doctor or emergency services. See also assistive technology.
