3.1. Legislation, national guidance, and toolkits

3.1.1. Introduction

This section of the policy and procedures sets out key areas of national policies and guidance in relation to relevant legislation and good practice in adult safeguarding. A summary is provided for each document together with a link to the relevant webpage.

3.1.2. The Care Act 2014

The Care Act Sections 42-47

Sections 42 to 47 of the Care Act (opens in a new window) set out the legal duties and responsibilities in relation to adult safeguarding.

Care and Support Statutory Guidance (Department of Health and Social Care, 2018)

The legal framework for the Care Act 2014 is supported by the Care and Support Statutory Guidance (opens in a new window), which provides information about how the Care Act works in practice. The guidance has statutory status which means that there is a legal duty to have regard to it when working with adults with needs for care and support, and carers.

3.1.3. Corporate manslaughter

Corporate Manslaughter (Crown Prosecution Service)

Companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care under the Corporate Manslaughter and Corporate Homicide Act 2007. The Crown Prosecution Service has produced this guidance (opens in a new window) which sets out the general principles which apply in respect of this legislation.

3.1.4. Coroner's services and investigations

Coroner’s Services and Investigations (Ministry of Justice, 2014)

This guide provides a summary of the role of the coroner (opens in a new window) and offers guidance to anyone who may be involved in a coroner’s investigation or attends a coroner’s inquest.

Any cases currently being progressed under safeguarding adults or where it is suspected that abuse or neglect of an adult at risk has caused or contributed to their death must be raised with the Police and the Coroner.

Local Coroner contact/information across Sussex:

• Coroner | East Sussex County Council (opens in a new window)
• Coroner's Service | West Sussex County Council (opens in a new window)
• HM Coroner for Brighton & Hove | Brighton & Hove City Council (opens in a new window)

3.1.5. Criminal Justice and Courts Act 2015

Under the Criminal Justice and Courts Act 2015 (opens in a new window) it is an offence for an individual or a care provider who has the care of another individual to ill-treat or wilfully to neglect that individual.

The offence focuses on the conduct of the individual, not the outcome. It is to do with what the worker actually did (or failed to do) to the individual, rather than any harm that resulted.

For organisations the offence focuses on the way their activities are managed and organised, and whether an incident amounts to a gross breach of a relevant duty of care owed to the patient.

3.1.6. Disclosure and Barring Service (Home Office, 2018)

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups, including children. It replaces the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA).

For more information, including guidance on how to make referrals, visit the Gov.uk, Disclosure and Barring Service webpages (opens in a new window).

The DBS has issued Guidance for Local Authorities and regulatory bodies (opens in a new window) about the duty and power to refer a person to DBS.

3.1.7. Domestic violence and abuse

Domestic Abuse Statutory Guidance 2022

This statutory guidance is issued under Section 84 of the Domestic Abuse Act 2021 (‘the 2021 Act’). It is intended to increase awareness and inform the response to domestic abuse. It also conveys standards and promotes best practice: Domestic Abuse Statutory Guidance (publishing.service.gov.uk) (opens in a new window).

Coercive Control (Research in Practice for Adults)

The Coercive Control website (opens in a new window) is for social workers and other health and social care practitioners to develop their knowledge and skills in working in situations of coercive control.

SafeLives

SafeLives (opens in a new window) is a National Charity dedicated to ending domestic abuse and contains information about the UK’s response to domestic abuse. The site includes information for professionals on resources including MARAC and the IDVA service. 

3.1.8. Female genital mutilation and traditional harmful practices

Multi-Agency Statutory Guidance on Female Genital Mutilation (HM Government, 2016)

This document contains multi-agency guidelines on Female Genital Mutilation (FGM) for those with statutory duties to safeguard children and vulnerable adults: Statutory Guidance on FGM (opens in a new window).

Harmful practices are persistent practices and behaviours that are grounded on discrimination on the basis of sex, gender, age and other grounds as well as multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering: Harmful Practices – National FGM Centre (opens in a new window).

3.1.9. Forced marriage

Multi-Agency Practice Guidelines: Handling Cases of Forced Marriage (HM Government, 2014)

This guidance sets out the responsibilities of agencies involved in handling cases of forced marriage. It provides advice and support to front line practitioners who have responsibilities to safeguard children and protect adults from the abuses associated with forced marriage: HM Government Multi-agency practice guidelines: Handling cases of Forced Marriage (publishing.service.gov.uk) (opens in a new window).

3.1.10. Gaining access to an Adult at risk

Gaining Access to an Adult Suspected to be at Risk of Neglect or Abuse: a Guide for Social Workers and their Managers in England (Social Care Institute of Excellence, 2014)

This guide has been created to provide information on legal options for gaining access to people who are suspected to be experiencing or at risk of abuse or neglect, but access to them is restricted or denied: Gaining access to an adult suspected to be at risk of neglect or abuse - SCIE (opens in a new window).

3.1.11. Health and Social Care Act 2008

The Health and Social Care Act 2008 (opens in a new window) seeks to enhance professional regulation by creating an integrated regulator for health and social care, the Care Quality Commission, with a focus on providing assurance about the safety and quality of care for patients and service users.

3.1.12. Human Rights Act 1998

The Human Rights Act 1998 (opens in a new window) incorporates most of the European Convention of Human Rights into UK law enabling claims by individual victims to be brought in UK courts against any public bodies for breach of those convention rights. The Act makes it unlawful for a public body to act (by commission or omission) in a way that is incompatible with their Convention Rights. Examples of convention rights are, right to a private and family life, right to marry, right to a fair trial, right to liberty and security etc.

3.1.13. Inter-authority safeguarding arrangements

The ADASS Inter-Authority Safeguarding Arrangements guidance sets out the policy for responding to safeguarding concerns which involve cross-boundary considerations. The guidance clarifies actions to be taken when the funding/commissioning responsibility for an adult lies with an authority in one area and where concerns about potential abuse or neglect arise in another area:

• ADASS Safeguarding Adults Policy Network: Guidance for Inter-Authority Safeguarding Adults Enquiry and Protection Arrangements (PDF, 720KB)

3.1.14. LeDeR programme

Learning from the lives and death of people with a learning disability or who are autistic (LeDeR)

The LeDeR programme sets out a structured way to review the lives and deaths of people with a learning disability and/or autistic people. LeDeR collects information from families, carers, providers, professionals, medical records and other relevant agencies and organisations in order to see where they can find areas of learning, opportunities to improve, and examples of good practice for sharing. It is a strengths focused approach placing the person and their experience as central to the review.

LeDeR is a review, not an investigation, and is a service improvement program to reduce known health inequalities. LeDeR is a non-statutory program and as such, is not concluded until other statutory processes such as S42 enquiry have been completed. Please see the national LeDeR policy (opens in a new window).

LeDeR governance is shared across the integrated care system and partners include local authorities, NHS Trusts as well as representation by those who have lived experience.

For further information on the LeDeR programme:

• LeDeR: Learning from Lives and Deaths (opens in a new window)

For details of current service improvement programs made as a result of LeDeR:

• Support for people with a learning disability - Sussex Health & Care (ics.nhs.uk) (opens in a new window)

For more information, please contact LeDeR in Sussex by email: sxicb.leder@nhs.net

3.1.15. Making Safeguarding Personal

Making Safeguarding Personal Guide (Local Government Association, 2014)

The Making Safeguarding Personal Guide (opens in a new window) is intended to support councils and their partners to develop outcomes-focused, person-centred safeguarding practice. It provides guidance about how to embark upon and take forward a Making Safeguarding Personal approach.

Making Safeguarding Personal: Practice toolkit handbook (Local Government Association, 2019)

The Toolkit (opens in a new window) sets out a range of models, theories and approaches which can be used as a practitioner guide for good practice in adopting a Making Safeguarding Personal approach.

3.1.16. Multi-Agency Public Protection Arrangements (MAPPA)

MAPPA Guidance (Ministry of Justice, National Offenders Management Service, HM Prison Service, 2012)

Multi-agency protection arrangements are in place to ensure the successful management of violent and sexual offenders. The MAPPA Guidance (Ministry of Justice, National Offenders Management Service, HM Prison Service, 2012) (opens in a new window) sets out the responsibilities of the police, probation trusts and prison service. It also covers how other agencies may become involved, for example in the care of young offenders.

3.1.17. Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009

Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007)

The legal framework provided by the Mental Capacity Act 2005 is supported by this Code of Practice, which provides guidance and information about how the Act works in practice. The Code of Practice has a statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves.

• Mental Capacity Act Code of Practice (opens in a new window)

Mental Capacity Act 2005 Section 44

Section 44 of the Mental Capacity Act 2005 (opens in a new window) created the criminal offences of ill-treatment and wilful neglect, and these offences can be committed by anyone responsible for that adult’s care and support. This includes:

• Paid staff
• Family carers
• People who have the legal authority to act on that adult’s behalf (i.e. persons with power of attorney or court-appointed deputies)

Deprivation of Liberty Safeguards Code of Practice (Ministry of Justice, 2008)

The Deprivation of Liberty Safeguards Code of Practice (opens in a new window) helps explain how to identify when a person is, or is at risk of, being deprived of their liberty and how a deprivation of liberty may be avoided. It also explains the safeguards that have been put in place to ensure that deprivation of liberty, where it does occur, has a lawful basis:

• Deprivation of liberty safeguards: resources - GOV.UK (www.gov.uk) (opens in a new window)

Department of Health Guidance: Response to Supreme Court Judgement/Deprivation of Liberty Safeguards (Department of Health, 2015)

This advice note offers guidance in response to the Supreme Court judgement in relation to the case of Cheshire West and clarifies the acid test in determining what constitutes a deprivation of liberty: Department of Health advice note regarding the Cheshire West judgement (opens in a new window).

Coroner’s Services and Investigations (Ministry of Justice, 2014)

There is a legal duty to inform the Coroner of any death that has occurred whilst a person is subject to the Deprivation of Liberty Safeguards. The responsibility to notify is shared between the supervisory body and the managing authority.

Coroners no longer have a duty to undertake an inquest into the death of every person who was subject to an authorisation under the Deprivation of Liberty Safeguards (known as DoLS) under the Mental Capacity Act 2005. 

Any person with any concerns about how or why someone has come to their death can contact the coroner directly. This will not change where a person subject to a DoLS authorisation.

Download the short guide to Coroner Services and Coroner Investigations (opens in a new window).

Note that a person may also be subject to a deprivation of liberty whilst in a domestic setting, such as supported living arrangements, where the State is responsible for imposing such arrangements. Whilst such situations do not come within the remit of the Deprivation of Liberty Safeguards (they must instead be authorised by the Court of Protection; the same procedure should be followed for informing the Coroner.

3.1.18. NHS accountability and assurance framework

NHS Accountability and Assurance Framework (Department of Health, 2022)

The NHS Accountability and Assurance Framework (opens in a new window) sets out the safeguarding roles, duties and responsibilities of all organisations in the NHS.

3.1.19. Modern Slavery Act 2015

The Modern Slavery Act 2015

The Modern Slavery Act 2015 (opens in a new window) categorises offences of ‘slavery, servitude and forced or compulsory labour’, and ‘human trafficking’ which includes knowingly holding a person in a position of slavery, servitude, forced or compulsory labour, or facilitating their travel with the intention of exploiting them during or soon after.

In 2023, the Home Office received 17,004 referrals of potential victims of modern slavery, which was similar to the preceding year (16,921). This is the highest number of annual referrals since the National Referral Mechanism (NRM) began.

You can access the Home Office documents and materials related to modern slavery here: Modern slavery - GOV.UK (www.gov.uk) (opens in a new window)

Duty to notify the Home Office of suspected victims of modern slavery

Specified public authorities, which includes the police and local authorities, are required to notify the Home Office about any potential victims of modern slavery they encounter in England and Wales.

There are two routes of referral to the Home Office under the Modern Slavery Act duty to notify. They are the National Referral Mechanism (NRM) where consent is obtained and the Duty to Notify (DtN) for situations in which the adult does not consent.

For further information and to start the online form, see Report modern slavery (opens in a new window).

Unseen (opens in a new window) provide an overview of the most common signs of modern slavery and exploitation – starting with general signs and then detailing signs of:

• labour exploitation
• sexual exploitation
• domestic servitude
• criminal exploitation
• child exploitation

3.1.20. Office of the Public Guardian Safeguarding Policy

The Office of the Public Guardian (OPG) (opens in a new window) can investigate concerns about an attorney acting under a registered Enduring Power of Attorney (EPA), or Lasting Power of Attorney (LPA), or a deputy appointed by the Court of Protection. This policy outlines the role and powers of the OPG in relation to safeguarding adults.

3.1.21. Pressure Ulcer Safeguarding Adults Protocol

Safeguarding Adults Protocol – Pressure Ulcers and the interface with Safeguarding Enquiries (Department of Health and Social Care, 2018)

This guidance aims to assist practitioners and managers across health and social care services to provide appropriate responses to individuals who are at risk of developing pressure ulcers. Where pressure ulcers do occur, the guidance offers a clear process for the clinical management of reducing the risk of harm whilst considering if a safeguarding response under Section 42 of the Care Act is necessary: Safeguarding adults protocol: pressure ulcers and raising a safeguarding concern - GOV.UK (www.gov.uk) (opens in a new window)

3.1.22. Prevent

Revised Prevent Duty Guidance for England and Wales (HM Government, 2016)

The Prevent Strategy (opens in a new window) is part of the government’s response to counter terrorism. Its aim is to reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism. Prevent offers guidance to authorities on the duty in the Counter Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism.

3.1.23. Prevention in adult safeguarding

Prevention in Adult Safeguarding (Social Care Institute of Excellence(SCIE))

The Prevention in Adult Safeguarding (Social Care Institute of Excellence, 2011) (opens in a new window) report shares findings from research, policy and practice on prevention in adult safeguarding and presents a wide range of approaches that can help prevent abuse and neglect.

3.1.24. Roles and responsibilities in health and care services

Safeguarding: Roles and Responsibilities in Health and Care Services (Department of Health, Local Government Association, ADASS, Association of Chief Police Officers, 2013)

This guidance provides clarity around the roles and responsibilities of the key agencies involved in adult safeguarding. The aim is to ensure that the right things are done by the right people at the right time, working within the own agency and with partners:

• Safeguarding adults: roles and responsibilities in health and care services | Local Government Association (opens in a new window)

3.1.25. Discriminatory abuse self-assessment tool

The discriminatory abuse self-assessment tool (Local Government Association) (opens in a new window) is intended to support councils, Safeguarding Adult Boards (SABs), practitioners from all sectors, staff responsible for reporting adult social care (ASC) performance, safeguarding leads and commissioners.

This tool aims to better identify, report, and analyse activity; be aware of any bias and challenge discriminatory abuse in their practice; develop processes and policies on tackling discriminatory abuse; and embed good practice to deliver good equality outcomes for people who have care and support needs. In attempting to understand discriminatory abuse, all partners and professionals also need to understand the underlying principles and practice of equity, equality, diversity and inclusion.