5.1. Appendix 1: Legal remedies

5.1.1. Introduction

The following information outlines the Legal Remedies which may be considered for different types of adult safeguarding scenarios. Please note that links to external sites open in a new window.

5.1.2. Physical abuse

Offences Against the Person Act 1861 - a criminal prosecution, this Act contains core criminal offences relating to assaults including, actual and grievous bodily harm, wounding with intent and unlawful wounding, including assaults causing cuts, serious damage to internal organs and broken bones, the administration of drugs or noxious substances so as to cause harm (a prosecution would have to be brought by the police).

Civil action could be taken for assault, battery or false imprisonment (restraint). The client or their representative should take legal advice from either the Citizen's Advice Bureau or an independent solicitor.

A Criminal Injuries Compensation claim can be made via Gov.uk, Claim compensation if you were the victim of a violent crime.

The Police and Criminal Evidence Act 1984 Section 17 is a police power to enter and save life.

The Family Law Act 1996 can be used to obtain injunctions against perpetrators; non-molestation and occupation orders.

The Domestic Violence Crimes and Victims Act 2004 creates an offence of causing or allowing the death of a child or Vulnerable Adult, where they have died of an unlawful act. The household member must have failed to take reasonable steps to protect the victim and the victim must have been at serious risk of physical harm, demonstrated by a history of violence towards the vulnerable person. ‘Vulnerable Adult’ in this Act means a person aged 16 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.

Young people under 18 years of age are also covered by Sussex Child Protection Procedures.

5.1.3. Sexual abuse

Criminal prosecution - Sexual Offences Act 2003. There are specific offences that deal with adults who lack the ability to consent to sexual relations and/or have a mental disorder. Section 4 makes it an offence to cause a person to engage in sexual activity without consent. Sections 30-44 provide various offences against people who lack capacity and/or have a mental disorder, including specific offences for care workers. There is a defence to these offences if the individual did not know and had no reason to suspect that the person had a mental disorder.

Civil action could be taken by the individual, but they should take legal advice from either the Citizen's Advice Bureau or an independent solicitor.

5.1.4. Psychological abuse

Protection from Harassment 1997 can be used by Police or individual to obtain an injunction. Refer also to the Crime and Disorder Act 1998.

The Equality Act 2010 can be referred to if someone is being treated unfavourably on the grounds of their age, disability, gender reassignment, marriage, civil partnership, pregnancy, maternity, race, religion or belief, sex or sexual orientation.

5.1.5. Neglect

Note: the Legal Remedies below could also apply to self-neglect and organisational abuse.

s5 MCA 2005 if we reasonably believe that it is in the best interests of an adult that lacks capacity, we can take steps to provide that care and treatment, including removing them to a place of safety.

 Criminal law - statute and common law can be considered, including:

• s44 MCA 2005makes it an offence for a person with care of an adult who lacks capacity, or who holds and LPA/EPA, or a deputy appointed by the Court, to wilfully neglect or ill-treat the adult.
• ss20-25 Criminal Justice and Courts Act 2015makes it an offence for a care worker, or care provider, to ill-treat or wilfully neglect an individual in their care.

Police and Criminal Evidence Act 1984, section 17 is a Police power to enter and save life.

Referral to the Care Quality Commission in circumstances in which a provider is failing to meet the national standards of quality and safety. See: Contact us or report a concern | OLS (cqc.org.uk) 

5.1.6. Self-neglect

Sections 9-13 Care Act 2014 and associated Regulations - duty to assess. The local authority may be able to help manage self-neglect concerns by completing a formal assessment and putting in a care package or higher support to the individual, carer and/or family. We should also consider our duty to promote well-being as set out in section 1 Care Act 2014.

If, through a person’s, self-neglect, their right, or ability to continue to reside in their accommodation is at risk, then a referral to the relevant housing authority for assistance under any relevant housing legislation should also be considered.

Also see section above on Neglect.

5.1.7. Financial abuse

Lasting Powers of Attorney (LPA) were introduced by the Mental Capacity Act 2005.

These replace the former Enduring Powers of Attorney that, after 1 October 2007, can no longer be created. An LPA is a legal document that lets a person (‘the Donor') appoint someone they trust (‘the Attorney') to make decisions on their behalf.

There are two types of Lasting Power of Attorney (LPA):

• Finance and Property - allows the Donor to choose someone to make decisions about how to spend his/her money, including the management of his/her property and affairs.
• Health and Welfare - allows the Donor to choose someone to make decisions about their healthcare and welfare. This includes decisions to refuse or consent to treatment on his/her behalf and deciding where to live.

The LPA must be registered with the Office of the Public Guardian in order to have legal standing. A registered LPA can be used at any time, whether the person making the LPA has the mental capacity to act for himself or not. Once the LPA is registered it continues indefinitely. The LPA can be registered by the Attorney after the Donor has lost capacity. An LPA can also be cancelled by the Donor, provided he has the mental capacity to do so.

The relevant agency can make representations to the Office of the Public Guardian if there is reasonable belief that someone may not be acting in an individual's best interests.

A person given a power under an Enduring Power of Attorney (EPA) before 1 October 2007 can still use it and apply to have it registered.

Further information about LPAs can be found on the website for the Office of the Public Guardian.

An adult in receipt of benefits, who is unable to manage their affairs can appoint a person to do so on their behalf. These are known as “Appointees”. An Appointee may be an individual, or an organisation, such as a firm of Solicitors. As an Appointee they are responsible for making and maintaining any benefits claims on behalf of the adult.

The Department of Works and Pensions (DWP) should be contacted if an agency has reason to suspect that an Appointee is not acting properly under the terms of their appointment, the adult is clearly able to manage their own benefits, or the Appointee becomes incapable. The DWP should then take steps to investigate whether the Appointeeship should continue.

Further information about Appointeeships can be found on the Government website.

The Mental Capacity Act 2005 provides for the Court of Protection to make decisions in relation to the property and affairs, healthcare and personal welfare of adults (and in certain cases, children) who lack capacity.

The Court has the same rights, privileges and authority in relation to mental capacity matters as the High Court. The Court has the powers to:

• decide whether a person has capacity to make a particular decision for themselves,
• make declarations, decisions or orders on financial or welfare matter affecting people who lack capacity to make such decisions,
• appoint deputies to make decisions for people lacking capacity to make those decisions,
• decide whether an LPA or EPA is valid,
• remove deputies or attorneys who fail to carry out their duties; and
• hear cases concerning objections to register an LPA or EPA.

In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act. It must also make sure its decision is in the best interests of the person who lacks capacity.

Criminal Prosecution - the Police can consider whether a perpetrator of financial abuse may be prosecuted for theft under the Theft Act 1968. For fraud, both the police and local authority Trading Standards Service can consider various offences under the Fraud Act 2006.

5.1.8. Organisational abuse

Consider the Legal Remedies identified in the sections relating to: physical, sexual, psychological, financial abuse and neglect.

Corporate Homicide Act 2007 – an organisation is guilty of an offence under this Act if the way in which its activities are managed or organised:

• causes a person’s death; and
• amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

An organisation is only guilty of an offence under this Act if the way in which its activities are managed or organised by senior management are a substantial cause of the breach of duty.

5.1.9. Domestic violence

Consider the Legal Remedies identified in the sections relating to: physical, sexual, psychological, financial abuse and neglect.

5.1.10. Modern slavery

The Human Rights Act 1998 incorporates Article 4 of the European Convention on Human Rights – Prohibition of slavery and torture.

Criminal law, such as Offences Against the Person Act 1861, kidnapping and false imprisonment.

Civil law, such as the tort of false imprisonment.

5.1.11. Support to individual and family

Sections 9-13 Care Act 2014 and associated Regulations - duty to assess. The local authority may be able to help manage some adult safeguarding concerns by completing a formal assessment and putting in a care package or higher support to the individual, carer and/or family. We should also consider our duty to promote well-being as set out in section 1 Care Act 2014.

If an adult’s right, or ability to continue to reside in their accommodation is at risk, then a referral to the relevant Housing Authority for assistance under any relevant housing legislation should also be considered.

5.1.12. Removal of the person thought to be the cause of risk

Consider whether to involve the police.

Family Law Act 1996 - injunctions; non-molestation and occupation orders.

Civil injunction - would need the individual to take legal advice from an independent solicitor or Citizen's Advice Bureau.

Mental Health Act 1983 - removal for assessment and/or treatment.

5.1.13. Removal of subject

Mental Health Act 1983 - removal for assessment and/or treatment.

5.1.14. Deprivation of Liberty Safeguards

The Mental Capacity Act Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 1983.

The MCA DOL safeguards apply to anyone:

• aged 18 and over,
• who suffers from a mental disorder or disability of the mind, such as dementia or a profound learning disability, but may include some people who have, for example, suffered a brain injury,
• who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment, and
• for whom deprivation of liberty (within the meaning of Article 5 of the EHCR) is considered after an independent assessment to be necessary in their best interest to protect them from harm.

The safeguards do not apply to people detained under the Mental Health Act 1983.

The safeguards cover:

• patients in hospitals, and
• people in care homes registered under the Care Standards Act 2000 or the Health and Social Care Act 2008 (regulated Activities) Regulations 2014,
• whether placed under public or private arrangements.

The safeguards are designed to protect the interest of an extremely vulnerable group of service users and to:

• ensure people can be given the care they need in the least restrictive regimes,
• prevent arbitrary decisions that deprive vulnerable people of their liberty,
• provide safeguards for vulnerable people,
• provide them with rights of challenge against unlawful detention.

What do the safeguards cover?

• They provide legal protection for those individuals who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR.
• Every effort should be made, in both commissioning and providing care or treatment, to prevent deprivation of liberty. If deprivation of liberty cannot be avoided, it should be for no longer than is necessary.
• The safeguards provide for deprivation of liberty to be made lawful through `standard' or `urgent' authorisation processes. These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge deprivation of liberty authorisations.
• The deprivation of liberty safeguards mean that the relevant hospital or care home must seek authorisation from a `supervisory body', which includes a primary care trust, a local authority or a local health board, in order to be able lawfully to deprive someone of their liberty. Before giving such authorisation, the supervisory body must be satisfied that the person has a mental disorder as defined in section 1 of the Mental Health Act 1983 (as amended by the Mental Capacity Act 2005) and lacks capacity to decide about their residence or treatment.
• A decision as to whether or not deprivation of liberty arises will depend on all the circumstances of the case. It is neither necessary nor appropriate to apply for a deprivation of liberty authorisation for everyone who is in hospital or a care home simply because the person concerned lacks capacity to decide whether or not they should be there. In deciding whether or not an application is necessary, a managing authority should consider carefully whether any restrictions that are, or will be, needed to provide on-going care or treatment amount to a deprivation of liberty when looked at together.

The MCA DOLS cover:

• How an application for authorisation should be applied for.
• How an application for authorisation should be assessed.
• The requirements that must be fulfilled for an authorisation to be given.
• How an authorisation should be reviewed.
• What support and representation must be provided for people who are subject to an authorisation.
• How people can challenge authorisations.

While the MCA DOL might be for the purpose of giving treatment, the DOL authorisation does not itself authorise treatment. Treatment in these circumstances may only be given with the person's consent (if they have capacity) or in accordance with the wider provisions of the Mental Capacity Act.

MCA DOLS must never be used as a form of punishment or for the convenience of carers or professionals.