The Act provides a new framework for safeguarding adults and significantly increases local authority responsibility for health and social care.
- Section 1 (Promoting wellbeing) requires local authorities carrying out any care and support function, to promote a person’s well-being, including mental health and emotional well-being; protection from abuse and neglect; social and economic well-being; personal dignity and their contribution to society. Critically, the Act does not specify the services which must be commissioned.
- Section 6 (Local Co-operation) creates a duty of co-operation between a local authority and partners (police, probation, NHS, local authorities) in relation to adults with needs for care and support.
- Section 43 and Schedule 2 (Safeguarding Adults Boards) require each local authority to establish a Safeguarding Adults Board (SAB) to help and protect adults where there is reasonable cause to suspect they have needs for care and support, are at risk of abuse or neglect, and are unable to protect themselves. Statutory members include CCGs and chiefs of police. Annual strategic plans and reports must be made and shared with the Chair of the local Health and Wellbeing Boards.
- Section 67 (Independent Advocacy Support: requires that, local authorities must, when engaging with a person under the Act, arrange for an independent person to represent, support and facilitate their involvement. This applies when they would experience substantial difficulty in understanding, retaining, using or weighing relevant information or communicating their views.
Though the Act focuses on vulnerable people as victims, its statutory guidance states that, “Everyone is entitled to the protection of the law and access to justice.” It also states that where a suspected abuser “has care and support needs and are unable to understand the significance of questions put to them or their replies, they should be assured of their right to the support of an appropriate adult if they are questioned by the police under the Police and Criminal Evidence Act 1984 (PACE)” (Department of Health, 2014).
 Care and Support Statutory Guidance, Issued under the Care Act 2014, Department of Health
Alongside the Care Act in England, this Act establishes entirely separate social care legislation for England and Wales. Many of the principles and much of the wording are similar to the Care Act 2014. The duties to promote well-being, co-operate and share information are similar.
- Section 132 establishes a National Independent Safeguarding Board, supporting SABs and reporting on them to Ministers
- Section 134 establishes Adult Safeguarding Boards
- Section 1(2) states that ‘mental disorder means any disorder or disability of the mind’. There are several hundred definitions of mental disorders alone (American Psychiatric Association, 2013)11 but include Alzeimer’s disease, autism, Down’s syndrome, dementia, personality disorders, psychosis and schizophrenia. Learning disability (defined as ‘a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning’) is included for most purposes in the Act and always where the ‘disability is associated with abnormally aggressive or seriously irresponsible conduct’. The PACE Codes use this definition, while the PACE Act retains the term ‘mentally handicapped’.
- Section 130A establishes Independent Mental Health Advocates (IMHA) to provide advice and support around rights, options and in raising concerns about the care received for those in secure mental health detention, although they are not legal advisers. IMHAs are provided by various organisations and funded by a Department of Health Grant passed down to local authorities.
The Mental Capacity Act 2005 and Code of Practice set out five principles which provide the framework for defining capacity and best interests.
- Section 1 sets out five underpinning principles:
- presumption of capacity;
- right for individuals to be supported to make their own decisions;
- right to make unwise decisions;
- best interests; and
- the least restrictive intervention.
- Sections 35 and 36 establish Independent Mental Capacity Advocates (IMCAs) to safeguard people to whom authorities are seeking to apply safeguarding powers and enable the local authority to “make such arrangements as it considers reasonable” to ensure IMCA availability.
Most adults who require an AA under the provisions of PACE will not lack capacity. A person does not need to lack capacity in order to require an AA. They are two different test under different pieces of legislation.
If an AA has doubts about whether a person has capacity, and therefore whether they are able to participate effectively, they can request a professional MCA 2005 assessment.
The presumption of capacity and the right to make unwise decisions does not:
- Enable a person to choose not to have an AA if the PACE threshold is met
- Prevent an AA from exercising their power under PACE to ensure a legal representative attends.
The Act requires the Secretary of State to prepare and publish an autism strategy for meeting the needs of adults with autistic spectrum conditions by improving the provision of relevant services to such adults by local authorities, NHS bodies and NHS foundation trusts and to issue guidance to them to ensure implementation.
Under the strategy, ‘Think Autism: Fulfilling and Rewarding Lives’ (HM Government, 2014), priority challenge 13 is “If I break the law, I want the criminal justice system to think about autism and to know how to work well with other services”. People with autism need access to support when suspected of committing a crime. The police should ensure they have access to expertise to support adults with autism.
The Department of Health has published statutory guidance for local authorities and NHS organisations to support implementation of the adult autism strategy. It makes a number of relevant statements: -
- It applies to local authorities and health bodies working with justice system agencies
- Local authorities should ensure they are looking at the needs of their local autism population, including those who do not meet thresholds for care and support.
- Without “preventative support and safeguarding in line with the Care Act” people with autism can spiral into contact with the justice system.
- People with autism need access to support whether they are a victim, or witness, or are suspected of committing a crime.
- When people with autism come into contact with the criminal justice system it is often up to them, or their carer, to explain what having autism means. In some cases, it can positively change the way that police or courts view a situation.
- Police, probation services, courts and prisons should be supported so that they are aware of the communication challenges experienced by people with autism.
- The role local authorities, via Community Safety Partnerships (CSPs), is to bring agencies together to develop plans to support the Autism Strategy.
- The role of health bodies is to deliver on the Liaison & Diversion Programme to ensure people with autism are referred into services and diverted from offending, and to share information to enable more informed decisions about charging, case management and sentencing.
- Article 13 states that "States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages."
- Article 13 also states that, "In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff."