The laws that affect you as a care services provider and those in your care
The new Care Act brings together care and support legislation into a single legal act with a new wellbeing principle at its heart and that reflect modern standards, modern expectations and modern practices. The Act pulls together threads from over a dozen different acts into a single, modern framework for care and support.
But it is far from being a mere compilation, it fundamentally reforms how the law works, prioritising people’s wellbeing, needs and goals so that individuals will no longer feel like they are battling against the system to get the care and support they need. It highlights the importance of preventing and reducing needs, and putting people in control of their care and support.
Mental Capacity Act 2005
The Mental Capacity Act 2005 sets out five statutory principles.
Principle 1: A presumption of capacity
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions
A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
Principle 3: Unwise decisions
People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.
Principle 4: Best interests
If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.
Principle 5: Less restrictive option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. In essence, any intervention should be proportional to the particular circumstances of the case.
Autism Act 2009
In March 2010 the first ever strategy for improving the lives of adults with autism in England was published.
The Autism Act 2009 committed the Government to publishing an adult autism strategy to transform services for adults with autism.
The strategy sets out a number of key actions and recommendations focusing on five key areas:
- Increasing awareness and understanding of autism
- Developing a clear and consistent pathway for diagnosis
- Improving access to the services and support people need to live independently within the community
- Enabling local partners to develop relevant services to meet identified needs and priorities
Health and Social Care Act 2008
The Health and Social Care Act 2008 established the Care Quality Commission (CQC) as the regulator of all health and adult social care services.
It is a single Act of Parliament that contains the commission's powers and duties, and represents the modernisation and integration of health and social care. It contains some new powers of enforcement that were not held by any of the predecessor organisations.
CQC's approach is outcome focussed and it places the views and experiences of people who use services at the centre of regulation. CQC achieve this in a number of ways, including:
- continual monitoring of activities undertaken by providers
- an emphasis on seeing, hearing, observing and describing services through a number of methods, including regular, timely inspection
- considering the views and experience of people who use services in the decisions that CQC take
- the use of information and intelligence to inform their decisions and judgements
- taking timely action to identify and address poor practice. CQC use their enforcement powers proportionately
Safeguarding Vulnerable Groups Act 2006
The Safeguarding Vulnerable Groups Act 2006 was passed to ensure that all persons who wish to work with children or vulnerable adults are registered with a central body. This central body was the Independent Safeguarding Authority (ISA). Under the Act it is a criminal offence for an employer to employ someone on the barred list or for that individual to seek work in a care position.
The Protection of Freedoms Act 2012 amends the Safeguarding Vulnerable Groups Act 2006 and merges the functions previously carried out by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA).
The principles of the Safeguarding Adults – Multi-agency Policy, Procedures and Guidance, Southampton, Hampshire, Isle of Wight and Portsmouth are:
- Safeguarding is everyone's business
- Living a life that is free from harm and abuse is a fundamental right of every person
- The right of the person to be heard throughout the safeguarding process is a critical element in driving to ensure more personalised care and support
The aim of the policy is to make sure that each adult maintains choice, safety, good health, good quality of life, dignity and respect. It ensures that:
- The human rights of persons at risk of abuse, neglect or exploitation are respected and upheld
- The needs and interests of persons at risk are always respected and upheld
- A proportionate, timely, professional and ethical response is made to any person at risk who may be experiencing abuse, neglect or exploitation
- Person-led safeguarding follows the principle of "no decision about me without me"
- The local authority, police, and NHS organisations need to work together to:
- promote safer communities in order to prevent harm and abuse
- deal well with suspected or actual cases of harm and abuse
The six principles of safeguarding are:
- Empowerment – Presumption of person led decisions and informed consent
- Protection – Support and representation for those in greatest need
- Prevention – It is better to take action before harm occurs
- Proportionality – Proportionate and least intrusive response appropriate to the risk presented
- Partnership – Local solutions through services working with their communities
- Accountability – Accountability and transparency in delivering safeguarding
People must report concerns.
Data Protection Act 1998
The Data Protection Act 1998 is clear about how to record, store and share information.
There are eight principles within the Data Protection Act:
- Personal data shall be processed fairly and lawfully
- Personal data shall be obtained only for one or more specified and lawful purposes
- Personal data shall be adequate, relevant and not excessive
- Personal data shall be accurate and kept up to date
- Personal data processed for any purpose shall not be kept for longer than is necessary for that purpose
- Personal data shall be processed appropriately
- Appropriate technical and organisational measures shall be taken to protect data
- Personal data shall not be transferred to another country without secure safeguards
In practice this means you:
- record information on the correct form
- use information appropriately
- record the information you need and keep it up to date
- file records correctly
- keep records in a lockable cabinet in a locked office
- use passwords on computers, memory sticks and other data storage devices
- only discuss individuals in a private place with people who need to know
- do not transfer information abroad without your manager's permission
Never give an individual's information to someone else unless you have the individual's express permission to share that piece of information with that person, or you have the permission of your manager.
Human Rights Act 1998
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone is entitled to:
- Right to life
- Freedom from torture and inhuman or degrading treatment
- Freedom from slavery and forced labour
- Right to liberty and security
- Right to a fair trial
- No punishment without law
- Respect for your private and family life, home and correspondence
- Freedom of thought, belief and religion
- Freedom of expression
- Freedom of assembly and association
- Right to marry and start a family
- Protection from discrimination
These rights apply to every person you support who is over 18 years old, irrespective of any abilities they may or may not have. It is your role to actively promote these rights and ensure each individual you support is aware of them and can access them.
Equality Act 2010
The Equality Act 2010:
- established the Commission for Equality and Human Rights
- makes discrimination unlawful
- acts as an umbrella act for other pieces of legislation
Previously, if a woman who is black, a lesbian and a wheelchair user was discriminated against, she would have had to decide which aspect of her life was chosen to prevent her getting promoted. Because we know people are discriminated against for many reasons, she can get protection and redress within one umbrella law.
This law also covers anyone who has a caring role towards someone who is disabled.
The Disability Discrimination Act 1995 and 2005 (now included in The Equality Act) gives disabled people rights to challenge discrimination in the areas of employment, education, access to goods facilities and services, buying or renting land or property and how public bodies work.
The Sex Discrimination Act 1975 amended 1982 and 1999 (now included in The Equality Act) makes it illegal for employers to discriminate against another person on the grounds of sex, marital status or gender reassignment.
The Race Relations Act 1976 amended 2000 and 2003 (now included in The Equality Act) makes it illegal to employ, 'sack' or promote anyone purely on the basis of the colour of his or her skin or race. Employers must promote equality of opportunity and positive relationships between people of different racial groups and eliminate racial discrimination.
Equal Pay Act 1970
The Equal Pay Act 1970 makes it illegal for employers to discriminate between men and women by paying them differently or providing different pay and conditions if they are doing the same work, or similar work of equal value.
Health and Safety at Work Act 1974
The Health and Safety at Work Act 1974 is the primary piece of legislation covering occupational health and safety. This piece of legislation is an 'umbrella' Act which covers other regulations which relate to health and safety. Everyone has rights and responsibilities under this legislation. Your employer should display a copy of this Act on their main premises.
The main purpose of the legislation is to:
- secure the health, safety and welfare of people at work
- protect others from risks arising from the activities of people at work
- control the use and storage of dangerous substances
- control the emission into the atmosphere of noxious or offensive substances
You will also need to be aware of your rights and responsibilities under the Health and Safety at Work Act 1974. Under this legislation you have the responsibility to:
- take reasonable care for your own and others' safety
- cooperate with your employer
- use equipment correctly
- do not misuse or interfere with anything provided for your safety
- report any concerns
Other key pieces of legislation that sit under the umbrella of the Health and Safety at Work Act are:
- The Management of Health and Safety at Work Regulations 1999 emphasise what employers are required to achieve under the Health and Safety at Work Act.
- The Control of Substances Hazardous to Health Regulations 2002 (COSHH) requires employers to control substances that can harm workers' health.
- The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1989 (RIDDOR) sets out what needs to be reported.
- The Manual Handling Regulations 1992 set out requirements for manual handling and moving and handling of people. You and your employer must avoid hazardous manual handling operations as far as possible, assess all hazardous manual handling operations that cannot be avoided and reduce the risk of injury as far as possible.
- The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) relate to specific equipment your employer provides for you to lift or move people and objects. Equipment must be fit for purpose.
- The Health and Safety (First Aid) Regulations 1981 set out how employers can keep people safe in relation to first aid, including how many staff need to be trained in first aid and to what level.
- The Provision and Use of Work Equipment Regulations 1998 (PUWER) set out employer and staff rights and responsibilities when providing equipment for staff to use at work. Equipment must be safe to use and used only for its original intention.