This section provides a summary to key legislation relating to practice, and provides a link to the full legislative document for further information and reading.
- 1. Care Act 2014
- 2. Carers (Recognition and Services) Act 1995, Carers and Disabled Children Act 2000, Carers (Equal Opportunities) Act 2004
- 3. Children Act 2004
- 4. Civil Partnership Act 2004
- 5. Control of Substances Hazardous to Health Regulations 2002
- 6. Data Protection Act (DPA) 2018
- 7. Disability Discrimination Act (DDA) 1995
- 8. Equality Act 2010
- 9. Food Safety Act 1990, Food Safety (General Food Hygiene) Regulations 1995 and Food Safety (Temperature Control) Regulations 1995
- 10. Freedom of Information Act 2000
- 11. Health and Safety at Work Act 1974
- 12. Health and Safety (First Aid) Regulations 1981
- 13. Health & Social Care Act 2012
- 14. Human Rights Act 1998
- 15. Manual Handling Operations Regulations 1992 (amended 2002)
- 16. Marriage (Same Sex Couples) Act 2013
- 17. Mental Capacity Act (MCA) 2005
- 18. Mental Health Act 2007
- 19. National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012, Revised), The
- 20. National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, The
- 21. Public Interest Disclosure Act 1998
- 22. PUWER regulations 1998
- 23. Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995
- 24. Safeguarding Vulnerable Groups Act 2006 and the Protection of Freedoms Act 2012
- 25. Sexual Offences Act 2003
1. Care Act 2014
The Care Act 2014 came in to effect on 1st April 2015, introducing the most significant overhaul of social care legislation in many years. The Act was presented as:
“An Act to make provision to reform the law relating to care and support for adults and the law relating to support for carers; to make provision about safeguarding adults from abuse or neglect; to make provision about care standards; to establish and make provision about Health Education England; to establish and make provision about the Health Research Authority; to make provision about integrating care and support with health services; and for connected purposes.” (Care Act 2014, introductory text)
The Care Act replaces and repeals a significant amount of primary and secondary legislation, either in full or in part. It is worth noting that some elements of previous legislation are not fully repealed by the Act, as highlighted in the Legislation revoked by the Care Act table and CA Annex I – Repeals and revocations appendix of the Statutory Guidance.
See Care Act 2014 for the full text of the Act.
The Act is accompanied by a statutory guidance document. The Care Act guidance can be viewed in full or by chapter at the links below.
- Care Act Guidance
- CA 1. Promoting wellbeing
- CA 2. Preventing, reducing or delaying needs
- CA 3. Information and advice
- CA 4. Market shaping and commissioning of adult care and support
- CA 5. Managing provider failure and other service interruptions
- CA 6. Assessment and eligibility
- CA 7. Independent advocacy
- CA 8. Charging and financial assessment
- CA 9. Deferred payment agreements
- CA 10. Care and support planning
- CA 11. Personal budgets
- CA 12. Direct payments
- CA 13. Review of care and support plans
- CA 14. Safeguarding
- CA 15. Integration cooperation and partnerships
- CA 16. Transition to adult care and support
- CA 17. Prisons approved premises and bail accommodation
- CA 18. Delegation of local authority functions
- CA 19. Ordinary residence
- CA 20. Continuity of care
- CA 21. Cross-border placements
- CA 22. Sight registers
- CA 23. Transition to the new legal framework
- CA Annex A – Choice of accommodation and additional payments
- CA Annex B – Treatment of capital
- CA Annex C – Treatment of income
- CA Annex D – Recovery of debts
- CA Annex E – Deprivation of assets
- CA Annex F – Temporary and short-term residents in care homes
- CA Annex G – The process for managing transfers of care from hospital for patients with care and support needs
- CA Annex H – Ordinary residence
- CA Annex I – Repeals and revocations
- CA Annex J – Glossary
2. Carers (Recognition and Services) Act 1995, Carers and Disabled Children Act 2000, Carers (Equal Opportunities) Act 2004
These Acts are concerned with:
- adults (people aged 18 and over) who provide, or intend to provide, a substantial amount of care on a regular basis
- children and young people (under 18) who provide, or intend to provide, a substantial amount of care on a regular basis. This also includes siblings of disabled children
- parents who provide, or intend to provide, a substantial amount of care on a regular basis for children with a disability
A Carers Assessment
A carer is entitled, on request, to an assessment of need when a local authority carries out an assessment for the person cared for, in respect of community care services or services for children. Social Services must inform carers of this right.
To view the full Acts, please see:
- Carers (Recognition and Services) Act 1995
- Carers and Disabled Children Act 2000
- Carers (Equal Opportunities) Act 2004
3. Children Act 2004
The Children Act 2004 amended the Children Act 1989, largely in consequence of the Victoria Climbié inquiry.
The Act identifies and places a responsibility on child practitioners to work together to help a child meet the following five priority outcomes:
- Be healthy
- Stay safe
- Enjoy and achieve
- Make a positive contribution
- Achieve economic wellbeing
The Act also made changes to laws that pertain to children, notably on foster homes, adoption agencies, babysitting services, and the handling of child related crimes and crimes against children (unless it is the local authorities committing the crimes).
Please see Children Act 2004 (Legislation, Government website) to view the full Act.
4. Civil Partnership Act 2004
This Act grants civil partnerships in the United Kingdom with rights and responsibilities almost identical to civil marriage. Civil partners are entitled to the same property rights as married opposite sex couples, the same exemption as married couples social security and pension benefits, and also the ability to get parental responsibility for a partner’s children, as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.
Please see Civil Partnership Act 2004 (Legislation, Government website) to view the full Act.
The Marriage (Same Sex Couples) Act 2013 (see Marriage (Same Sex Couples) Act 2013), which received Royal Assent on 17 July 2013, grants those registered in a civil partnership in England or Wales the ability to convert their partnership into a marriage, with all of the equal rights and responsibilities of civil marriage.
5. Control of Substances Hazardous to Health Regulations 2002
In the care sector, these regulations apply to cleaning materials and medications that may be dangerous if not used properly. Care providers must protect staff and service users from harm by ensuring that potentially dangerous substances are safely stored and that the staff who use them are properly trained to do so.
Please see Control of Substances Hazardous to Health Regulations 2002 to view the full Act.
6. Data Protection Act (DPA) 2018
The DPA 2018 sets out the framework for data protection law in the UK. It updates and replaces the Data Protection Act 1998, and came into effect on 25 May 2018.
It sits alongside the General Data Protection Regulation (GDPR), and tailors how the GDPR applies in the UK – for example by providing exemptions. It also sets out separate data protection rules for law enforcement authorities, extends data protection to some other areas such as national security and defence, and sets out the Information Commissioner’s functions and powers.
The Act introduces four data protection regimes into UK Data Protection law. Each regime focuses on the regulation of personal data processing for a specific type or category of data processing. The four regimes cover processing:
- within the scope of the GDPR;
- outside the scope of the GDPR;
- by competent authorities for law enforcement purposes; and
- by the intelligence services.
Please see Data Protection Act 2018 (Legislation, Government website) to view the full Act and Guide to the General Data Protection Regulation (GDPR) for more information about GDPR.
7. Disability Discrimination Act (DDA) 1995
The Disability Discrimination Act 1995 (DDA) is an Act of the Parliament of the United Kingdom which has now been repealed and replaced by the Equality Act 2010 (see Equality Act 2010), except in Northern Ireland where the Act still applies. Formerly, the Act made it unlawful to discriminate (either directly or indirectly) against people in respect of their disabilities, in relation to employment, the provision of goods and services, education and transport.
Please see Disability Discrimination Act 1995 (Legislation, Government website) to view the full Act – please note that the Act has now been replaced by the Equality Act 2010 (see Equality Act 2010).
8. Equality Act 2010
The Equality Act came into force on 1 October 2010. It replaces the Disability Discrimination Act 1995 and brings together over 116 separate pieces of legislation into one single Act. Combined, they make up a new Act that provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.
The Act simplifies, strengthens and harmonises the current legislation to provide a new discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
Please see Equality Act 2010 (Legislation, Government website) to view the full Act.
9. Food Safety Act 1990, Food Safety (General Food Hygiene) Regulations 1995 and Food Safety (Temperature Control) Regulations 1995
The Food Safety Act covers the preparation, storage and service of food and requires that food businesses are registered whether they are run for profit or not. A ‘food business’ includes canteens, clubs and care homes. The CQC requires that care services ensure that the food and drink they provide is handled, stored, prepared and delivered in a way that meets the requirements of the Act. The local authority is responsible for enforcement through environmental health and Trading Standards. The Food Standards Agency (FSA) can intervene where local authorities fail to meet the requirements and in emergency situations.
For full information, please see:
- Food Safety Act 1990
- Food Safety (General Food Hygiene) Regulations 1995
- Food Safety (Temperature Control) Regulations 1995
10. Freedom of Information Act 2000
The Freedom of Information Act 2000 provides public access to information held by public authorities.
It does this in two ways:
- Public authorities are obliged to publish certain information about their activities and
- Members of the public are entitled to request information from public authorities
The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. Information held by Scottish public authorities is covered by Scotland’s own Freedom of Information (Scotland) Act 2002. Public authorities include government departments, local authorities, the Police and Health.
The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind.
This means that:
- everybody has a right to access official information. Disclosure of information should be the default – in other words, information should be kept private only when there is a good reason and it is permitted by the Act
- an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information
- you must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers and
- because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large
You have two main obligations under the Act. You must:
- publish certain information proactively
- respond to requests for information
In addition, three codes of practice contain recommended good practice when applying the Act:
- The section 45 code of practice gives recommendations for public authorities about their handling of requests. It covers the situations in which you should give advice and assistance to those making requests; the complaints procedures you should put in place; and various considerations that may affect your relationships with other public bodies or third parties
- There is an additional section 45 code of practice on datasets. This provides guidance to public authorities on how to meet their obligations in relation to the dataset provisions in sections 11, 11A, 11B and 19 of the Act
- The section 46 code of practice covers good records management practice and the obligations of public authorities under the Public Records Acts to maintain their records in an ordered and managed way, so that they can readily retrieve information when it is needed
These codes of practice are not directly legally binding but failure to follow them is likely to lead to breaches of the Act. In particular, there is a link between following part II of the section 45 code of practice and complying with section 16 of the Act. Section 16 requires you to provide applicants with reasonable advice and assistance. This includes advice and assistance to members of the public before they have made their request.
Please see Freedom of Information Act 2000 (Legislation, Government website) to view the full Act.
11. Health and Safety at Work Act 1974
The Act covers a wide range of issues relating to workplace health, safety and welfare across different sectors. Statutory instruments have been developed to support the implementation of the Act and provide an interface with European regulations. The HSE holds enforcement powers which can result in unlimited fines and prison sentences. Employees have a general obligation under the Act to take care of others and cooperate with employers’ health and safety requirements.
Please see Health and Safety at Work Act 1974 to view the full Act.
12. Health and Safety (First Aid) Regulations 1981
Employers must ensure that first aid equipment and trained first-aiders are present in the workplace and that employees are aware of first aid arrangements.
Please see Health and Safety (First Aid) Regulations 1981 to view the full Act.
13. Health & Social Care Act 2012
The Health and Social Care Act 2012 is an Act of the Parliament of the United Kingdom. It is the most extensive reorganisation of the structure of the National Health Service in England to date.
The Act abolished NHS primary care trusts (PCTs) and Strategic Health Authorities (SHAs) and “commissioning”, or health care funds, were transferred from the abolished PCTs to several hundred “clinical commissioning groups”, partly run by the general practitioners (GPs) in England. A new executive agency of the Department of Health, Public Health England was established on 1 April 2013.
Please see Health and Social Care Act 2012, (Legislation, Government website) to view the full Act.
14. Human Rights Act 1998
This legislation came into force in October 2000, but continues to be shaped by judicial review. The act includes the following articles:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right. The person who is directly affected by unlawful act or omission may claim against the public authority directly or through another person.
Please see Human Rights Act 1998 (Legislation, Government website) to view the full Act.
15. Manual Handling Operations Regulations 1992 (amended 2002)
Manual handling is a major issue for care providers, as people with limited mobility need to be assisted safely to move and transfer. It is important this is done in a way that respects the dignity of the individual. While employers are required to ensure that they comply with the regulatory framework, this does not mean that an individual’s human rights can be disregarded. What is required is a balanced approach that reduces risks for workers while at the same time maintaining the dignity, privacy and autonomy of those they are caring for. For example, the issues around lifting a person who is clinically obese must be solved not ignored.
A county council, concerned for the health of its employees, imposed a blanket ban on the manual lifting of people using services. Unfortunately this resulted in some people not receiving the community care which they were entitled to. The Court held that the guidelines on manual lifting did not prohibit manual handling of people, nor did it allow the authority to operate a cut-off above which a person would be too heavy to lift manually; failure to lift people could leave them stuck in a bath or on a lavatory, or suffering from bedsores. This created a potential breach of Article 3 of the Human Rights Act: the right not to be subject to inhuman or degrading treatment. Care workers’ rights to a safe working environment must be respected, but these require safe working practices to be devised, not blanket bans that restrict levels of service [R v East Sussex County Council (2003)].
Please see Manual Handling Operations Regulations 1992 (amended 2002) to view the full Regulations.
16. Marriage (Same Sex Couples) Act 2013
The Act is an Act of the Parliament of the United Kingdom which allows same-sex marriage in England and Wales.
The Marriage (Same Sex Couples) Act 2013 grants those registered in a civil partnership in England or Wales the ability to convert their partnership into a marriage, with all of the equal rights and responsibilities of civil marriage.
Please see Marriage (Same Sex Couples) Act 2013 (Legislation, Government website) to view the full Act.
17. Mental Capacity Act (MCA) 2005
Note that there is currently a Select Committee Review of the Mental Capacity Act 2005 which includes a review of the Deprivation of Liberty Safeguards. This may have future implications for this chapter. Any changes will be reflected in future updates.
The Mental Capacity Act provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.
The Mental Capacity Act makes clear who can make decisions in which situations, and how they should go about this. Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.
This applies whether decisions are life changing events or more every day matters and is relevant to adults of any age, regardless of when they lost capacity.
The underlying philosophy of the MCA is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made, or action taken, on their behalf is made in their best interests.
The five key principles in the Act are:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise
- A person must be given all practicable help before anyone treats them as not being able to make their own decisions
- Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms
Please see Mental Capacity Act 2005 (Legislation, Government website) to view the full Act.
Mental Capacity Act Code of Practice
The Code of Practice supports the MCA and provides guidance to all those who care for or make decisions on behalf of adults who lack capacity. The Code includes case studies and clearly explains in more detail the key features of the MCA.
Deprivation of Liberty Safeguards (DoLs)
The Mental Capacity Act Deprivation of Liberty safeguards (formerly known as the Bournewood safeguards) were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007 and implemented in April 2009.
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
- who lacks the capacity to give informed consent to the arrangements made for their care or treatment and
- for whom deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) is considered after an independent assessment to be necessary in their best interests to protect them from harm
The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements. The standard DoLS authorisation process does not apply to community settings. However, in March 2014, the Supreme Court changed the ‘acid test’ for a deprivation to include situations where people are deprived of their liberty in community settings. In situations where there are significant restrictions being placed on a person who lacks capacity that would have the effect of depriving them of their liberty, the Practitioner must demonstrate that an application has been made to the Court of Protection. Legal advice should be sought where a case appears to need an authorisation from the Court.
See the Deprivation of Liberty Briefing for more information (Lincolnshire County Council intranet).
The safeguards are designed to protect the interests of an extremely vulnerable group of people 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
- avoid unnecessary bureaucracy
For more information on DoLS including DoLS Code of Practice, please see Mental Capacity Act 2005: Deprivation of liberty safeguards – Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Department of Health, National Archives website).
18. Mental Health Act 2007
The Mental Health Act 2007 (the 2007 Act) received Royal Assent on 19 July 2007. It amends the Mental Health Act 1983 (the 1983 Act), the Mental Capacity Act 2005 (MCA) and the Domestic Violence, Crime and Victims Act 2004.
Amendments to the Mental Health Act 1983
The 1983 Act is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent. It also sets out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated without their consent. The main purpose of the legislation is to ensure that people with serious mental disorders, which threaten their health or safety or the safety of the public, can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
The following are the main changes to the 1983 Act made by the 2007 Act:
- Definition of mental disorder: it changes the way the 1983 Act defines mental disorder, so that a single definition applies throughout the Act, and abolishes references to categories of disorder
- Criteria for detention: it introduces a new appropriate medical treatment test which applies to all the longer-term powers of detention. As a result, it is be possible for patients to be compulsorily detained, or their detention continued, unless appropriate medical treatment and all other circumstances of the case are available to that patient. These criteria abolished the treatability test
- Professional roles: it is broadening the group of practitioners who can take on the functions currently performed by the approved social worker (ASW) and responsible medical officer (RMO)
- Nearest relative: it gives to patients the right to make an application to the County Court to displace their nearest relative and enables County Courts to displace a nearest relative who it thinks is not suitable to act as such
- Nearest relative: the provisions for determining the nearest relative are amended to include civil partners amongst the list of relatives
- Supervised Community Treatment (SCT): it introduces SCT for patients following a period of detention in hospital. SCT will allow certain patients with a mental disorder to be discharged from detention subject to the possibility of recall to hospital if necessary. This is particularly intended to help avoid situations in which some patients leave hospital and do not continue with their treatment, with the result that their health deteriorates and they require detention again; this is sometimes referred to as the revolving door
- Electro-convulsive therapy: it introduces new safeguards for patients
- Tribunal: it reduces the periods after which hospital managers must refer certain patients’ cases to the Tribunal if they do not apply themselves. It introduces an order-making power to make further reductions in due course
- Independent mental health advocacy: it places a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates
- Age-appropriate services: it requires hospital managers to ensure that patients aged under 18 years admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs)
Please see the Mental Health Act 2007 (Legislation, Government website) to view the full Act.
19. National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (November 2012, Revised), The
This revised framework sets out the principles and processes of the National Framework for NHS continuing healthcare and NHS-funded nursing care (the National Framework). It reflects the new NHS framework and structures created by the Health and Social Care Act 2012 (see Health & Social Care Act 2012) effective from 1 April 2013. Standing Rules Regulations have been issued under the National Health Service Act 2006, and directions are issued under the local authority Social Services Act 1970 in relation to the National Framework – see The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.
Primary Care Trusts (PCTs) have legal duties and responsibilities in relation to NHS Continuing Healthcare. From 1 April 2013 these legal duties responsibilities transfer to clinical commissioning groups and, in the case of serving members of the armed forces and their families, or prisoners, to the National Health Service Commissioning Board.
Please see the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care (Government website) to view the full Framework.
20. National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, The
Please see The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (Legislation, Government website) to view the full document.
21. Public Interest Disclosure Act 1998
An important part of promoting dignity is ensuring a working environment that encourages people to challenge practices in their own workplace. The law offers some protection from victimisation to people who blow the whistle under the Public Interest Disclosure Act (PIDA) 1998. The parameters of ‘protected disclosure’ are set out in the Employment Rights Act (ERA) 1996. The person making the disclosure should not commit an offence in doing so (e.g. breach the Official Secrets Act 1989) and must reasonably believe one or more of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of any individual has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed
Please see Public Interest Disclosure Act 1998 to view the full Act.
22. PUWER regulations 1998
PUWER is an abbreviation for Provision and Use of Work Equipment Regulations 1998. It is often referred to as the PUWER Regs or PUWER 98 regulations. The Provision and Use of Work Equipment Regulations 1998 (PUWER) came into force on 5 December 1998.
PUWER replaces the Provision and Use of Work Equipment Regulations 1992 and carries forward these existing requirements with a few changes and additions, for example the inspection of work equipment and specific new requirements for mobile work equipment. Many aspects of PUWER should therefore be familiar to you.
The PUWER Regulations require risks to people’s health and safety, from equipment that they use at work, to be prevented or controlled. In addition to the requirements of PUWER, lifting equipment is also subject to the requirements of the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) – see The Lifting Operations and Lifting Equipment Regulations 1998 (Legislation, Government website).
Examples of uses of equipment which are covered by the Regulations include starting or stopping the equipment, maintaining, servicing, repairing, modifying, cleaning and transporting.
A full list of items requiring PUWER inspection is available at the Industrial Safety Inspections website.
23. Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995
Employers, the self-employed and ‘responsible persons’ (people in control of work premises) have an obligation to report death or serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses) to the Health and Safety Executive (HSE).
Please see Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 to view the full Act.
24. Safeguarding Vulnerable Groups Act 2006 and the Protection of Freedoms Act 2012
This Safeguarding Vulnerable Groups Act (SVGA) 2006 was passed to help avoid harm, or risk of harm, by preventing people who are deemed unsuitable to work with children and vulnerable adults from gaining access to them through the person’s work. The Independent Safeguarding Authority was established as a result of this Act. On 1 December 2012, the Criminal Records Bureau and Independent Safeguarding Authority merged to become the Disclosure and Barring Service (DBS). Organisations with responsibility for providing services or personnel to vulnerable groups have a legal obligation to refer relevant information to the service.
The Protection of Freedoms Bill (Chapter 1 of Part 5) amends the SGVA 2006, retaining the national barring function whilst abolishing registration and monitoring requirements.
To view the full Acts, please see:
25. Sexual Offences Act 2003
In the past there have been difficulties in bringing prosecutions against people who commit sexual offences against people with mental disorders. The Sexual Offences Act (SOA) 2003 modernised the law by prohibiting any sexual activity between a care worker and a person with a mental disorder while the relationship of care continues. A ‘relationship of care’ exists where one person has a mental disorder and another person provides care. It applies to people working both on a paid and an unpaid basis and includes doctors, nurses, care workers in homes, workers providing services in clinics or hospitals, and volunteers. The offences in the Act relating to care workers apply whether or not the victim appears to consent, and whether or not they have the legal capacity to consent.
This does not prevent care workers from providing intimate personal care so long as the behaviour is not intended to be sexual. The Act is not intended to interfere with the right of people with a mental disorder who have the capacity to consent to engage in sexual activity with anyone who is not in a caring relationship with them.
The SOA also attempts to make the prosecution of rape easier by clarifying the meaning of consent. Section 74 of the Act provides that someone consents to a sexual act if, and only if, he or she agrees by choice and has the freedom and capacity to make that choice.
Please see Sexual Offences Act 2003 to view the full Act.