Beyond compliance: adult safeguarding in a changing legal landscape
Adult safeguarding is a core responsibility for care providers and commissioners, but it is also an increasingly complex legal and regulatory area. While compliance with statutory duties remains essential, safeguarding now requires a deeper understanding of overlapping legal frameworks, regulator expectations, and emerging policy reform.
This is particularly important at a time when adult safeguarding arrangements are under renewed scrutiny following the Casey review, which has highlighted concerns about how safeguarding operates in practice and whether the current system provides sufficient protection for adults at risk.
The legal framework for adult safeguarding
The main statutory framework for adult safeguarding in England is the Care Act 2014. It applies where an adult:
- has needs for care and support
- is experiencing, or at risk of, abuse or neglect
- is unable to protect themselves because of those needs
Safeguarding under the Care Act is underpinned by a focus on individual wellbeing and the Making Care Personal approach. Six key principles guide practice: empowerment, prevention, proportionality, protection, partnership and accountability.
The Care Act does not operate in isolation. Safeguarding duties must also be understood alongside other legislation affecting adults who use services, including:
- Regulation 13 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
- The Mental Capacity Act 2005
- The Mental Health Act 1983 (as amended)
Importantly, the Care Act safeguarding framework applies only to adults. Children are protected under a separate statutory regime, most notably the Children Act 1989.
The role of local authorities and section 42 enquiries
Local authorities have lead responsibility for adult safeguarding. Under the Care Act, they must establish multi‑agency safeguarding arrangements and decide how concerns should be investigated and addressed.
A key duty arises under section 42 of the Care Act, which requires a local authority to make enquiries where it reasonably suspects that an adult with care and support needs may be at risk of abuse or neglect. The scope of those enquiries is for the authority to determine, but they must be sufficient to establish the facts and decide whether action is needed, and by whom.
Local authorities also have powers to:
- Support and protect adults at risk
- Arrange independent advocacy where required
- Establish Adult Safeguarding Boards
- Commission Safeguarding Adult Reviews where serious incidents occur
It is this framework that is now being examined as part of the Casey review.
The Casey review: why adult safeguarding is under scrutiny
The Casey review is an independent review of adult safeguarding led by Baroness Louise Casey, commissioned by the government following longstanding concerns about fragmented safeguarding arrangements and inconsistent responses to serious harm.
Baroness Casey was asked to consider whether the current adult safeguarding framework provides sufficient clarity, accountability and leverage in high‑risk situations. Her interim recommendations have focused on a lack of national oversight, limited opportunities for learning from Safeguarding Adult Reviews, and variations in how safeguarding duties are interpreted and applied locally.
One key recommendation is the creation of a National Safeguarding Board, chaired by the Chief Social Worker and reporting to the Minister for Social Care. The proposed board would have responsibility for identifying national safeguarding risks, reviewing Safeguarding Adult Reviews and commissioning thematic reviews to support system‑wide learning. The Department of Health and Social Care has accepted this recommendation in principle and is considering whether the board should be given new statutory powers.
For providers, the review matters because it signals a likely shift towards greater scrutiny, clearer expectations and potentially stronger enforcement tools, alongside continued emphasis on partnership working and accountability.
What safeguarding enquiries mean for providers
Safeguarding enquiries often raise practical and legal challenges for providers, particularly in care home and supported living settings.
Providers are generally expected to co‑operate with section 42 enquiries. In many cases, commissioning contracts require access to be granted and impose duties of candour. Local authorities will usually seek to speak directly with the adult concerned, unless this is not possible.
Key questions in practice include:
- What does the adult want to happen?
- Does the adult have capacity to engage with the process?
- Is an Independent Advocate required?
Where an adult lacks capacity, the Mental Capacity Act 2005 applies. Providers may need to consider best interests decision‑making and, in some cases, whether authorisation from the Court of Protection is required.
Other statutory powers may also be engaged. For example, approved mental health professionals can enter premises under the Mental Health Act, the police may exercise powers where there is a risk to life or limb, and access can ultimately be authorised by the courts.
Regulation 13 and CQC expectations
Regulation 13 places clear safeguarding obligations on registered providers. Providers must have robust systems and processes in place to prevent abuse by staff or others, including visitors.
Abuse is defined broadly and includes degrading treatment, inappropriate restraint, and the misuse of physical, chemical or mechanical restrictions. Where safeguarding concerns arise, providers must take appropriate action without delay, including investigation and referral to external bodies where necessary.
Failure to comply can have serious consequences. The Care Quality Commission (CQC) may take enforcement action or prosecute where breaches expose individuals to significant risk of harm or result in avoidable harm. In the most serious cases, criminal liability may arise under the Criminal Justice and Courts Act 2015 for wilful or reckless neglect.
How Hempsons can help
Adult safeguarding issues often sit at the intersection of regulatory compliance, public law duties and operational risk. We advise providers, commissioners and professionals on all aspects of adult safeguarding, including:
- Responding to section 42 safeguarding enquiries
- Advising on Regulation 13 compliance and CQC enforcement
- Mental Capacity Act and Court of Protection matters
- Safeguarding governance, policies and training
- Supporting organisations following serious incidents or reviews
Contact us
Our specialist health and social care lawyers understand both the legal framework and the practical realities of delivering care. Please get in touch if you would like advice or support on adult safeguarding.