Safeguarding Adults Week 2025: Reflecting on Rights and Risk

It’s Safeguarding Adults Week, which gives organisations like BIHR an opportunity to raise awareness of important safeguarding issues. It’s also a time to reflect on how safeguarding - defined in the Care Act statutory guidance as ‘protecting an adult’s right to live in safety, free from abuse and neglect’ - must be underpinned by our Human Rights Act (HRA) at all times.

A significant part of BIHR’s day-to-day involves providing training and support on the HRA to practitioners working across a range of health and social care services. When it comes to safeguarding, one of the most common dilemmas we hear in our workshops is: how do we balance rights against risks? Rights and risks are sometimes pitted against each other, suggesting that only one of them can prevail.

However, this is far from the case. Let’s go back a few years to understand the foundations on which our current safeguarding system was built…

The HRA was passed by UK Parliament in 1998, bringing the rights and freedoms afforded to us through the European Convention on Human Rights into our domestic law. This led directly to government guidance called ‘No Secrets’ which was issued to statutory agencies and partners to close ‘a significant gap’ in human rights protections, aiming to ‘protect vulnerable adults from abuse’. In 2014, ‘No Secrets’ was replaced by the Care Act in England, which introduced new safeguarding duties on local authorities. In its statutory guidance, we are reminded that safeguarding is a care and support function, and therefore a public function. This means all safeguarding policy- and decision-making must be carried out in a way that respects, protects, and fulfils human rights at all times. It can be easily forgotten, but safeguarding is firmly rooted in our HRA.

Returning to the question of rights and risk, let’s dig into some of the HRA legal duties and rights that can help to equip practitioners with the tools to navigate often complex safeguarding scenarios.

Out of the three HRA legal duties, the first one that springs immediately to mind when thinking about safeguarding is the protect duty. This is a positive duty on public authorities to step in and take action when they identify that someone’s human rights may be at stake. They can also be held accountable for failing to recognise this - the HRA duties are not just about what is known, but what it’s reasonable to assume should be known and responded to. 

A key right in this area is the right to be free from inhuman and degrading treatment (Article 3 HRA), which protects people from serious mental or physical harm or humiliation. It’s an absolute right, which means it can never be interfered with, people cannot be treated this way, under any circumstances. If it is interfered with, people can bring a legal case and seek justice in the courts. This right was successfully raised in a human rights claim by a mother and her son who was subjected to abuse at a care home for 17 months, with the commissioners of his care admitting to having breached the Human Rights Act and issuing a formal apology, as well as financial damages.

The fulfil duty also comes to mind when thinking about how we learn from state failures to support human rights in cases of abuse or neglect. The Care Act requires that Safeguarding Adults Reviews (SARs) take place if an adult dies as a result of abuse or neglect (underpinned by the right to life (Article 2 HRA), another absolute right), or if they have experienced serious abuse or neglect. The purpose of this is to ‘promote effective learning and improvement action to prevent future deaths or serious harm occurring again’.

However, an often-overlooked duty when it comes to safeguarding is the respect duty, which asks public authorities to refrain from interfering with people’s human rights as much as possible. In situations where someone may be at risk of abuse or neglect, practitioners can find themselves having to decide whether or not to intervene, to respect or to protect. In some cases, intervening may infringe on that person’s freedom to make choices about how they live their life. Our autonomy is protected by Article 8 of the HRA, which says our private life should be respected. This is a non-absolute right, meaning it can only be restricted if it’s lawful, for a legitimate reason, and proportionate. Interference with this right may sometimes be permitted by a legal framework, and protection from abuse or neglect may be considered a legitimate aim, and so we’re left to determine what would be a proportionate response.

In our workshops, when practitioners bring up the dilemmas they encounter in safeguarding practice, we reach the conclusion that it’s not a question of rights versus risk. It’s about having the confidence to recognise which rights might be engaged where there is a risk of abuse or neglect, how those rights work together, and if a balance is needed, focusing on proportionality.

Proportionality means involving the person in the safeguarding process and understanding what ‘safe’ means to them.

Proportionality means actively exploring alternatives to find out the least restrictive way forward.

Proportionality means having a broad understanding of ‘risk’ – the risk of abuse or neglect, as well as the risks resulting from state interference in a person’s private life. 

Proportionality also means shifting the emphasis of safeguarding practice away from one of restriction, to one of rights maximisation.

We’ll leave you with a quote from a human rights legal case which dealt with this exact question – what is a proportionate response when it comes to the balance of autonomy and protection from abuse?

“Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable?”

Local Authority X v MM & Anor (No. 1) [2007] EWHC 2003 (Fam), Bailli, 21 August 2007