Safeguarding: should councils have a duty of care to vulnerable adults?

A recent legal ruling concerning adult protection will have implications for how adults’ and children’s services work together, discovers Mark Hunter

(Click here to compare with the ADASS view by Penny Furness-Smith)

The label “vulnerable adult” conjures up two contrasting images. On the one hand, people with learning disabilities, the elderly and infirm can be extremely susceptible to physical, emotional or financial abuse. But on the other hand they are also adults. They have rights and responsibilities, can make their own decisions and lead independent lives.

Local authorities have the difficult task of balancing how far they should go to protect vulnerable adults within the community without infringing their rights to autonomy. It is an issue that was brought into sharp focus by several recent incidents including the murder last year of Steven Hoskin, a 38-year-old man with profound learning disabilities who was first befriended and then tortured before being forced to his death from a 100ft viaduct in St Austell. Cornwall Council was severely criticised for its handling of the case.

Legal responsibility

According to the No Secrets guidance from The Department of Health and the Home Office, and the Welsh Assembly Government’s In Safe Hands document, both issued in 2000, it is social services departments that have the responsibility to lead adult protection services. They are advised to do this by setting up multi-agency committees to investigate and respond to allegations of abuse. But, unlike in child protection, the guidance has no legislative power local authorities are simply assessed on the degree to which they comply.

There are a number of reasons why this may be about to change. First, the No Secrets guidance itself is undergoing a review that is expected to conclude by the end of this year. Several organisations, including Action on Elder Abuse and the Association of Directors of Adult Social Services, have called for this review to produce a legislative framework that would put adult protection on an equal footing with child protection. Care services minister Ivan Lewis has promised to consider legislation.

Second, the Law Commission recently announced a review of adult social care law, which it says is “inadequate, often incomprehensible and outdated”. This review will cover adult residential care, community care and support for carers. It may introduce a statutory responsibility for local authorities to provide adult protection.

Third, and perhaps most significantly, a precedent has been set in the way the law is currently applied. In a recent High Court ruling, Hounslow Council was ordered to pay £97,000 to a vulnerable family who had been abused by a gang of youths. Hounslow denies liability and has been given permission to appeal. Mr Justice Maddison ruled that the council owed a duty of care to the couple, named in court as X and Y. Both X and Y have learning disabilities, were known to social services, and were living with their two children, aged eight and 11, in a council flat in Feltham.

In the summer of 2000 the couple befriended a group of youths who then began taking advantage of them. Some moved into their flat, which they used to take drugs, store stolen goods and have sex.

Serious assault

In October the situation escalated when one of the youths seriously assaulted X. In November, the couple were effectively imprisoned in their own flat, repeatedly assaulted and abused, often in the presence of their two children. Kitchen cleaner and pepper were sprayed in X’s eyes and he was forced to drink urine and eat faeces. He was assaulted with a vibrator and slashed with a knife 40 times. Y, the children and even the family dog were also assaulted. The couple’s lawyers argued that Hounslow’s social services and housing departments should have foreseen that the family was in imminent physical danger and re-housed them.

The council argued that a failure to re-house the couple did not amount to a breach of duty. It pointed out that no local authority had ever previously been held to be under a duty of care to protect vulnerable adults from abuse by third parties.

However, the judge ruled that the council should be treated as a single entity rather than as two separate departments and that these departments had a duty to communicate with each other.

Sarah Erwin-Jones, a partner at legal firm Browne Jacobson who specialises in social services, explains: “To show a duty of care you have to show proximity – that the two parties had a close enough relationship foreseeability – that the events could have reasonably been predicted and that it is just and reasonable to impose a duty of care.”

It is therefore significant that the judge has ruled that the “acts and omissions” of separate local authority departments should be treated as one, says Erwin-Jones.

“It makes local authorities accountable for ensuring that their internal relationships and communications are effective,” she says.

No buck passing

This case has serious implications for local authorities’ multi-disciplinary teams and could affect all those working with vulnerable children as well as adults, she adds.

There is a statutory requirement for all agencies working with children to share information particularly with children at risk, so the implications for children’s services is a little less. But, the outcome of the ruling means that “professionals working with parents need to make sure that they pick up with those professionals working with children, because if there’s going to be a duty of care imposed on local authorities it will be for the whole family and not just individual members”, she adds.

Deborah Kitson, director of the Ann Craft Trust which works to protect people with learning disabilities from abuse, also emphasises the importance of imposing a duty of care right across the council rather than specifically within social services.

Such a duty would mean “passing the buck between departments won’t get people off the hook”, she says. “It’s a clear message that safeguarding is the business of every part of local authorities and that people must share information. It’s a message we’ve heard so often, but people must heed it.”

According to Richard Curen, director of Respond which supports people with learning disabilities affected by abuse, the Hounslow case highlights the importance of putting adult protection on the same legal footing as child protection.

“Safeguarding vulnerable adults seems to be in the situation now that we were in 30 years ago with safeguarding children,” he says. “Awareness of safeguarding vulnerable adults issues is too low and people sometimes don’t think about the implications of their acts and omissions. This case shows what happens if councils don’t engage with adult safeguarding. Let’s hope the review of No Secrets can push forward progress.”

Duty of care

David Congdon, director of public affairs at Mencap, believes the Hounslow ruling could mark a watershed for the way that local authorities view adult protection.

“I’m disappointed that the council has decided to appeal,” he says. “Because I think this judgement is good news. It’s very carefully argued and I expect local authorities’ legal teams will be examining it thoroughly.

“The most important thing is that the judge has taken the view that the council is a single corporate body and that the duty of care does not lie just with a specific department but across the council as a whole. So, once again it stresses the importance of continuity between different departments. I think it’s also important that the judgement is nothing to do with eligibility criteria.”

While Congdon would also like to see a stronger legal basis for adult protection, he does acknowledge that there are differences between adult and child protection.

“With adults there is always going to be the issue about how ‘vulnerable’ you are,” he says. “We would always support the right of someone with learning difficulties to have autonomy and to lead an independent life. But that doesn’t mean they should just be left to their own devices. Unfortunately, because so many local authorities are so strapped for cash that’s what can happen.”

He says that there is little evidence about how much of this abuse goes on because only the worst cases come to light. People with learning disabilities, he explains, are vulnerable to being befriended by people who will go on to abuse them.

Stronger legal powers

According to Kathryn Stone, chief executive of Voice UK, which supports people with learning disabilities who have experienced crime or abuse, it is this vulnerability that makes it so important that adult protection is given stronger legal powers.

“The crimes committed against this family are an affront to a civilised society,” she says. “We must accept that there are parasites in society who will prey on the vulnerable. We must be alert to the possibility of these crimes becoming more frequent and act now to prevent them.”

It is likely that those calling for stronger legal powers to protect vulnerable adults will get their wish. Whether it is through the No Secrets review, the Law Commission review or the precedent set by the Hounslow case, adult protection looks set to find itself on a much stronger legal footing.

Published in the 7 August issue of Community Care under the headline Protection at a Price

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