The Department of Health is looking at whether changes are required to the No Secrets statutory guidance on protecting vulnerable adults in England from abuse. Regardless of the results of that review, agencies involved in adult protection need to respond now to recent landmark court decisions about the protection of vulnerable adults.
Prosecuting suspected abuse
The criminal law is useless if it is not enforced. In R(B) v the DPP (2009), the High Court criticised the Crown Prosecution Service for abandoning a prosecution because of a victim’s mental ill health.
The victim, B, had part of his ear bitten off in an attack. B said he knew his attacker and would give evidence against him. The CPS, however, was concerned that he would not make a good witness because of his history of psychosis. This led to the prosecution being abandoned.
B successfully challenged the CPS’s decision before the High Court. As well as being a “humiliation”, the decision not to prosecute amounted to a violation of B’s rights under Article 3 of the European Convention on Human Rights. Article 3 prohibits inhuman or degrading treatment and includes an obligation on state authorities to protect citizens from serious assaults.
B was awarded £8,000.
Duty of care to protect vulnerable adults
X & Y v Hounslow (2008) was a ground-breaking case. The High Court held that a council owed a common law “duty of care” to protect two adults with learning disabilities whom they knew to be at risk of serious physical harm from a gang.
The relevance of a common law duty of care is that, if it is breached through negligence, damages for losses flowing from the breach may be claimed. Here, the duty was breached because the council failed to move the adults away from the serious harm that the council knew they faced. As a result, the adults were imprisoned by local youths for a weekend and suffered gross abuse.
Damages of about £100,000 were agreed.
Duty of care owed by care standards authorities
The Law Lords’ decision in Jain v Trent HA (2009) was actually a claim for compensation in negligence brought by a care home provider against a care standards registration authority. Although that claim was rejected, the Law Lords did suggest that the registration authority might instead owe a “duty of care” towards the residents of care homes. This suggestion is likely to be probed in further litigation. As a result, we can expect compensation claims where it is alleged that a care standards registration authority, such as the Care Quality Commission, negligently failed to act against a suspect care provider.
Adult protection case conferences
R(G) v Brighton & Hove CC (2008) came from a different angle to the above cases because it looked at the rights of suspected abusers, in this case another vulnerable adult who attended college with the alleged victim. An adult protection case conference decided that the allegations were substantiated. The suspect argued that the conference had been conducted unfairly because he had not been allowed to attend it. The High Court said the general rules of fairness applied to such conferences but that, on the facts, those rules had not been breached. The suspect knew in advance what the allegations were and the conference had no direct effect on him because its focus was on protecting and meeting the needs of the victim.
This column is published in the 26 February issue of Community Care magazine under the heading Adult protection rulings foreshadow No Secrets review
Ed Mitchell is a solicitor and editor of Social Care Law Today