Social workers in England may need powers to enter homes and intervene where they suspect a vulnerable adult is at risk of abuse and a third party is preventing entry, say leading social care organisations.
Action on Elder Abuse has launched a consultation on the issue to stimulate debate and establish whether such powers are needed, and has been backed by 10 other organisations, including the British Association of Social Workers, Mencap and Unison.
Existing powers in England may be inadequate for tackling cases where an adult with mental capacity, who does not have a mental disorder, is suspected of being abused in their own home by a family member who is preventing professionals from talking to the alleged victim, and coercing or unduly influencing the victim into staying quiet.
“Even if such situations are limited, the challenge for safeguarding remians as to how a situation can be assessed or judged if it is not possible to physically gain access to the alleged victim,” said the consultation paper.
Powers of intervention in Scotland have been used sparingly since their introduction four years ago, but have reportedly provided social workers with greater confidence to investigate abuse, knowing that they have such powers in reserve.
Today’s paper is designed to influence responses to the government’s forthcoming White Paper and draft care and support bill, which will set out plans to put adult safeguarding on a statutory footing but is expected not to propose powers of entry due to government opposition.
Action on Elder Abuse said there was a need for a consultation because the issue of powers of entry was neglected in the Law Commission’s review of adult social care law, which reported last year, and the 2008-9 consultation into reviewing the No Secrets guidance.
Among 29 questions, the consultation paper asks whether there should be powers of entry where a vulnerable adult is suspected of being at risk of abuse and subjected to coercion and undue influence, and a third party is refusing access; be powers to interview an adult in private having gained entry; and powers to ban alleged perpetrators or remove victims from premises. It also asks whether new powers should only be exercisable with a warrant from the courts.
To have your say, email email@example.com before Wednesday 11 July.
Public authorities have the following powers to intervene to protect adults at risk:-
- Section 135 of the Mental Health Act 1983, which enables a police officer, accompanied by an approved mental health professional and a doctor, to remove a person from their home to a place of safety for 72 hours, with a warrant from a magistrate, where there is reasonable cause to believe that someone with a mental disorder is being abused or is neglecting themselves.
- Section 17 of the Police and Criminal Evidence Act, which enables a police officer to enter premises without a warrant to save “life or limb”.
- Section 47 of the National Assistance Act, which provides powers to apply to a magistrate to remove to “suitable premises” a person who is ill or disabled, living in insanitory conditions and is not receiving proper care and attention, either from themselves or others.
- There are now powers of entry or removal under the Mental Capacity Act 2005. However, the police may be able to secure a warrant to enter premises if they suspect a carer may have abused or wilfully neglected a person who lacks capacity – an offence under section 44 of the Act.
The existing powers leave a gap where adults at risk have capacity to make all relevant decisions, are not mentally ill, are not facing immediate risks to life or limb and are not living in insanitary conditions.
A recent Court of Appeal judgement, DL v A Local Authority & Ors, made clear that councils could apply to the courts under common law to intervene to protect vulnerable adults with capacity who are unable to protect themselves and are subject to constraint, coercion or undue influence. However, the Action on Elder Abuse consultation paper warned that such applications were rare, made by “pioneering councils”, and were costly, uncertain and complex, raising the question of whether such a power should be on the statute books.
Under the Adult Support and Protection Act (Scotland) Act 2007, social workers have the following powers:-
- The right to enter any premises as part of an investigation into abuse of an older or disabled adult.
- The right to apply to a sheriff for an order to remove an older or disabled adult from premises for an assessment where it is supsected that they are at risk of being seriously harmed (assessment order).
- The right to apply to a sheriff for an order to remove an alleged victim of abuse from premises for seven days where it is suspected that they are at risk of being seriously harmed (removal order)
- The right to apply to a sheriff for an order to remove an alleged perpetrator of abuse from a specified place (banning order) under specified criteria.
- The sheriff should only grant any of the orders with the consent of the alleged victim except where they reasonably believe that the victim is being unduly pressurised to refuse consent and there are no steps that could be taken with their consent that could protect them.
In its 2011 report on reforming adult social care law, the Law Commission said it was a matter for government to consider whether to introduce new compulsory or emergency powers to tackle the abuse of adults at risk, such as powers of entry; the commission saw its remit as clarifying and streamlining the law on adult care.
It did recommend repealing section 47 of the National Assistance Act, on the grounds that the absence of a right of appeal made it incompatible with the European Convention on Human Rights. However, it did say that the government should consider whether alternative powers should be installed in its place.
In response to the review of No Secrets, powers to enter premises where it is suspected that a vulnerable adult is being abused was backed by 60% of respondents who answered the question. However, today’s consultation paper said that the No Secrets review did not adequately address whether such powers were needed.