|Social workers’ views on powers of entry
Cases where it would have been useful
“An adult male with moderate learning disabilities was allegedly being abused by family in his home. Family would not let me see him on his own, claiming he was afraid of social workers, when actually he was afraid of them. It became very hostile and the family made threats towards me.”
“We had concerns that the daughter was abusing the mother. The daughter wouldn’t let us come to the home (tenancy was in her name only). We couldn’t contact the mother as she spoke no english and there was no house phone.”
Where power should apply
“When no agency can get access to an adult to see them on their own where there are reasonable grounds to believe the person maybe being abused; to assess mental capacity, to assess risk and level of coercion, to assess community care needs and to give advice and information.”
Source: College of Social Work survey, 2012
Adult social workers overwhelmingly support having powers to enter homes where they suspect abuse but cannot gain access to victims because of a third party.
That was the message from a survey of over 300 adult social workers by The College of Social Workers, which found 84% support for powers of entry, in response to a government consultation on the issue that ends today.
Concerns over defensive practice
However, the British Association of Social Workers has found members split on the issue, with some voicing concerns that such a power could be misused and lead to defensive and risk-averse practice.
The suggested power would be added to the draft Care and Support Bill and would support the proposed duty on councils to investigate cases of suspected abuse or neglect of adults with care and support needs who are unable to protect themselves.
It would cover circumstances where social workers suspected that a vulnerable adult was at risk of abuse or neglect but were unable to assess them because a third party – typically a family member – was preventing entry.
The current law
Currently agencies would not be able to gain entry unless there was immediate risk to life or limb, the person had a mental disorder or there were reasonable grounds for believing a crime had been committed; the government plans to abolish powers to enter an insanitary property to remove an ill or disabled person if they are not receiving proper care and attention.
More than half the social workers polled by the College said they would have used such the power of entry suggested by government in the past three years had it been available: 46% said they would have used the power up to five times and 8% said they would have used it more than five times.
Respondents said the power would have been useful in cases they had encountered where a vulnerable adult was living with a family member who was denying professionals access to the property, or in suspected forced marriage cases. They said it should be used to gain access to the adult so they can speak to them in private or conduct an assessment.
Social workers should exercise power
Off the back of the survey, the College voiced support for the power – so long as it was exercised by an “appropriately trained and qualified social worker” with a warrant from the courts.
The Practitioners Alliance for Safeguarding Adults (PASA) UK also backed a new power, but said this should be a power of access to the vulnerable adults, not just of entry to premises. This was so social workers or other professionals could see the person on their own and carry out assessments of capacity, risk or need.
“You may have to see them over a period of time so it can’t just be a one-off; and you may have to see them outside the home,” said chair of trustees Pete Morgan.
PASA also said the power should apply to residential settings as well as private homes, granted by a magistrate through a warrant and available to whichever safeguarding agency was conducting the abuse enquiry in question, not just the local authority.
Morgan said he envisaged that the power would be used scarcely and would function as a deterrent to alleged perpetrators denying access to alleged victims.
However, BASW’s mental health reference group found that views were divided among members on whether the power would be a good idea. Group members expressed concerns that such a power could be misused as a “lazy” alternative to engaging with difficult families through “professional, competent practice”.
In a presentation to an Action on Elder Abuse conference on the draft bill this week, BASW reference group member Robert Nisbet said he doubted whether there was the “resource or the professional competence [within local authorities] to ensure that the power is not abused”.
Lessons from the deprivation of liberty safeguards
|Existing powers of entry
Section 135 of the Mental Health Act 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 they are being abused or neglecting themselves.
Section 17 of the Police and Criminal Evidence Act enables police officers to enter premises without a warrant to save “life or limb”.
Section 47 of the National Assistance Act enables councils, with the approval of a magistrate, to remove to “suitable premises” a person who is ill or disabled, living in insanitary conditions and not receiving proper care or attention, whether the person consents or not. The government plans to abolish this.
There are no powers of entry or removal provided for under the Mental Capacity Act 2005. However, the police could seek a warrant from a magistrate to enter premises if they suspect a carer is abusing or wilfully neglecting a person who lacks capacity, under section 44 of the Act.
He said the latest compulsory power granted local authority social services – to authorise the deprivation of a person’s liberty in a care home – had been misused in a number of cases, such as that of Steven Neary, an autistic man whose deprivation was wrongly authorised by Hillingdon Council.
Nisbet said cuts to adult social services, particularly to social worker posts, could make it more likely that councils would resort to such a power instead of engaging positively with families.
“Introducing this power would take us further down the slippery slope of social work being about control not empowerment,” warned Nisbet.
However, other members of the BASW reference group backed the power for similar reasons to those raised by College members. The group as a whole said that, were such a power implemented, it should be granted by a magistrate who would need to be satisfied that all reasonable steps have been made to resolve the situation and the power was not being used “in lieu of commitment to professional interventions”.
The government has not taken a view over whether the power is necessary. “It’s a very difficult and nuanced debate; the government genuinely doesn’t have a position on this,” said Simon Medcalf, the Department of Health official responsible for the draft Care and Support Bill, at the same Action on Elder Abuse conference. “We approach this as a very open question and we want people to give us their views.”
Claire Crawley, senior policy manager for adult safeguarding at the DH, told the conference the consultation had been triggered by a Court of Appeal judgement in March – DL v A Local Authority and Others .
Key legal judgement
This upheld an injunction secured by a council to protect an older couple from their son, who was alleged to be abusing and controlling them.
Though the couple possessed capacity under the Mental Capacity Act 2005 to take legal action on their own behalf, and had not done so, the Court of Appeal found that their capacity to act had been impaired by the undue influence of their son.
In such cases, it ruled, the courts had an “inherent jurisdiction” to take action to protect vulnerable adults whose capacity was impaired by coercion. To make use of this councils would have to apply to the High Court.
Case numbers likely to be key
Crawley suggested the DH’s decision whether to introduce a statutory power of entry would rest on the number of cases that it would be likely to apply to.
“There clearly is jurisdiction but do we want local authorities to have to go to court every time? But [on the other hand] are there so few cases that it would make no difference?,” she told the Action on Elder Abuse conference.