Government claims that existing legal powers are sufficient to protect vulnerable adults imprisoned by abusers in their own homes have been rejected by a leading social care lawyer.
The argument from Alex Ruck Keene, barrister at 39 Essex Street Chambers, comes as part of a last-ditch attempt by campaigners to amend the Care Bill to provide social workers with a power to enter homes to investigate suspected abuse of a vulnerable adult where a third-party is preventing access.
Under an amendment proposed by ex-care minister Paul Burstow, such a power would only be available with the approval of a Court of Protection-authorised circuit judge. The judge would need to be satisfied that all reasonable options for gaining access to the vulnerable adult had been exhausted, that the investigating social worker had reasonable cause to suspect that the person was experiencing or at risk of abuse and was also unable to make decisions freely, and that exercising the power would not increase the risks to the person.
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The government’s repeated rejection of such a power through the passage of the bill has centred on the contention that social workers and the police already have sufficient powers to protect people in these circumstances, but lack adequate knowledge of the law. Care minister Norman Lamb has also warned that providing the additional power could undermine social workers’ ability to build relationships with families and negotiate solutions to problems.
But with MPs due to have their last opportunity to amend the Care Bill in a forthcoming two-day debate, Action on Elder Abuse chief executive Gary FitzGerald has produced a briefing with Ruck Keene, who specialises in Court of Protection work, challenging the government’s arguments.
In it they say that existing laws are insufficient to tackle cases where social workers suspect, but lack firm evidence, that a person is being abused, the person has mental capacity to make relevant decisions and a third party is barring access.
Currently, the police have powers, under the Police and Criminal Evidence Act 1984, to enter homes to arrest a person for an indictable offence or for the purposes of “saving life or limb”. In their briefing, FitzGerald and Ruck Keene argue that in the circumstances under question, there would not be sufficient evidence that an offence had been committed and that the “life or limb” justification sets too high a threshold for entry.
In cases where there was evidence that the person lacked capacity to make relevant decisions, social workers could apply to the Court of Protection for an order to gain access to them to conduct a capacity assessment. But in the cases being considered, there would likely be insufficient evidence that the person lacked capacity, said the briefing.
It also considered whether councils could apply to the High Court to make an order under its “inherent jurisdiction” to protect vulnerable adults in cases where statutory powers did not apply. However, the briefing warned that case law did not make it clear what orders the High Court could make in these circumstances. It also warned that the opportunity to bring a case under inherent jurisdiction was more limited than would be the case under Burstow’s amendment because the pool of High Court judges was smaller than the number of Court of Protection-authorised circuit judges.
“While there is no doubt that there are circumstances in which existing powers of entry are appropriate and applicable, this is not the case where concerns are expressed about the potential abuse or neglect of an adult who may be in a vulnerable situation, but where there is insufficient evidence to be satisfied that a crime has, or is about to be, committed,” said Ruck Keene and FitzGerald.
Domestic violence changes
However, the briefing suggests that the gap in the law will be partly filled by the introduction, in March 2014, of domestic violence protection notices and orders (DVPNs/DVPOs), under the Crime and Security Act 2010. These would allow a police superintendent to issue a notice to an alleged perpetrator preventing them from molesting their victim or entering their home, and do not require the victim’s consent.
The notice would trigger a magistrates’ court hearing within 48 hours for application for a domestic violence protection order, providing judicial backing for the prohibitions placed on the alleged perpetrator for 14 to 28 days.
However, Ruck Keene and FitzGerald said: “Whilst the DVPN/DVPO framework will add another tool that can be deployed, it would not cover all the situations in which the issue posed at the outset of this briefing note would arise – in particular, it would not cover the not uncommon position where the third party in question is, for instance, a lodger.”