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.
Government rejection
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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.
Police powers
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.”
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I fully support this briefing and endorse the content. I’ve been confronted on several occasions with situations where I and my staff have been denied access to a vulnerable adult, who was suspected of being abused by the very person barring access. Whilst these situations are thankfully quite uncommon, the introduction of such powers would undoubtedly provide social workers with a useful additional tool to ensure that vulnerable adults are safeguarded, under very clear and rightfully strict criteria overseen by a Court of Protection Judge. It still confounds logic that the government are refusing to learn the lessons of Scotland and Wales, who in the former have had these powers for many years (and rarely used them), and the latter who are embracing them in their developing ‘in Safe Hands’. I hope that even at this late stage in the Bill’s passage, that common sense will prevail and Paul Burstow will succeed with his amendment in full.
I know from my 40 years in Social Work there were times when we lacked powers to prevent abuse. When this was about children the government of the day moved to ensure powers were put in place. However with adults who may be just as vulnerable there is a strange reluctance to take similar actions. This isn’t about Social workers but the responsibility of the State via due legal process to take action in extreme cases to save a citizen from terrible abuse. The current law is not strong enough and practitioners know this. The coalition needs to be courageous and stand up to ill informed opposition to this vital amendment
My mom was in a residential setting in Ketton, Rutland. There has been safeguarding concerns over the last 6 months. On Sunday 16th February 2014 I was called by the night staff from the home at 20.50hrs to inform me that my mother had been found with bruising to her face. Upon my arrival I was devastated to see the vast injuries she had incurred. There was no observations, recordings or body chart and the night staff stated there was no handover. My mother ended up in hospital and had to endure tests to ensure sexual abuse had not taken place. This is so distressing but could be prevented. These care homes need cct installing as soon as possible to prevent others incurring injuries. Staff found to abuse should be imprisoned for a minimum of 10 years.I wish that Mr Burstow succeeds ensuring safeguarding of vulnerable adults.
Social workers do not prevent abuse. The child grooming cases, Pilkington family etc. as well as the huge number of institutional abuses highlight this very very frequently. The most intelligent realise this.
Barristers/ lawyers want to make a good living so they will support any law whether needed or not. Social workers need careers and those in adult social work have no defined role- so have focused on hope that safeguarding work will give them this. Sheer arrogance to get unfounded power.
This government must listen to the majority public and professionals who spoke out against giving added powers to social workers-who are not up to using properly the ones they already have..
Social workers do prevent neglect and
abuse on a daily basis
It seems to me that there are a few exceptional circumstances which occur each year when a right of access to a vulnerable person is crying out to take place but which, due to the attitude and approach of another person can not readily take place.
Scotland led the way several years ago by creating a statutory right of access subject to judicial oversight – that seems to have worked well and there have been very few appplications to the courts for excersise of the power, possibly because the threat of its use has been enough to ensure access to the vulnerable person has been granted.
The passage of the Care Bill is an ideal opportunity to learn from the Scots and adopt the approach to close this lacuna and thereby avoid some of the tragedies of the past.
Let us learn from others and adopt what works.
I support the proposed amendments.