A recent legal ruling concerning adult protection will have
implications for how adults' and children's services work together,
discovers Mark Hunter
(
Click here to compare with the ADASS view by Penny
Furness-Smith)
The label "vulnerable adult" conjures up two contrasting images.
On the one hand, people with learning disabilities, the elderly and
infirm can be extremely susceptible to physical, emotional or
financial abuse. But on the other hand they are also adults. They
have rights and responsibilities, can make their own decisions and
they should go to protect vulnerable adults within the community
without infringing their rights to autonomy. It is an issue that
was brought into sharp focus by several recent incidents including
the murder last year of
Steven Hoskin, a 38-year-old man with profound learning
disabilities who was first befriended and then tortured before
being forced to his death from a 100ft viaduct in St Austell.
Cornwall Council was severely criticised for its handling of the
Legal responsibility
According to the No Secrets guidance from The Department of
Health and the Home Office, and the Welsh Assembly Government's
In Safe Hands document, both issued in 2000, it is social
services departments that have the responsibility to lead adult
protection services. They are advised to do this by setting up
multi-agency committees to investigate and respond to allegations
of abuse. But, unlike in child protection, the guidance has no
legislative power local authorities are simply assessed on the
degree to which they comply.
There are a number of reasons why this may be about to change.
First, the
No Secrets guidance itself is undergoing a review that is
expected to conclude by the end of this year. Several
organisations, including Action on Elder Abuse and the Association
of Directors of Adult Social Services, have called for this review
to produce a legislative framework that would put adult protection
on an equal footing with child protection. Care services minister
Ivan Lewis has promised to consider legislation.
Second, the Law Commission recently announced a review of adult
social care law, which it says is "inadequate, often
incomprehensible and outdated". This review will cover adult
residential care, community care and support for carers. It may
introduce a statutory responsibility for local authorities to
provide adult protection.
Third, and perhaps most significantly, a precedent has been set
in the way the law is currently applied. In a recent High Court
ruling,
Hounslow Council was ordered to pay £97,000 to a vulnerable
family who had been abused by a gang of youths. Hounslow denies
liability and has been given permission to appeal. Mr Justice
Maddison ruled that the council owed a duty of care to the couple,
named in court as X and Y. Both X and Y have learning disabilities,
were known to social services, and were living with their two
children, aged eight and 11, in a council flat in Feltham.
In the summer of 2000 the couple befriended a group of youths
who then began taking advantage of them. Some moved into their
flat, which they used to take drugs, store stolen goods and have
sex.
Serious assault
In October the situation escalated when one of the youths
seriously assaulted X. In November, the couple were effectively
imprisoned in their own flat, repeatedly assaulted and abused,
often in the presence of their two children. Kitchen cleaner and
pepper were sprayed in X's eyes and he was forced to drink urine
and eat faeces. He was assaulted with a vibrator and slashed with a
knife 40 times. Y, the children and even the family dog were also
assaulted. The couple's lawyers argued that Hounslow's social
services and housing departments should have foreseen that the
family was in imminent physical danger and re-housed them.
The council argued that a failure to re-house the couple did not
amount to a breach of duty. It pointed out that no local authority
had ever previously been held to be under a duty of care to protect
vulnerable adults from abuse by third parties.
However, the judge ruled that the council should be treated as a
single entity rather than as two separate departments and that
these departments had a duty to communicate with each other.
Sarah Erwin-Jones, a partner at legal firm Browne Jacobson who
specialises in social services, explains: "To show a duty of care
you have to show proximity - that the two parties had a close
enough relationship foreseeability - that the events could have
reasonably been predicted and that it is just and reasonable to
impose a duty of care."
It is therefore significant that the judge has ruled that the
"acts and omissions" of separate local authority departments should
be treated as one, says Erwin-Jones.
"It makes local authorities accountable for ensuring that their
internal relationships and communications are effective," she
says.
No buck passing
This case has serious implications for local authorities'
multi-disciplinary teams and could affect all those working with
vulnerable children as well as adults, she adds.
There is a statutory requirement for all agencies working with
children to share information particularly with children at risk,
so the implications for children's services is a little less. But,
the outcome of the ruling means that "professionals working with
parents need to make sure that they pick up with those
professionals working with children, because if there's going to be
a duty of care imposed on local authorities it will be for the
whole family and not just individual members", she adds.
Deborah Kitson, director of the Ann Craft Trust which works to
protect people with learning disabilities from abuse, also
emphasises the importance of imposing a duty of care right across
the council rather than specifically within social services.
Such a duty would mean "passing the buck between departments
won't get people off the hook", she says. "It's a clear message
that safeguarding is the business of every part of local
authorities and that people must share information. It's a message
we've heard so often, but people must heed it."
According to Richard Curen, director of Respond which supports
people with learning disabilities affected by abuse, the Hounslow
case highlights the importance of putting adult protection on the
same legal footing as child protection.
"Safeguarding vulnerable adults seems to be in the situation now
that we were in 30 years ago with safeguarding children," he says.
"Awareness of safeguarding vulnerable adults issues is too low and
people sometimes don't think about the implications of their acts
and omissions. This case shows what happens if councils don't
engage with adult safeguarding. Let's hope the review of No Secrets
can push forward progress."
Duty of care
David Congdon, director of public affairs at Mencap, believes
the Hounslow ruling could mark a watershed for the way that local
authorities view adult protection.
"I'm disappointed that the council has decided to appeal," he
says. "Because I think this judgement is good news. It's very
carefully argued and I expect local authorities' legal teams will
be examining it thoroughly.
"The most important thing is that the judge has taken the view
that the council is a single corporate body and that the duty of
care does not lie just with a specific department but across the
council as a whole. So, once again it stresses the importance of
continuity between different departments. I think it's also
important that the judgement is nothing to do with eligibility
criteria."
While Congdon would also like to see a stronger legal basis for
adult protection, he does acknowledge that there are differences
between adult and child protection.
"With adults there is always going to be the issue about how
'vulnerable' you are," he says. "We would always support the right
of someone with learning difficulties to have autonomy and to lead
an independent life. But that doesn't mean they should just be left
to their own devices. Unfortunately, because so many local
authorities are so strapped for cash that's what can happen."
He says that there is little evidence about how much of this
abuse goes on because only the worst cases come to light. People
with learning disabilities, he explains, are vulnerable to being
befriended by people who will go on to abuse them.
Stronger legal powers
According to Kathryn
Stone, chief executive of
Voice UK, which
supports people with learning disabilities who have experienced
crime or abuse, it is this vulnerability that makes it so
important that adult protection is given stronger legal
powers.
"The crimes committed against this family are an affront to a
civilised society," she says. "We must accept that there are
parasites in society who will prey on the vulnerable. We must be
alert to the possibility of these crimes becoming more frequent and
act now to prevent them."
It is likely that those calling for stronger legal powers to
protect vulnerable adults will get their wish. Whether it is
through the No Secrets review, the Law Commission review or the
precedent set by the Hounslow case, adult protection looks set to
find itself on a much stronger legal footing.
Published in the 7 August issue of Community Care under
the headline Protection at a Price