Social workers could gain the power to enter homes where they suspect an adult with care needs is being abused but professionals cannot gain access because of a third party.
The government launched a consultation on the proposal today, alongside its White Paper and draft bill to reform the social care system, which would put adult safeguarding on a statutory footing and mandate councils to investigate cases where they suspect abuse or neglect of an adult with care and support needs.
The suggested power is designed to take account of situations of suspected abuse or neglect where an adult has the capacity to make relevant decisions but is being placed under undue pressure or coercion by a third party who is preventing social workers from gaining access to the adult at risk’s property. Councils would need to secure a warrant to enter the property and speak to the adult at risk alone.
“We are not looking to over-ride the choices of people with capacity who make decisions professionals may disagree with – this is about circumstances where the ability to make a choice is believed to be restricted by the behaviour of another person,” said the consultation document. It said it would help people “who are unable or unwilling to ask for help to have their voices heard”.
The draft bill would remove an existing power – under section 47 of the National Assistance Act 1948 – for councils to remove an ill or disabled person from a property if they are not receiving proper care and attention – on grounds of its incompatibility with a human rights-based approach.
The Department of Health said it wanted to know whether this may leave a gap in protection through the consultation. 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 DH said it was not satisfactory for councils to have to resort to the courts on a case-by-case basis as it would be “expensive for local authorities and is likely to be extremely disempowering for individuals”. The DH made clear that any new power would have to be compatible with the right to respect for private and family life (Article 8) under the European Convention on Human Rights, which entails that a power of entry would have to be proportionate way of achieving a legitimate aim – “to enable the person in question to express his or her wishes without undue pressure or coercion”.
The consultation was welcomed by Action on Elder Abuse, which launched its own consultation on establishing new powers of entry and intervention to stop abuse last month, in the belief that the issue had been neglected by government.
“We are pleased that they are consulting on powers of entry and we think that’s an area where powers are really needed,” said AEA chief executive Gary FitzGerald. He said he was disappointed that the government was not consulting on powers of intervention – such as the power to ban alleged perpetrators of abuse or remove alleged victims from a property – even though the charity was not convinced such powers were necessary. “It’s a complex area but one that needs to be addressed,” he said.
FitzGerald also called on respondents to the Action on Elder Abuse consultation to submit their responses to the DH.Mithran Samuel is Community Care’s adults’ editor.
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