Social workers blocked from combating abuse behind closed doors by lack of powers, suggests research

Story updated 10.15am 11 March 2014

Social workers are being prevented from tackling the abuse of vulnerable adults behind closed doors by a lack of powers, not their lack of knowledge, research with councils has suggested.

However, the government has resisted a final attempt to amend the Care Bill to include a new power of entry to enable social workers to take action in such cases.

Practitioners were denied access to vulnerable adults suspected of being abused 29 times in the past year because a third party was blocking access, found research conducted under the Freedom of Information Act with 84 of the 152 English councils.

On 21 of these occasions, access was never gained as a result and on none of the 29 occasions was the failure to gain access because of social workers’ failure to use existing powers to gain access to the person.

The findings from the research, conducted by Action on Elder Abuse (AEA), follow a vigorous debate through the passage of the Care Bill on whether social workers should gain a new power of entry, with judicial authority, to enter homes where abuse is suspected but entry is blocked.

Final stages of Care Bill

In a debate at the bill’s report stage in the House of Commons yesterday, ex-care minister Paul Burstow made a final attempt to amend the legislation to include a power of entry. But he was forced to withdraw the amendment after the government made clear it would not support it.

Paul Burstow (Photo credit: Gary Brigden)

As before, the government rejected Burstow’s amendment on the grounds that existing powers are sufficient to enable social workers to gain access where a third party is blocking access to the vulnerable adult, but that practitioners lack the legal literacy to make full use of them. Care minister Norman Lamb has promised practitioners guidance on how to use existing powers and he said yesterday these would be drafted by the end of this month.

Action on Elder Abuse’s research was designed to support of Burstow’s amendment and challenge the government’s case that existing powers were sufficient. Of the 84 councils to respond to its Freedom of Information request, 28 could not access the data within the time limit and 12 did not hold the data. Of the remaining 44, 32 did not experience a failure to gain entry in the last 12 months, while the remaining 12 experienced 29 failures to do so.

Safeguarding practitioners back new power

A separate survey with 365 members of AEA’s practitioners network – including safeguarding specialists from local authorities and the NHS – found 82.2% indicated support for Burstow’s amendment. Just over half (55.3%) said they did not think failures to gain access currently were due to a lack of knowledge of the current law, though 44.7% suggested this might be the case.

“The conclusions indicate a strong view by those with the front line experience of adult safeguarding that the law needs strengthening,” said AEA. “While there may be a need to improve understanding of the law, this is not what is preventing access to adults in such vulnerable situations.”

Last month, AEA published a legal opinion from Alex Ruck Keene, a barrister specialising in the Mental Capacity Act 2005, rejecting the case that existing powers were sufficient to enable social workers to access adults at risk in such circumstances. It has also sent a letter to the prime minister backing Burstow’s amendment, signed by over 500 people or organisations, including The Law Society, The College of Social Work and the British Association of Social Workers.

Warning over risk-averse practice

Burstow’s proposed power would have carried a number of safeguards to prevent its misuse and guard against adverse consequences:

• its use would have to be authorised by a Court of Protection circuit judge;
• the applying social worker would have to have reasonable cause to suspect the person was at risk of or experiencing abuse or neglect and unable to make decisions freely;
• the judge would have to be satisfied that all reasonable and practicable steps had been taken to access the person before application to use the power, that use of the power is necessary to pursue a safeguarding enquiry and that exercising the power would not result in the person being put at increased risk;
• the power could only be exercised once and the social worker would need to be accompanied by a police officer.
• However, Lamb cited the views of the Association of Chief Police Officers, the Association of Directors of Adult Social Services and chief social worker for adults Lyn Romeo in arguing that a new power would be unnecessary and counterproductive.
• He quoted Romeo as saying: “An additional power of entry or access on its own would be insufficient, and indeed could make the situation worse.”
• Lamb invited Burstow to participate in drafting the guidelines for practitioners, which the Social Care Institute for Excellence is expected to lead on.

Existing powers of entry

Existing powers of entry include:-

• for the police to gain entry to premises to protect life or limb or to arrest someone for an indictable offence, under section 17 of the Police and Criminal Evidence Act 1984;
• for approved mental health professionals to apply to a magistrate for authority to enter a home, with the police, where it is suspected that a person with a mental disorder is being abused or neglected or is unable to take care of themselves, under section 135 of the Mental Health Act 1983;
• for councils to apply to the Court of Protection for an order to assess a person who they suspect is at risk but lacks mental capacity to take decisions to protect themselves;
• for councils to apply to the High Court to use its inherent jurisdiction to issue enabling them to protect vulnerable adults at risk, where statutory powers do not apply;

Also, the government is due to implement shortly new powers under the Crime and Security Act 2010, allowing a police superintendent to issue a domestic violence protection notice to an alleged perpetrator preventing them from molesting their victim or entering their home for 48 hours. This would trigger a magistrates’ hearing, enabling the police to apply for a domestic violence protection order, extending the prohibitions up to 28 days.