Social workers have been provided with advice on legal powers they can use to overcome barriers to accessing adults who may be facing abuse or neglect.
The Social Care Institute for Excellence publication is designed to help councils carry out their Care Act 2014 duty to make enquiries where they reasonably suspect a vulnerable adult is at risk of abuse or neglect in cases were they cannot access the person to determine this.
This would usually be because a third party – often a family member – was blocking access or preventing the adult at perceived risk from being seen alone with a practitioner.
The Scie publication was promised in January by care minister Norman Lamb during the passage of the Care Act 2014 as he rejected calls to bring in a new power of entry to deal with cases where a third party was blocking access to a vulnerable adult at perceived risk.
Lamb’s argument was that existing powers were sufficient to protect adults and that social workers and other professionals needed to improve their knowledge of these. In rejecting a new power, Lamb also warned that this could undermine social workers’ ability to build relationships with families in these circumstances.
Reflecting this, the Scie guidance – which is purely advisory – stresses that such powers should only be explored when practitioners have tried and failed to access the adult using persuasion or negotiation, believe the third party’s refusal to grant access is unreasonable and the circumstances justify intervention. It also points to section 1(3)(h) of the Care Act 2014, which states that, in the exercise of its adult social care functions, a council must have regard to the need to ensure that any restriction on a person’s freedom must be “kept to the minimum necessary for achieving the purpose for which the function is being exercised”.
It then goes on to set out the existing powers, their limits and the contexts in which they could be used. In doing so, it mirrors an analysis of the current law published in February by Action on Elder Abuse, and carried out by leading Court of Protection barrister Alex Ruck Keene. However, contrary to the government, Ruck Keene’s analysis concluded that existing powers were insufficient to deal with situations where the alleged victim does not have a mental disorder and has mental capacity to take relevant decisions.
POWERS OF ENTRY AND THEIR LIMITS
Personal welfare orders under the Mental Capacity Act 2005
What is the power: Under section 16 (2) of the MCA, the Court of Protection can make an order, making decisions on behalf of a person who lacks the capacity to make them, including deciding where they should live or restricting contact with specified people. The court can attach a penal notice to the order, warning that failure to comply could result in imprisonment or a fine.
With the permission of the Court, the council can apply to it to facilitate access to an adult who lacks capacity, or where there is a reason to believe they lack capacity, to make decisions about their safety, and access is impeded.
What are the limits on this power: The Court of Protection can only make an order under section 16 if it is established that the person lacks capacity to take the relevant decisions, which may be impossible to establish in these cases. Under section 48 of the MCA, the Court can make an interim order or declaration if there is reason to believe that the person lacks capacity and is in their best interests to make an order without delay. However, this would be of no use where the person does have capacity.
The inherent jurisdiction of the High Court
What is the power: Under inherent jurisdiction, the High Court has the power to hear any case which comes before it unless a statute or rule has limited this power or granted jurisdiction to another court, as is the case with the MCA and Court of Protection. In the case of DL v A Local Authority & Others [2012], the Court of Appeal held that the High Court could make orders to protect vulnerable adults who had capacity under the MCA, but whose ability to make decisions had been undermined through their being under constraint, subject to coercion or undue influence, or otherwise prevented from making a free choice or giving real or genuine consent. This means councils can apply to the High Court for an order to grant access to a vulnerable adult where this is barred.
What are the limits on this power: Ruck Keene warns that this can “often be a time consuming, slow and costly option”, that has been rarely used. He also notes that the courts have been vague about the scope of any orders that could be made under inherent jurisdiction to protect vulnerable adults, and that there is no reported judgement where such orders have been sought by a council and then contested by the third party and therefore subject to scrutiny.
The Mental Health Act 1983
What are the powers: Under section 115 of the MHA, an approved mental health professional may enter and inspect any premises in which a mentally disordered person is living, if they believe the person is not receiving proper care. If asked, the AMHP must produce authenticated identification of their status. Under section 135, a magistrate may issue a warrant to a police constable to enter premises, using force if necessary, on the basis of evidence under oath from an AMHP that there is reasonable cause to suspect a person with a mental disorder is being ill-treated or neglected. The person can then be removed to a place of safety for a mental health assessment for up to 72 hours.
What are the limits on these powers: The Scie guidance makes clear that the section 115 power does not allow for forced entry, though refusal of entry could constitute an offence under section 129 of the act. Neither power applies to people who do not have a mental disorder, as defined by section 1 of the MHA.
The Police and Criminal Evidence Act 1983
What are the powers: Under Pace, the police can gain entry to premises without a warrant to “save life or limb”, under section 17(1)(e); or for the purpose of arresting someone for an indictable offence, such as ill-treatment or neglect under the MCA or MHA, under section 17(1)(b). They can also arrest, without a warrant, a person who is committing, about to commit or who has committed an offence, or of whom there is reasonable ground for suspicion that they have offended or will do, under section 24 of this act. This only applies if the police believe arrest is necessary for one of a series of reasons, including protecting a vulnerable adult (or child) from the person in question or preventing them from causing physical injury to another person.
What are the limits of these powers: As both Ruck Keene and the Scie guidance set out, the “life or limb” provision sets a very high threshold for entry that could only be used in emergencies where a person is at risk of serious bodily injuries. They also point out that councils would need to give the police firm evidence of a crime to pursue entry under section 17(1)(b) of Pace. Ruck Keene says there would typically be insufficient such evidence in cases where a social worker was seeking to gain access to a vulnerable adult for assessment. He also says the section 24 power to arrest without warrant would require a council to provide the police with “reasonable, objective ground for the suspicion” that a person has committed or will commit an offence. This rules out cases where social workers have received tip-offs from neighbours, for instance, that abuse is taking place.
Sources: Scie (2014) Gaining access to an adult suspected to be at risk of abuse and neglect: a guide for social workers and their managers in England
Action on Elder Abuse/Alex Ruck Keene (2014) Briefing paper on the need for a new power of access in defined circumstances: analysis of current powers of entry
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