Feature

posted 13 Dec 2003 in Volume 9 Issue 1

Help for the neglected client

“Love and a cough cannot be hid” so the old proverb goes but neglect tends to be grey upon grey. Ged Morton, a solicitor working for the City of Sunderland, explains the practicalities of the No Secrets guidance.

In March 2000, the government published its long-awaited guidance to local authorities and other agencies working to protect vulnerable adults. It is entitled No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse Local Authority Circular LAC (2000)7 (available on the internet at www.doh.gov.uk/pdfs/nosecrets.pdf). The guidance sets down a framework for local agencies, particularly health, social services and the police, to work together to protect vulnerable adults from abuse, by developing multi-agency policies and procedures. The government’s expressly stated advice within the guidance is that the statutory agencies must work in partnership as advocated in the Health Act 1999 and in collaboration with all agencies involved in the public, voluntary and private sectors and they should also consult service users, their carers and representative groups concerned with adult protection to progress the development and implementation of robust policies and procedures.

The No Secrets guidance was published pursuant to section 7(1) of the Local Authority Social Services Act 1970. Section 7(1) states: “Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by the relevant enactment, act under the general guidance of the secretary of state.” Social services authorities are, therefore, bound to follow and implement such guidance. It is mandatory. See R. -v- Islington London Borough Council ex parte Rixon (1998) I.C.C.L.R. 119.

In the absence of specifically drafted adult protection legislation, No Secrets has become the bedrock for local authority investigations and ultimately, interventions for the protection of vulnerable adults. A familiarity with its workings in the adviser’s locality can be an invaluable tool in ensuring that the potentially abused vulnerable client’s wishes and expectations are met by the local agencies with whom they are involved.

Who is a vulnerable adult?

To determine whether a local authority or other caring agency can become involved to prevent or tackle abuse in individual cases will, in the first instance, depend on whether the victim requires extra support and assistance over and above that which is otherwise available to them. For example, most people subjected to an assault or a theft would be able to take appropriate steps to contact the police and have the matter investigated. Hopefully, they would also be able to ensure that steps were taken to protect themselves in future. But what of those people who cannot make their voice heard in this way? The vulnerable should also have the right to prevent abuse happening to them and it is to these people that local agencies and in particular local authorities have a duty to assist.

There is no universal definition of who a local authority should consider as being a vulnerable adult, however, the definition is likely to include people aged 18 years and over who are dependent upon any or all of the following:

Family members;
Their social network;
Professionals;
Volunteers.

And/or have a special need arising from any or a combination of the following:

The ageing process;
Physical and/or mental ill-health;
Learning and/or physical disability;
Sensory impairment.

The Law Commission in the consultation document, published by the then Lord Chancellor’s department, Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults, which was published in December 1997 (Cm 3803) suggested a broad definition of a vulnerable person, as someone of 16 years or over who is or may be in need of community-care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation.

The broad nature of the definition is not necessarily a drawback as it allows the local authority to be fairly inclusive of those in the community who may need its help and assistance without imposing an arbitrary barrier to assistance.

What is adult abuse?

As with the definition of vulnerable adult, there is no nationally agreed, single definition of adult abuse either. As such, once again the term “abuse” can be subject to a wide interpretation.

The Department of Health document No Secrets guidance suggests: “Abuse is a violation of an individual’s human and civil rights by any other person or persons.”

Commonly, abuse will fall into one of the following general categories: physical, psychological, sexual, financial, neglect, discrimination, institutional abuse and sociological abuse.

Neglect or the right to choose how to live

Local authorities and other caring or enforcement agencies must recognise that all adults, including vulnerable adults have certain basic rights that must be respected. Merely because someone is vulnerable or elderly should not lead to the adoption of a paternalistic approach by such agencies. The right of the individual to choose how they wish to live should not be diminished by unnecessary interference or intervention by agencies, even where they purport to act in the best interests of the person. The protection by agencies of the vulnerable should be discharged wherever possible with the consent of that person.

Within this context, the value of independent advice and advocacy services on behalf of the vulnerable adult cannot be underestimated. The legal advisor can and should play a pivotal role in ensuring that the voice of the vulnerable client is clearly heard and acknowledged within the process.

Where abuse is suspected and/or identified, agencies will commonly convene a mutli-agency meeting to discuss strategies and put in place an action plan. Such meetings should aim to fully involve the vulnerable adult, and should not simply impose a plan upon them. It is at this point that the vulnerable adult’s legal adviser will be able to become directly involved in the process, to voice the concerns of the client and to ensure that their wishes and feelings are respected. They will also be able to provide impartial advice to the client on the options that the agencies may present to them. The No Secrets guidance recognises that the vulnerable person should have access to an advocate to represent their views. In some cases, this may well involve the agencies helping to appoint an independent advocate to represent the interests of those subject to abuse. Agencies must remember that the investigation of abuse in individual cases cannot be undertaken without the consent of the abused person (with the exception of some instances where the person lacks capacity to decide). The abused vulnerable person retains the right to decide their own future and to choose their own advocate and representative.

Any agency that sought to exclude the professional adviser is undoubtedly inviting a challenge to its process. Where social services authorities are involved, reference may be made to the social services authority statutory complaints procedure, Local Authority Social Services Act 1970, Section 7B as amended by the National Health Service and Community Care Act 1990, Section 50.

Victims, carers and perpetrators

It is not only the victim of abuse that local authorities need to support when adopting policies and strategies for vulnerable adults. Families and carers will also require support and will have a role to play. So, too, in some situations the perpetrators of abuse will also need help. A difficult reality of some investigations of abuse is that often the perpetrator is a vulnerable adult themselves. Within the residential care setting the issue of bullying between residents and the possible escalation of this into physical and emotional abuse, is one example of the difficult situations that may arise. Agencies must support both the abused person and the abuser, remembering that the abuser’s actions may in themselves merely be symptomatic of some greater problem that the abuser is coping with.

Agencies must recognise that victims of abuse have the right to be protected from that abuse. They should see the victims needs as paramount in any investigation or in deciding any further action.

They must recognise that victims should be taken seriously; victims concerns and views should not be dismissed. Agencies should ensure that victims are kept fully appraised and informed, of the processes and outcomes in any investigation of abuse and agencies should promote the victims right of access to independent advocacy and/or advice.

Carers, often family and friends of the victims, also need to be supported by agencies. Their views and opinions should be taken into consideration and they have the right to be kept informed of processes and outcomes where it does not conflict with the best interests or right of confidentiality of the victim.

The perpetrator, where they are the vulnerable adult, will also need support. Again they should have the right of access to independent advocacy or advice or support.

They should also have the right to be kept informed of processes and outcomes where it does not conflict with the best interests or right of confidentiality of the victim of the victim. They also have the right to treatment and support within the context of care planning to prevent abuse occurring in future.

Any one of these groups of people could be a potential client. Whether it be the victim ensuring that their voice is heard and that they are properly empowered, or the carer who has alerted social services and wants to ensure that action is taken, or the alleged perpetrator who is accused but has not got the ability to defend themselves. In each case, there is a role for the legal advisor to champion the client’s position.

Key legal powers

The often heard lament of social workers and legal advisers working for bodies such as local authorities within the realm of adult protection is the lack of a single codified piece of legalisation dealing with the issue. Practitioners working with children have the Children Act 1989 as a source of powers and guidance for their actions, whereas there is no such similar piece of legislation for adults. The Law Commission published a draft bill for consultation in 1995 but some eight years later, there remains no clear proposal for such a piece of legislation being put before parliament. This is not, however, to say that social services and other agencies are toothless and unable to act. There are, within existing legislation and in the common law, significant powers that can be used. Some of the key powers used by local authorities can be found as follows:

The Mental Health Act 1983: This provides that where a person has a mental disorder, powers of guardianship exist under Section 7. This empowers social services to require a person to reside at a particular residence or attend for medical treatment or to gain access to where they live. Section 135 also permits intervention to remove the person from their home. There are also the rules of the Court of Protection, which can be used to minimise the risk of financial abuse by the appointment by the court of a receiver to administer their financial affairs.

Local authorities, most often through the person of director of social services, may take on this receivership role. Often this will be as a last resort, it is unusual for social services to take on the role where there is someone suitable from the family or close friend, who is willing and able to take on the responsibility. Social services may look to become involved, especially in cases where a family member or close friend is seen as a potential abuser, financially or otherwise.

It is recognised that there may arise a conflict of interest, as between a director of social services as a receiver and their functions as the head of the local authority department, empowered to provide services and make assessments for such services. While this conflict cannot be avoided entirely, it is moderated to some degree, by the fact that social services may only undertake to do what the Court of Protection has authorised, relating to decision making about property and financial affairs as per the Mental Health Act 1983, section 99(2).

There is also a procedure for the removal of a receiver as per rule 9 of the Court of Protection Rules 1994, which can be raised by an objector.

Once again, if a person considers that they have been treated unfairly by social services, there is a recourse to the Social Services Authority statutory complaints procedure, Local Authority Social Services Act 1970, section 7B as amended by the National Health Service and Community Care Act 1990, section 50 or to the Local Government Ombudsman.

The National Assistance Act 1948: Section 47 of this Act allows a local authority, on the approval of the community physician, who is a doctor appointed by the local health authority, to apply to a magistrates court to remove a person from their home. The provision is available where an elderly, disabled or otherwise infirm person poses a risk to their own health or a risk to the health of, or serious nuisance to, other persons, most probably neighbours, as a consequence of them living in insanitary conditions.

Common law: Within the common law, the principle of “necessity” provides a defence to conduct that is tortious, and can be used by local authorities to defend themselves concerning the taking of decisions in the best interest of the vulnerable person. This is extended further by the emerging power of “Declaratory Relief “in the High Court. Local authorities can now seek a declaration, where a person is incapable of making their own decision on a range of medical issues and importantly where a person should reside, where the choice is determined as being in their best interests. The court acts as the arbitrator as to whether the local authority truly is acting in the person’s best interests. In Re F (Adult Patient) sub nom Re F (Adult : Courts Jurisdiction) (2000) 3 WLR 1740, it was held that where there was an obvious gap in the mental-health legislation for the care of mentally incapacitated adults, under the doctrine of necessity and within the circumstances of the case, the court could apply its inherent jurisdiction by way of declarations to protect the individual’s welfare in a positive approach to Article 8 of the European Convention on Human Rights.

Indirect powers: As well as powers invoked by local authorities directly, there are powers that the individual can invoke in their own right to protect themselves. The Family Law Act 1996 provides for protection against domestic violence. There are also the general criminal powers such as contained in the Offences Against the Person Act 1961, The Theft Act 1968 and The Sexual Offences Acts 1956-1985. These criminal powers require the vulnerable person to make a complaint. Part of the local authority’s duty may be in supporting the person to do this but equally, this role could be taken on by the person’s legal advisor or a combination of both. This support could envisage liaison with the Police and Crown Prosecution Service to ensure that, where appropriate, the vulnerable person receives the protection of “special measures”.

The criminal justice system now recognises that in some cases, witnesses are just too frightened to give evidence because they feel intimidated. In others, involving people with a disability, it has been shown that there have been too many instances in which evidence has not been taken seriously. The consequence of this was the introduction of the Youth Justice and Criminal Evidence Act 1999. This Act introduced some important new safeguards called “special measures” for the protection of vulnerable adults in court, some of which are shown in the box below.

These provisions were delayed in their introduction requiring a statutory instrument to bring them into operation. This was finally enacted in 2002 with the making of the Youth Justice and Criminal Evidence Act 1999 (Commencement No. 7) Order 2002, SI 2002 No. 1739. The provisions came into effect on 24 July 2002.

The general thrust of all adult-protection measures must be the empowerment of the individual, allowing them the ability to choose their own course. This undoubtedly requires the vulnerable person to be properly informed of the choices open to them and the right to have their voice heard. This cannot be achieved unless vulnerable people have access to good quality independent advice distinct from the views of professional agencies, such as social service or health authorities. There is an important role for the professional adviser to become involved in adult-protection matters for the clear benefit of the client and to the process as a whole. It is, therefore, incumbent upon them to liaise with local authorities to establish what frameworks have been developed in their area and how they can become involved. The guidance stipulates that a senior manager should be identified in each agency to take the lead role with regard to the development of the policy and strategy, issuing operational guidance, promoting good practice, making policy recommendations to corporate management groups and negotiating with other agencies within an inter-agency framework. Initial contact with the local authority, outside of individual cases, should certainly be made by the professional adviser with this designated officer, hopefully with the common intention of fostering a better understanding of each others role in the process of protecting and speaking up for vulnerable people.

Ged Morton can be contacted at City of Sunderland, PO Box 100, Civic Centre, Sunderland SR2 7DN or e-mail: ged.morton@sunderland.gov.uk