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Last Updated: Monday, 12 February 2007, 15:32 GMT
The law relating to the protection of vulnerable adults
Luke Clements
Luke Clements is a reader in Law at Cardiff Law School and solicitor at Scott-Moncrieff Harbour & Sinclair in London.

Panorama highlights a most serious but little understood gap in the law, namely the absence of any accessible and effective procedure by which vulnerable adults at risk of abuse can be protected.

The Law Commission proposals

The Law Commission in 1995 stated that it had no confidence in the adult protection procedures that existed then (and remain unchanged to day).

It called for the enactment of a 'new set of modern and acceptable emergency protective powers'.

These would give social services departments' similar powers to protect vulnerable adults as they have for children subject to abuse.

These would include a duty to investigate allegations of abuse, empower magistrates' courts to issue entry warrants, temporary protection orders and removal orders in relation to adult victims of abuse and create of an offence of obstructing an officer acting under such an order.

It is difficult to understand why these enormously important proposals have never been enacted. They would of course involve public expenditure, but with such widespread evidence of the abuse older people are being subjected to, this alone seems an insufficient reason.

The evidence suggests that at any one time approximately '500,000 older people in England are being abused' and that 'few measures have been taken to address it' .

Court of Appeal criticism

In a landmark ruling in the year 2000 the Court of Appeal expressed grave concern over the 'obvious gap' in the legal framework for protection of vulnerable adults.

The Court noted that successive governments had failed to legislate in this field, and so decided that it had to 'speak where Parliament, although the more appropriate forum, was silent' (in Lord Justice Sedley's words).

In effect, the Court of Appeal created a new procedure for protecting vulnerable adults - known as 'declaratory relief'.

The development of this procedure was not - in Dame Elizabeth Butler-Sloss's opinion - a substitute for action by Parliament: it could not 'detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults'.

Confused roles

Where abuse is suspected in an institutional setting, such as a private nursing home, it might appear logical that the regulatory and inspection authority - namely the Commission for Social Care Inspection in England (CSCI) - should undertake the investigation.

The CSCI is, after all, the authority that has the power of entry and the power to close failing care homes.

The CSCI however does not consider itself to be the appropriate agency, stating that 'the responsibility for investigation of individual cases within safeguarding adults procedures rests primarily with other partners including the local authority' .

Given the severe limitations on the powers of local authorities, the failure of the Government to accord the CSCI such an investigatory role means that many vulnerable residents are left unprotected.

Current position

What then is the situation today, if an adult is suspected of being abused?

If there is powerful evidence, the police may take action - but in the vast majority of cases this does not occur. In the absence of police action, the statutory agencies may initiate a series of 'vulnerable adult' meetings.

The relevant procedures are detailed in guidance first issued by the Department of Health in 2000 and known as 'No Secrets' ('In Safe Hands' in Wales).

These procedures are augmented by the 'Protection of Vulnerable Adults' (POVA) scheme - which endeavours to ensure that people caring for vulnerable adults are vetted prior to undertaking this role (via pre-employment checks including Criminal Records Bureau checks).

These POVA arrangements will be reformed when the Safeguarding Vulnerable Groups Act 2006 comes into force.

The Act introduces a new vetting and barring scheme for people who are known to be unsuitable to work with children and vulnerable adults.

The Act does not however provide protection where the suspected abuser is not employed in a caring role (ie if s/he is a relative or neighbour etc).

The 'No Secrets' ('In Safe Hands') procedures lack teeth: so that if the police are of the view that prosecution of the suspected abuser is not possible then there is very little that an inter-agency meeting can achieve - apart from deciding to hold another meeting.

All too frequently there will be a strong perception that the adult is being abused (by a family member, neighbour etc.) accompanied by an equally strong sense of powerlessness - that there is nothing that can be done.

In such cases the only effective action would be to apply to the High Court for 'declaratory relief'.

This however is an expensive and relatively complicated procedure, requiring the preparation of special court documents by barristers and invariably involving expenditure by a local authority of many thousands of pounds.

Councils simply do not have the resources to commence cases of this nature except in the most severe situations.

Although the calls for specific legislation to protect vulnerable adults continue , there is little to suggest that these will prompt the Government into action.

In 2005 Parliament enacted the Mental Capacity Act , but this Act contains no specific procedures designed to protect adults from abuse.

In January last year, Paul Burstow MP introduced 'The Care of Older and Incapacitated People (Human Rights) Bill ' into Parliament as a 10 Minute Rule Bill to highlight the gap in the law.

The Bill, had it been give Parliamentary time, would have enacted the key adult protection provisions proposed 10 years earlier by the Law Commission.

Double standards in England?

It is indeed a legitimate question to ask, just how seriously the Westminster Government views adult abuse.

This might seem a curious question, given that last April it unveiled a 'zero tolerance of abuse' campaign which was then followed in November with a 'Dignity in Care' campaign that also pledged zero tolerance of abuse.

Set against this however, is its binding guidance to English social services departments on when support should be given to vulnerable adults (in terms of community care services).

This guidance specifically allows local authorities to limit their services to people whose need is 'critical' (ie in the most severe need).

The evidence suggests that increasing numbers of English local authorities are following this advice and considering restricting their services to people whose need is critical .

The binding guidance, known as 'Fair Access to Care Services', states that an adult who is experiencing abuse is not in 'critical need', and so may be denied support. Help need only be provided if the abuse is 'serious'.

The English guidance therefore shows a tolerance of abuse and only a zero tolerance of 'serious abuse'.

The equivalent Welsh guidance, however, treats all abuse as 'critical'.



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