Published: October 2014 | Last updated: October 2018
The aim of this guide is to clarify existing powers relating to access to adults suspected to be at risk of abuse or neglect. The safeguarding duties under the Care Act 2014 apply to an adult who:
The guide has been created to provide information on legal options for gaining access to people who fulfil the three criteria above, where access is restricted or denied. It is intended as a reference in situations of uncertainty, rather than as a learning tool. It is important that social workers and their managers are as clear as possible on which legal powers or options apply to which situations, and in cases of any uncertainty that they consult their senior managers and/or the legal department of the local authority.
Throughout the guide you will find links to information on the relevant legislation and case law, should you wish to consult this.
Under Section 42 of the Care Act, a local authority has a duty to make enquiries itself or cause others to make enquiries in cases where it has reasonable cause to suspect that an adult:
The purpose of a safeguarding enquiry is for the local authority to clarify matters and then decide on what course of action (if any) is required in order to protect the adult in question from abuse and neglect. If any action is necessary, then it is for the local authority to take the lead in coordinating what action is appropriate, and by whom. A safeguarding enquiry may not necessarily result in what is typically considered to be a ‘safeguarding response’, such as an investigation by the police or a health and social care regulator, but it could result in other action to protect the adult concerned, such as providing a care and support package for the adult and/or their carer.
The purpose of the safeguarding enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. In almost every case it is likely to be necessary to physically see and talk to the adult in order to be able to make that decision.
Good safeguarding practice begins with talking to the adult whom there is concern about, unless there are exceptional circumstances that would increase the risk of abuse. That conversation will need to establish facts and, importantly, what the person wants to happen and how. Practitioners need to make personal contact with the people they are working with and establish a relationship. Therefore the issue of access and ability of the person to talk freely is critical.
If the adult has substantial difficulty in being involved, and where there is no one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement.
People must be assumed to have capacity to make their own decisions and be given all practicable help to do so before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for them, or on their behalf, must be made in their best interests.
Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual wellbeing, as defined in Section 1 of the Care Act.
All safeguarding policies and practice should reflect the principles underpinning good safeguarding set out in the Care Act’s statutory guidance for implementation. [1]
There are six principles of adult safeguarding:
There will be a wide range of reasons why, and circumstances when, it may be difficult to gain access to an adult who is the subject of an adult safeguarding enquiry. Here are some examples:
However, the simple fact of access being refused should not automatically lead to consideration of the use of legal powers. Such situations are often complex and highly sensitive and, if they are to be resolved successfully and safely, will need sensitive handling by skilled practitioners. All attempts to resolve the situation should begin with negotiation, persuasion and the building of trust. Denial of access may not necessarily be a sign of wrong-doing by the third party; it may be an indication of lack of trust of authority, guilt about their inability to care, or fear that the adult will be removed from the home. It is vital that until the facts are established the practitioner adopts an open-minded, non judgemental approach.
If all attempts fail then the local authority must consider whether the refusal to give access is unreasonable and whether the circumstances justify intervention. There will need to be a local authority-led discussion about what the perceived risks are, the likelihood of risk or neglect occurring, and the potential outcomes of both intervening and not intervening. As in any other situation, any decisions and the reasons for them should be clearly and fully recorded and shared with others as necessary and lawful.
If the conclusion is that the use of legal powers is necessary and justifiable, the next step is to consider what powers would be most appropriate.
Therefore local authority managers and practitioners involved in safeguarding need to be aware of existing legal powers which can be used if necessary to gain access to make enquiries, or cause enquiries to be made, in order to assess what (if any) safeguarding action is needed to protect an adult thought to be at risk of abuse and neglect because of their care and support needs.
Recourse to the courts and legal powers should be considered carefully and only as a last resort. Local authorities must satisfy themselves that there are grounds to seek access and that the use of such powers will not be unlawful, or leave an adult in a worse position. Clearly any unlawful intervention could lead not only to judicial criticism but also to liability (whether as a result of a breach of human rights or otherwise).
Any interference by the state (meaning public bodies, or sometimes private bodies carrying out functions of a public nature) must be lawful and necessary. The stipulation of necessity encompasses a requirement of proportionality. Where the use of any power of entry is thought necessary, it should be exercised proportionately, in relation to the risk and the apparent gravity of the situation.
If powers of intervention are to be exercised lawfully and proportionately, it follows that practitioners involved in safeguarding require a basic knowledge of what powers are available; in particular, when and how they can be used – and, just as importantly, when they cannot be – and whom to consult in cases of uncertainty.
Of course an emergency situation involving significant risk may justify the use of coercive powers, such as police entry to save life and limb, if there is clearly no time to attempt a negotiated, non-coercive approach.
The principle of the least restrictive option helps to ensure that interventions are necessary and proportionate.
Section 1 of the MCA requires that, in respect of an act or decision done for a person who lacks capacity, consideration must be given to achieving the person’s best interests in a manner which is least restrictive of the person’s rights and freedom of action.
Likewise the least restrictive principle is a guiding principle in the statutory Code of Practice for the Mental Health Act 1983: it states that
Any restrictions should be the minimum necessary to safely provide the care or treatment required having regard to whether the purpose for the restriction can be achieved in a way that is less restrictive of the person’s rights and freedom of action.
Mental Health Act 1983: Code of Practice [2]Further, Section 1 of the Care Act 2014 states that a local authority, in exercising its functions under Part 1 of the Act in the case of an individual, must promote that individual’s wellbeing and have regard to a number of factors including the need to ensure that any restriction on the individual’s rights or freedom of action is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
If, when a practitioner is undertaking an assessment or a review of a care and support plan, they come to know or suspect that the adult is experiencing, or is at risk of, neglect or abuse, then this will trigger the duty to make enquiries under Section 42 of the Care Act. [3] Such a trigger can work both ways: an assessment for care and support can be triggered during the course of a safeguarding enquiry.
The duty demands that either the local authority itself makes the enquiries, or (where appropriate) that it asks another person or agency to do so; for example, asking the police to investigate where a crime is suspected, or asking a health professional if they visit the adult regularly.
The duty to make enquiries (or to cause them to be made) does not hinge on a request by the adult or anybody else and is not negated by a third party’s refusal to grant access to the adult, nor by the adult’s refusal to participate.
Under the Care Act, there is no express legal power of entry or right of unimpeded access to the adult. However, where necessary, local authorities can apply to the courts or seek assistance from the police to gain access in certain circumstances under existing powers.
At some point during the making of enquiries by the local authority, legal powers may be required to gain access to the person known or suspected to be experiencing, or at risk of, abuse or neglect.
The following legal powers may be relevant, depending on the circumstances:
More detail as to the application and limitation of these legal powers follows in the sections below.
An assessment to establish whether a person lacks capacity should take place whenever there is concern that an individual might lack the mental capacity to make a proposed decision. A person must be assumed to have capacity unless it is shown that they lack capacity. [4]
Capacity must be assessed in accordance with Sections 2 and 3 of the MCA and decided on the balance of probabilities. Under Sections 2 and 3 of the MCA, it must be established that a person lacks capacity in relation to a specific and relevant matter at the material time.
In the context of this guide, the capacity in question could relate to, for example, the adult’s capacity to make decisions about their situation or to cooperate with the local authority in undertaking the safeguarding enquiry.
An application may be made to the Court of Protection under the MCA to facilitate gaining access to an adult who lacks or may lack capacity, in a case of suspected neglect or abuse, where that access is being denied or impeded. The Court’s permission to make an application will be needed. [5]
The Court of Protection must apply the fundamental principles in Section 1 of the MCA:
The Court of Protection could make an order under Section 16(2) of the MCA relating to the welfare of a person who lacks capacity, which makes the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person.
Failure to comply with an order of the Court of Protection could be a contempt of Court. The Court can attach a penal notice to the order, warning that failure to comply could result in imprisonment or a fine.
The Court of Protection may appoint a deputy for a person who lacks capacity under Section 16(2) who can make the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person.
The Court of Protection could make interim orders and directions under Section 48 if an application to the Court of Protection has been commenced but not yet determined if:
The pending application could be in relation to whether the person lacks capacity, what arrangements would be in that person’s best interests, or an application to authorise a deprivation of liberty.
Interim orders/directions cannot be sought if there is no pending application.
The Court may make interim orders or directions that include requiring immediate safeguarding steps relating to the adult’s personal welfare to be taken.
The interim order or directions may contain directions to permit a person entry to premises and access to that person. Obstruction by a third party of access to and assessment of that person may be a contempt of Court. A penal notice may be attached to the order or directions, warning that a breach could result in imprisonment. The order or directions may be against not just the third party but also that person.
The case of ‘Re SA; FA’ v. ‘Mr A’ (2010) EWCA Civ 1128, para 52 [6]
In this case, the mental capacity of a young woman needed to be determined. Both she and her mother denied that she lacked capacity. There were great difficulties in communicating with and obtaining the engagement, assistance and cooperation of both daughter and mother. An interim order was made by the Court against both, with a penal notice attached to the following effect:
The order … should not merely contain the appropriate declaration as to the need for the further assessment (confined to the questions of capacity) but also the consequential directions requiring cooperation and facilitation by [the daughter] and her mother. In addition, the order should contain a liberty to apply as to implementation and enforcement, that is, liberty to apply by the local authority and/or the Official Solicitor in the event of difficulty, that application to be made to the Court of Protection.
It may be that the direction will simply be about obtaining appropriate and specialist evidence quickly so that the person’s capacity can be reliably determined.
However, the Court will only make orders or directions against a third party if necessary. If the third party gives an undertaking to cooperate, which the Court believes is genuine, it will not be necessary to make the orders or directions.
The nature of any direction depends on the individual facts of the case, the circumstances of the adult, and the seriousness of the urgent decisions in question.
All this will be balanced against the restriction of the adult’s decision-making being kept to a minimum, consistent with his or her best interests.
‘Inherent jurisdiction’ is a term used to describe the power of the High Court to hear any case which comes before it unless legislation or a rule has limited that power or granted jurisdiction to some other court or tribunal to hear the case. This means that the High Court has the power to hear a broad range of cases including those in relation to the welfare of adults, so long as the case is not already governed by procedures set out in rules or legislation. It is ‘common law’ developed by the High Court to control the procedures before it and to stop any injustices arising from it being prevented from hearing any case.
It is not normally used in relation to people who lack capacity, because such cases are dealt with by the Court of Protection under the procedures established by the MCA.
However, inherent jurisdiction may still be relevant to an adult lacking capacity if the matter and intervention required are not covered by the MCA; for example, when making a declaration of non-recognition of a marriage or depriving a person of their liberty for the purpose of enforcing physical treatment.
It will also sometimes be necessary for a local authority to make an application to the High Court to ask the Court to exercise its inherent jurisdiction to protect an adult with mental capacity.
The order could in principle be directed against a third party and so relevant to a situation on which this guide focuses: the denial of access by a third party to a person suspected of experiencing, or at risk of, abuse or neglect.
The MCA only applies if a person lacks capacity within the meaning of Sections 2 and 3 of the MCA, subject to the Court of Protection powers under section 48 (see above) even if capacity has not been formally determined.
If, however, the person has capacity but cannot take a decision (freely) because of coercion, undue influence or constraint – or other circumstances – then an application can be made relying on the Court’s inherent jurisdiction.
In this case, a local authority made an application to the courts with a view to protecting an elderly woman from a live-in informal carer and her husband. The woman’s mental capacity was at the outset uncertain. So at that point it was unclear whether the Mental Capacity Act or the inherent jurisdiction was applicable:
Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA Sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the Court under its inherent jurisdiction.
The courts continue to develop and explore the extent and application of inherent jurisdiction, which is protective in relation to adults in vulnerable circumstances, and they will endeavour always to avoid undermining the principles in Section 1 of the MCA that an adult can take unwise decisions without this necessarily indicating a lack of capacity.
Orders made under the Court’s inherent jurisdiction may or may not be time-limited.
The courts will also be mindful that rash use of the jurisdiction would risk breaching Article 8 of the European Convention on Human Rights (‘ECHR’) (‘right to respect for private and family life’). However, at the same time, so-called ‘positive obligations’ to protect an individual’s rights under the EHCR may require the courts to intervene by exercising its inherent jurisdiction. This implies that in appropriate cases, local authorities should also be asking the courts to consider exercising its inherent jurisdiction on human rights grounds.
According to the courts, the inherent jurisdiction can be exercised for vulnerable adults, with or without capacity, who are ‘reasonably believed’ to be ‘under constraint’ or ‘subject to coercion or undue influence’, or for another reason ‘deprived of the capacity to make the relevant decision’, or prevented from making a free choice, or from ‘giving or expressing a real and genuine consent’.
There has been no specific definition of what constitutes ‘vulnerable’ in such cases, and the jurisdiction is not confined to ‘vulnerable’ adults, but equally adults at risk of abuse and neglect do not automatically come under it.
Factors to consider when an adult can be considered ‘vulnerable’ have been suggested; for example, people unable to take care of themselves or protect themselves from harm or exploitation by others. Those suffering from mental illness or physical disability may also be considered vulnerable, depending on the circumstances. Clearly, it will be easier to make a case for exercising the jurisdiction in relation to apparently vulnerable adults than for those who do not appear vulnerable.
The important thing to remember when considering applying to the Court to use its jurisdiction to grant an access order is that its purpose is not to overrule the wishes of an adult with capacity, but to ensure that the adult is making decisions freely. In the context of this guide, constraint, coercion or the undue influence of a third party may be preventing the adult’s ability to make free decisions, and recourse to the Court’s jurisdiction may be used to assist professionals in gaining access to assess the adult.
In situations such as those on which this guide focuses, it is possible that an order could be made against the person responsible for undue influence, constraint or coercion if this is also necessary to protect the adult in question. In one case, an order was contemplated against a son who was allegedly mistreating his parents. But even in such a case, the Court would want to scrutinise carefully any application for such an order, especially if the person(s) to be protected – in this case, the parents – do not support it. For instance, if the third party undertakes, plausibly, to cooperate on relevant matters, then the Court will not grant an injunction against them.
The case of ‘A Local Authority’ v. ‘DL’ [2010] EWHC 2675 (Fam), Charles J, para 9 [8]
In this case, when a man was allegedly mistreating his elderly parents, GRL and ML (who, at the outset, both had mental capacity), the local authority sought an order from the High Court prohibiting him from acting unlawfully towards them.
Within the list of prohibitions sought, two stand out in relation to this guide: not interfering with care and support and refusing access to health and social care professionals. The courts confirmed that inherent jurisdiction did exist in principle for such orders (see ‘A Local Authority’ v. ‘DL’ [2011] EWHC 1022 (Fam), Theis J, para 53, and ‘A Local Authority’ v. ‘DL’ [2012] EWCA Civ 253, Court of Appeal, para 63).
The order sought was to prohibit the son from doing the following (emphasis in relation to access added):
Under Section 115 of the Mental Health Act 1983 (Powers of entry and inspection) an approved mental health professional (AMHP) may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered person is living – if the professional has reasonable cause to believe that the person is not receiving proper care.
This power can only be used after the approved professional, if asked, has produced a duly authenticated document showing that he or she is such a professional.
Section 115 does not allow for forced entry, the use of force to override the owner’s refusal to give permission to enter, or for force to be used to talk to a person alone in the dwelling. However, obstruction without reasonable cause by a third party of the approved professional acting under Section 115 could constitute an offence under Section 129 of the Act.
If entry is still refused, the AMHP may consider whether an application for a warrant under Section 135 is justified.
This section of the Act is relevant to the focus of this guide because it is one way of gaining access to a person reasonably suspected of being ill-treated or neglected. In addition, the ‘reasonable cause to suspect’ condition is mirrored in Section 42 of the Care Act (‘making enquiries’).
Under Section 135(1), a magistrate may issue a warrant authorising a police officer to enter premises specified in the warrant, using force if necessary, and if it is thought fit, to remove a person to a place of safety (defined in Section 135(6)) for a mental health assessment. The constable must be accompanied by an AMHP and a doctor.
Such a warrant may be issued only if it appears to the magistrate from information received on oath from an AMHP, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder (a) has been, or is being, ill-treated, neglected or not kept under proper control, or (b) is unable to care for himself or herself and is living alone. A person who is removed to a place of safety can be held there for a period not exceeding 72 hours. This would be with a view to making an application for detention under the MHA or other arrangements for care and treatment.
There also has to be a belief, but not a certainty, concerning the existence of a mental disorder – which is defined widely in Section 1 of the MHA.
Removal of the person to a place of safety is not inevitable. It should only take place ‘if thought fit’. Having spoken to the person, it might be decided that removal is not necessary.
Once a person has been removed to a place of safety, this does not necessarily mean an application for detention will be made under the MHA. It may be that ‘other arrangements’ for care can be made instead, such as an informal hospital admission, or regular home visits from a crisis resolution or community mental health team.
In some cases, it may be decided to do nothing, once the person has been spoken to. In these instances, the legal authority to detain the person at a place of safety lapses.