In its report upon the Care Bill published on 27 January 2014, the Joint Committee on Human Rights welcomed the introduction of the new duty in (as it stands) clause 42 on local authorities to make enquiries where they reasonably suspect that an adult is at risk of neglect or abuse as promoting the Government’s positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction and to protect vulnerable individuals from ill- treatment. The Committee welcomed these provisions as “human rights enhancing measures.”
The Committee was also clear that the amendment passed in the Lords to the Bill to extend the Human Rights Act to all providers of care and support regulated by the CQC should stand so as to ensure that all providers of publicly arranged social care services are bound by the Human Rights Act.
Prior to the publication of the report, however, the Government narrowly won a vote at the Public Bill Committee stage in the House of Commons to reverse the amendment. It also appears that the Government has its face set against the introduction of any power of entry (or other supporting power) to accompany the Clause 42 investigative duty. In a Public Bill Committee debate on 21 January 2014, the Minister of State, Norman Lamb MP made clear, in response to sustained pressure from, inter alia, Paul Burstow, the former care minister, that the Government remained of the view that the existing powers available to social workers were sufficient. He noted the existence of:
“The Police and Criminal Evidence Act 1984, the Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005 provide a wealth of powers for use on the front line. I want to develop the point, because I suspect that there is widespread ignorance of what those powers amount to. That is no one’s fault; it is just the case.
My right hon. Friend [Paul Burstow MP] has been, as I would always expect of him, diligently exploring the various powers. The court can also hear any matters that come before it, unless excluded by a rule or statute. That enables the common law to develop and adapt as is required on a case-by-case basis to provide the remedy needed. We think that this inherent jurisdiction can meet the need of protecting vulnerable adults more readily than legislation may. There is a risk that by legislating, Parliament would oust the court’s inherent jurisdiction in this area and so limit the scope and means by which the courts can safeguard adults in need of care and support.
As for the ability to gain access to assess the mental capacity of a person suspected of being an adult at risk of abuse, that route is already available via the Court of Protection. The court is accessible, and can make orders, 24 hours a day.
Further legislation for a new power of access would risk sending the message that legal intervention takes primacy over negotiations and consensus, which, as I said, are at the heart of the skills of a good social worker”
Later, Norman Lamb MP noted that:
“We propose that case studies and possible scenarios illustrating the powers will be included in practical guidance that can be developed jointly by the Department of Health, the Local Government Association and ADASS so that, possibly for the first time, there is a clear guide to all the legislative provisions available and what they actually amount to. When I have sought to understand precisely what the various pieces of legislation provide for, I have found a degree of opaqueness. I suspect that many social workers out there in the field are not aware of what powers are available to them.”
Alex’s paper addressing the practical operation of the Scottish legislation, legislation that has been advanced as a partial model for a power of entry, is available here. We look forward to seeing the guidance promised by Norman Lamb MP in due course, and in particular insofar as it sets out the
Government’s views regarding both the powers of the High Court under the inherent jurisdiction and the Court of Protection under the MCA 2005. We would note at this stage that it is far from easy to say as a blanket statement that the Court of Protection is able to bring about access to assess the mental capacity of a person suspected of being an adult at risk. Indeed, some of the most difficult cases in which we have been involved have been those in which access has been denied by family members (or purported carers) to social workers to adults whom the social workers suspect, but cannot establish even on the low threshold set by s.48 MCA 2005, may lack capacity in one or more domains.