The Magistrates’ Courts (Adult Protection and Support Orders) Rules 2017 (the rules) came into force on 21 December 2017. They provide for applications to be made for adult protection and support orders under section 127 of the Social Services and Well-being (Wales) Act 2014 (the Act).
The Act came into force on 6 April 2014 making adult protection and support orders a possibility. However, there was no provision in the Act for a procedure to obtain them.
Adult protection and support orders enable a person authorised by a local authority in Wales - an authorised officer - to speak to a person in private living in any premises within the local authority’s area who is thought to be an adult at risk.
An adult at risk is defined in the Act under section 126 as someone who is:
- experiencing or is at risk of abuse or neglect
- has care and support needs (whether or not the authority is meeting those needs)
- as a result of those needs, is unable to protect him or herself against the abuse or neglect or the risk of it
Under the Act, if a local authority has reasonable cause to suspect that a person within its area is an adult at risk, it must make whatever enquiries it thinks necessary to enable it to decide whether any action should be taken. The Rules enable these enquiries to be made by application to the Magistrates for an adult protection and support order.
By allowing an authorised officer to speak to a person in private, the authorised officer can ascertain whether the adult suspected to be at risk is able to make decisions freely, is assessed as being at risk and can properly assess what, if any, action should be taken.
On making an application, an authorised officer must explain why the order is needed. To do this, he or she needs to provide evidence of:
- the reason(s) why there is reasonable cause to suspect that an adult is at risk
- why it is necessary to gain access to properly assess the adult and determine what support may be required
- why the order is necessary to enable the purpose of assessment to be fulfilled
- why exercising the power of entry conferred by an order would not result in the person involved being at greater risk of abuse or neglect
When an adult protection and support order is in force, the authorised officer, or a police constable if necessary, has the power to enter the premises where the suspected adult at risk is living. The order must specify (i) the premises to which it relates, (ii) that the authorised officer may be accompanied by a constable, and (iii) the period for which the order will be in force.
Other conditions may be attached to an order, such as only exercising the powers of the order between certain times of day, or requiring notice to be given to the person to be assessed or others occupying the same address. A constable accompanying an authorised officer may use reasonable force if required to allow the order to take effect.
On making the application, the proposed time frame during which the order should be in force and any additional conditions to be attached should be made known to the court. A draft order should be provided for consideration.
These rules are extremely helpful to practitioners in Wales dealing with adult safeguarding as a clear procedure to apply for adult protection and support orders is now set out. Local authorities will need to identify who should be authorised officers in accordance with section 127 of the Act and standardised procedures developed to assist in making applications.
The rules also assist the police by setting out a clear procedure for them to act alongside the local authority in circumstances where previously, gaining access to premises to assess an adult potentially at risk could present a legal dilemma. Provided the criteria under the Act and the rules are met, this is a useful tool for practitioners to facilitate assessment of those potentially at risk.