BRIEFING PAPER ON THE NEED FOR A NEW POWER OF
ACCESS IN DEFINED CIRCUMSTANCES
ANALYSIS OF CURRENT POWERS OF ENTRY
While there is no doubt that there are circumstances in which existing powers
of entry are appropriate and applicable, this is not the case where concerns
are expressed about the potential abuse or neglect of an adult who may be in
a vulnerable situation, but where there is insufficient evidence to be satisfied
that a crime has, or is about to be, committed. Such circumstances require
proper investigation in order to ascertain the facts and the views of the alleged
victim, and this requires access to that individual and the opportunity to
interview them alone.
The analysis of current law provided in this document indicates that the law at
present is insufficient to protect such people from harm.
Produced by:
Gary FitzGerald
CEO, Action on Elder Abuse
Alex Ruck Keene
Barrister, 39 Essex St Chambers
BRIEFING PAPER ON THE NEED FOR A NEW POWER OF ACCESS IN
DEFINED CIRCUMSTANCES
Action on Elder Abuse
February 2014
Produced by:
Gary FitzGerald
CEO, Action on Elder Abuse
Alex Ruck Keene
Barrister, 39 Essex St Chambers
______________________________________________________________
A. What is the issue?
The issue relates to circumstances in which a referral to adult safeguarding
contains concerns expressed by someone – a family member, a neighbour or
a member of the public – about the potential abuse or neglect of an adult, but
where those concerns are not accompanied by firm evidence (hence the need
for access to investigate and establish the facts). It could at this point be no
more than an unsubstantiated allegation.
It is important to frame the issue correctly. In particular, the circumstances
with which we are concerned are where:
1. The alleged victim has the mental capacity to take the relevant
decisions (for instance as to contact with a Third Party residing at the
same property), and is therefore not covered by the Mental Capacity
Act 2005;
2. The alleged victim does not have any known mental health issues, so
is similarly is not covered by the Mental Health Act 1983;
3. The concerns are sufficient to warrant investigation to establish
whether or not there are grounds for a safeguarding intervention but a
Third Party, who resides at the same property as the alleged victim,
refuses entry and insists there are no matters justifying state
involvement.
B. What is being proposed by Paul Burstow MP
Details of the proposed new powers of entry amendment can be found via the
following link: http://tinyurl.com/pgrvzrs.
The amendment proposes that in circumstances where a Third Party is
denying access and all reasonable steps have been taken to obtain
cooperation, Adult Safeguarding staff would be required to make an
________________________________________________________________ 2 ANALYSIS OF THE LAW application to a circuit judge authorised by the Court of Protection, seeking a
power of access. There would be a notification requirement so that in such a
case both parties had the ability to challenge what was being done.
It explicitly states that the circuit judge would have to be satisfied that all
reasonable steps had been taken to gain access without the benefit of an
order. It would make it a requirement that a police constable was present, and
would expand the requirements about the notification of complaints
procedures.1
The amendment would give to the authorised judges of the Court of
Protection a power that they do not currently have, because it would enable
them to grant relief in circumstances where they did not have evidence that
the adult lacked the capacity to take material decisions.
An application
made under the power granted by the amendment would, however, raise
issues that are not dissimilar to those that can arise upon applications that
can currently be made to the Court of Protection in respect of incapacitated
adults whose circumstances require investigation and who may require
protection.
C. What advice has the Department of Health given in relation to the
law?
The Department of Health (DH) provided a summary to the Minister for Social
Care of current legislation available to professionals who wanted to gain
access to speak to an adult who they believed might be at risk of abuse or
neglect.2
However, this summary covered a number of general circumstances relating
to a need for access, rather than just the specific set of conditions relating to
the proposed amendment. Consequently, some of the law identified was
irrelevant to the issue.
There were four main options outlined in the DH paper. Each are discussed
in turn.
1 Hansard 4th February 2014.
2
Annex A Existing Powers – Final; Department of Health, 3 February 2014 ________________________________________________________
ANALYSIS OF THE LAW 3 1. The use of the Police and Criminal Evidence Act 1984 (PACE)
17(1)(b) which enables the Police to enter and search premises
without a warrant to effect arrest for an indictable offence. The
following supportive legislation was identified as containing indictable
offences:
a) Section 5 of the Domestic Violence, Crime and Victims Act 2004
relating to the offence of causing or allowing a child or a
vulnerable adult to die or suffer serious physical harm.
b) Section 44 of the Mental Capacity Act 2005 which makes it an
offence if someone ill-treats or willfully neglects another.
c) The general terms of the Fraud Act 2006, which makes it an
offence to commit fraud by false representation, by failing to
disclose information, or by abuse of position.
Analysis:
The issue relates to circumstances in which a referral to adult safeguarding
contains concerns expressed by someone, but where those concerns lack
firm evidence (hence the need for access to investigate and establish the
facts). There would therefore be insufficient evidence at that point to pursue
prosecutions under any of the three Acts identified in (a), (b) or (c).
Consequently, s17 could not apply to the extent that there is established
evidence that an indictable crime has been committed etc.
However, the use of PACE could be based upon s24 of that Act, whereby the
police officer had reasonable grounds for suspecting that someone was about
to commit an offence; or is actually committing such an offence. But Code G
of PACE places conditions on such ‘reasonable grounds’:
‘There must be some reasonable, objective grounds for the suspicion,
based on known facts or information which are relevant to the likelihood
the offence has been committed and the person to be questioned
committed it.’ 3
In the circumstances it seems unlikely that uncorroborated anxiety or concern
by, for example, a next door neighbour would meet such a criterion or be a
legal justification for enforced entry.
In the example provided by the Department of Health to justify the use of
s17 an anonymous referral had been received that a vulnerable woman
had been taken into a shed and made to stand on a chair with a rope
3 Police and Criminal Evidence Act 1984 Code G
________________________________________________________________ 4 ANALYSIS OF THE LAW around her neck by her brother. A police officer had visited and witnessed
the woman in the shed with her brother (in December with an ambient
temperature of -3). In such circumstances, where a police officer had
witnessed such a situation (albeit had not witnessed the original
allegations), it was decided that this met the criteria for enforced entry.
However, such an example does not reflect the circumstances identified
in section A above.
Of the three Acts identified by the DH as including relevant indictable
offences, the second one (relating to the Mental Capacity Act 2005) would not
be applicable to the scenarios under consideration, as we are considering
people who have full and unimpaired legal capacity.
The example provided by the Department of Health in relation to the
Domestic Violence Crimes and Victims Act 2004 actually predated the
Act, and was the case that prompted the introduction of section 5.
However, in the case of Margaret Panting, once she had moved in with
her son-in-law she became ‘lost’ and the circumstances of her torture and
death became apparent only after the event. Consequently, such an
example does not reflect the circumstances identified in section A above.
2. The use of PACE Section 17(1)(e) provides the Police with the power
to enter premises for the purposes of “saving life or limb or preventing
serious damage to property”.
Analysis:
While this seems straightforward at face value there are two relevant cases
that have a restricting influence on the circumstances in which police officers
can use this clause to effect entry. Fundamentally, these cases raise the
threshold for what can be considered ‘life or limb’ justification for enforced
entry, and make clear that general welfare concerns are insufficient.
The first case4 addressed the argument that a concern for the welfare of
someone within premises was sufficient grounds to justify entry. It concluded
that
‘concern for welfare is not sufficient to justify an entry within the terms of
section 17(1)(e). It is altogether too low a test’.
The judge concluded:
‘I appreciate and have some sympathy with the problems that face
police officers in a situation such as was faced by these officers. In a
sense they are damned if they do and damned if they do not, because if
in fact something serious had happened, or was about to happen, and
4 Syed v Director of Public Prosecutions [2010] EWHC 81 (Admin); [2010] 1 Cr. App. R. 34 ________________________________________________________
ANALYSIS OF THE LAW 5 they did not do anything about it because they took the view that they
had no right of entry, no doubt there would have been a degree of ex
post facto criticism. But it is important to bear in mind that Parliament
set the threshold at the height indicated by section 17(1)(e) because it is
a serious matter for a citizen to have his house entered against his will
and by force by police officers. Parliament having set that level, it is
important that it be met in any particular case.’
The second case5 concluded that ‘life and limb’ considerations must relate to
serious matters, not a general or low level concern. The Court indicated a
view that
‘the expression "saving life or limb" is a colourful, slightly outmoded
expression’
and that,
‘regarding section 17(1)(e) of the 1984 Act (PACE), Parliament had
intended that the word "serious" in the phrase "preventing serious
damage to property" should also apply to the adjoining phrase "saving
life or limb". They gave examples of serious matters - eg apprehended
knife injuries and gunshot injuries.’
Consequently, the use of s 17(1)(e) would be problematic, if not impossible, in
circumstances in which the concerns expressed in the original adult
safeguarding referral lack firm evidence. It would be dependent upon the
degree to which it could be argued that the information available gave
‘reasonable, objective grounds’ and indicated a serious risk to life and limb.
3. The Court of Protection – for those who may lack capacity
Analysis:
The Court of Protection may have a role if it could be argued that there were
questions/uncertainties about whether the alleged victim had capacity and
where adult safeguarding staff were being denied entry to assess. The Court
could in principle become involved in such a case if it were persuaded that
there was sufficient evidence to cross the low threshold set in the case-law6
and so grant injunctions to enable a proper capacity assessment.
However, in the situations covered by the proposed amendment it would, by
definition, be most unlikely that there would be proper grounds to assert
incapacity.
5 Baker v Crown Prosecution Service 2009] EWHC 299 (Admin).
6
Re F [2010] 2 F.L.R. 28
________________________________________________________________ 6 ANALYSIS OF THE LAW 4. The Inherent Jurisdiction of the High Court
Analysis:
This can often be a time consuming, slow and costly option, although the High
Court can move very quickly if the circumstances justify it. To date, it has
been a rarely used option and may be even less so as council budgets are
stretched, because it is generally considered too expensive. Both ADASS and
the LGA agree that
‘ inherent jurisdiction can be expensive and slow.’7
They argue that decisions to approach the High Court are
‘not impacted by budget considerations where safety and wellbeing are
critical issues’
but this may be more of an aspirational statement than one of fact, in
particular where, as set out below, the precise scope of the relief that might be
available is unclear.
The Courts have been vague about the scope of the relief available under the
inherent jurisdiction, making it difficult to predict exactly what relief will be
available. In the case quoted by the DH in their guide to the Law,8 (Re DL9)
the court held that the MCA 2005 had not ousted the High Court’s inherent
jurisdiction to grant relief in respect of vulnerable adults in need of the ‘great
safety net’ provided by the jurisdiction. It therefore confirmed that the High
Court could, in principle, make orders under the inherent jurisdiction aimed at
controlling the conduct of the son in question, and it dismissed the son’s
appeal against the previous decision of Mrs Justice Theis.
Importantly, however, Mrs Justice Theis in her original judgment was not
considering what orders to make against the son, but rather a preliminary
issue as to whether the court had any jurisdiction at all to make orders of any
kind given that both parents had the relevant decision-making capacity. Mrs
Justice Theis, moreover, did not consider the terms of the interim orders that
had been made initially by Sir Nicholas Wall, the then-President of the Court
of Protection, at a hearing at which the son was not represented. Rather, she
noted that:
“the terms of the orders being sought in this case are likely to require
very careful scrutiny.”10
There is no reported decision in which those orders were, in fact, the subject
7
ADASS/LGA Briefing in relation to questions on proposed new powers of entry amendment
Annex A Existing Powers – Final; Department of Health, 3 February 2014
9
L (Vulnerable Adults with Capacity: Court's Jurisdiction), Re [2012] EWCA Civ 253 [2013]
Fam. 1
10
Paragraph 53(8).
8
________________________________________________________
ANALYSIS OF THE LAW 7 of such scrutiny and it is therefore unclear which of the wide-ranging interim
orders that had been made at the outset of the case would actually be made
in a hearing at which a Third Party was seeking to resist the ‘intrusion’ of
social services being authorised by the High Court.
It is, finally, important to note that, because the inherent jurisdiction of the
High Court can only be exercised by a judge of the High Court, the pool of
judges able to deploy this jurisdiction is very much smaller than the pool of
judges who can exercise the jurisdiction of the Court of Protection. This
needs to be borne in mind if the use of Inherent Jurisdiction by the High Court
was to be promoted as the means by which entry could be effected.
D. Are there other legal options not suggested by the Department of
Health?
It might be argued that, if the police reasonably believed that a breach of the
peace was being committed, or was about to be committed, on private
property, the police could enter the property without a warrant in order to stop
or prevent the breach.
The Court of Appeal has defined a breach of the peace as being:
‘an act done or threatened to be done which either actually harms a
person, or in his presence, his property, or is likely to cause such
harm being done.’11
The only immediate sanction that can be imposed by a court for breach of the
peace is to bind over the offender to keep the peace: that is, justices of the
peace can require a person to enter into a recognisance to keep the peace.
Analysis
To justify an arrest the threat of a breach of the peace or renewal must be
both real and imminent.12 The Metropolitan Police have noted that
‘There has been an increase in civil claims by persons arrested to
prevent a breach of the peace (BoP). Frontline officers are on many
occasions facing difficult situations and are using this power
particularly as part of taking positive action at a domestic incident.
To support officers we want to be in a position to fight these many
unjustified claims. However we will and have been forced to settle
claims because we have failed to justify our use of BoP’. 13
11
R v Howell [2007] All ER (D) 79 (Jan).
Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705.
13
http://www.met.police.uk/foi/pdfs/disclosure_2011/august/2011080001064.pdf
12
________________________________________________________________ 8 ANALYSIS OF THE LAW There are four basic requirements that would need to be met in order to
exercise the now exceptional common law power of arrest in such
circumstances14:
1.
2.
3.
4.
Only a sufficiently real and present threat to the peace justified
depriving a citizen, not at the time acting unlawfully, of his
liberty:15
The threat must come from the person to be arrested;16
The conduct must clearly interfere with the rights of others and
its natural consequence must be "not wholly unreasonable
violence" from a third party:11 and
The conduct of the person to be arrested must be unreasonable:
17
In the circumstances it seems unlikely that uncorroborated anxiety or concern
by, for example, a next door neighbour would meet such a criteria or be legal
justification for enforced entry under Breach of the Peace.
Context of this analysis:
During the debate in Parliament on 4th February 2014 the Minister for Social
Care, Norman Lamb MP, summarised his conclusions in relation to the
current law. This was following opinions previously provided to him by the
Association of Chief Police Officers (ACPO) and the Association of Directors
of Adult Social Services (ADASS), as well as by civil servants within the
Department of Health. He said18,
‘Having reviewed the proposal and considered powers of entry in
general I am satisfied that the police already have sufficient powers of
entry to protect people from harm. Powers of entry are provided to us
under both common law and PACE and I am satisfied that these would
afford us access to premises where vulnerable individuals are
considered to be at risk. We are, then, talking about not only the inherent
jurisdiction of the High Court but the powers under the Police and
Criminal Evidence Act 1984. Action on Elder Abuse talked about the
need to interview people
“being imprisoned in their own homes by their abusers.”
That is precisely the sort of situation for which powers are available
under PACE to take necessary action where appropriate’.
14
Bibby v Chief Constable of Essex (2000) 164 JP 297.
Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705
16
Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789.
17
Nicol and Selvanayagam v Director of Public Prosecutions (1996) 160 JP 155
18
th
Hansard 4 February 2014.
15
________________________________________________________
ANALYSIS OF THE LAW 9 This opinion mirrored the view expressed by ACPO in an undated letter to the
Minister prior to the debate19:
‘Having reviewed the proposal and considered powers of entry in
general I am satisfied that the Police already have sufficient powers of
entry to protect people from harm… Powers of entry are provided to us
under both common law and PACE and I am satisfied that these would
afford us access to premises where vulnerable individuals are
considered to be at risk.’
In this context, it is worth noting that ACPO have significantly changed their
position on powers of entry, since their submission to the No Secrets Review
in 2009, when they said20,
‘At present police officers may enter premises under section 17 of PACE
or using certain common law powers. However, it is difficult to suggest
that all cases of abuse amount to a risk to life and limb.
Responses (from police forces) are split with some respondents
suggesting that current police powers are adequate and are made good
use of to protect both adults and children. Others say that new powers
are needed for police and relevant others to enter premises to
investigate safeguarding concerns and be confident of their legal status
when doing so. This would be useful in cases where there are
reasonable grounds to suspect that a vulnerable adult is/has been
subjected to physical or sexual abuse or neglect and it is necessary to
enter the premises to check on the condition of the individual other than
physical abuse is suspected. Some support for the ability for any
professional to apply for a warrant to enter a premises to ensure the
welfare of a person believed to be subject to abuse. This power could be
valuable where there is reason to suspect that the adult is being
prevented from speaking to the agency by the perpetrator(s) or access is
being denied.’
ADASS have also changed their position and have stated in a briefing paper
jointly produced by the Local Government Association and ADASS that new
powers are unnecessary:21
‘We believe that existing powers are available but not fully utilised. We
recognise that this is a development area for partners in the
safeguarding field and have alerted our members and encouraged them
to re-focus their training of specialist staff’.
However, their seven-point strategy to strengthen the law in 2007 called for
powers for social workers to enter domestic properties in cases of suspected
19
Undated letter from Ian Pilling Assistant Chief Constable to the Minister
ACPO No Secrets Review Summary of Police Responses, 2009
21
LGA ADASS Safeguarding Network response to Care Bill amendments 17.9.1013 20
________________________________________________________________ 10 ANALYSIS OF THE LAW abuse, and their submission in 2009 to the No Secrets consultation22 similarly
stated that,
‘The power of entry in certain circumstances is also welcome’.
It is worth noting that the law has not changed since both ACPO and ADASS
made their original statements (in 2007 and 2009) on these matters.
Conclusions:
While there is no doubt that there are circumstances in which existing powers
of entry are appropriate and applicable, this is not the case where concerns
are expressed about the potential abuse or neglect of an adult who may be in
a vulnerable situation, but where there is insufficient evidence to be satisfied
that a crime has, or is about to be, committed. Such circumstances require
proper investigation in order to ascertain the facts and the views of the alleged
victim, and this requires access to that individual and the opportunity to
interview them alone. The analysis of current law provided in this document
indicates that the law at present is insufficient to protect such people from
harm.
In that context it is worth noting that such a new power would be used rarely
(46% of respondents to a College of Social Work survey indicated that they
would have used such a power 1-5 times in the last three years). It would not
be a casual option available to adult safeguarding staff as it could only be
accessed through application to the court (albeit a lower court than that
considering Inherent Jurisdiction), and this is borne out by the experience in
Scotland where it has been an option of last resort.
Finally, we are aware of the concern as to what happens when, having gained
access, the staff leave and potentially the vulnerable person is at risk from
their abuser. The Minister, in the debate on 4th February articulated this
concern,
‘What happens when the people exercising that power then leave? They
leave the vulnerable person at potential risk from their abuser. That is
precisely what ADASS has said, and it is a real concern for me. There is
a balance of risks’.
However, there are options to address this.
Depending upon the circumstances, it may be possible for a local authority to:
(1) support the vulnerable adult to apply for an injunction under s3
Protection from Harassment Act 1997; or a non-molestation order or an
occupation order under the relevant provisions of the Family Law Act
22 Response from the Association of Directors of Adult Social Services to the consultation on
the review of the No Secrets Guidance
________________________________________________________
ANALYSIS OF THE LAW 11 1996;23
(2) itself apply for an anti-social behaviour order (under the Crime and
Disorder Act 1998)24 or an anti-social behaviour injunction (under the
Housing Act 1996);25 or
(3) itself apply for an injunction under the inherent jurisdiction.
In relation to either the second or third of these options, it is self-evident that
the local authority would be in a stronger position to bring such an application
if its social workers have themselves had the opportunity to gain access to the
property and to the vulnerable adult.
Depending upon the circumstances, it may also be possible, as of March
2014,26 for the local authority to coordinate with the relevant police force for a
police officer of the rank of superintendent or above to issue a Domestic
Violence Protection Notices (DVPN) under s.24 Crime and Security Act
2010. 27 A DVPN can be issued to a person over 18 if that officer has
reasonable grounds for believing that the person “has been violent towards, or
has threatened violence towards, an associated person28” and that the DVPN
is necessary to protect that person from violence or a threat of violence. Such
a notice can be issued even if the vulnerable adult does not agree.
The DVPN prohibits the suspected perpetrator from molesting the victim and,
where they cohabit, may require the suspected perpetrator to leave those
premises. The issue of a DVPN triggers an application for a Domestic
Violence Protection Order (DVPO). 29 This is a court order (issued by the
magistrates’ court) lasting between 14 and 28 days, which prohibits the
perpetrator from molesting the victim and may also make provision about
access to shared accommodation. The magistrates’ court must hear the
application within 48 hours to limit the length of time for which the suspected
perpetrator can be excluded from his home without the chance to defend
himself.
Again, it will self-evidently be easier for the DVPN and, in turn, a DVPO
23
Nb, were s.60 Family Law Act 1996 to be brought into force, it would be possible for – inter
alia – a local authority to bring an application for either a non-molestation order or an
occupation order on behalf of the vulnerable adult.
24
If the Third Party is not in the same household as the vulnerable adult.
25
If the local authority is the landlord.
26
Written statement of the Home Secretary, HC Deb 25 November 2013 c6WMS announcing
the roll-out of the domestic violence protection order scheme across England and Wales from
March 2014. As at the point of drafting this briefing note, it does not appear that the relevant
commencement order has yet been laid before Parliament.
27
See https://www.gov.uk/domestic-violence-and-abuse#domestic-violence-protectionnotices-and-orders.
28
I.e. a person falling within the categories of associated person defined by s.62 Family Law
Act 1996, which includes children, spouses, cohabitants, members of the same household
(otherwise merely by reason of one of them being the other's employee, tenant, lodger or
boarder)
29
By operation of s.27 CSA 2010.
________________________________________________________________ 12 ANALYSIS OF THE LAW process to be initiated on the basis of direct evidence from social workers as
to the circumstances of the vulnerable adult.
For the avoidance of doubt, whilst the DVPN/DVPO framework will add
another tool that can be deployed, it would not cover all the situations in which
the issue posed at the outset of this briefing note would arise – in particular, it
would not cover the not uncommon position where the Third Party in question
is, for instance, a lodger.
One of the cornerstones of social work practice relies upon the deployment of
key skills that include relationship building and negotiation within complex
family and interpersonal dynamics. This involves working with, enabling and
empowering vulnerable adults to live lives free from abuse. We believe that
the social work profession already applies such skills where the abuser may
have agreed to access but remains hostile to any intervention. This is an
ongoing reality of adult safeguarding and not something unique to enforced
access. To quote a Scottish member of Action on Elder Abuse, commenting
upon the power of entry contained in the Adult Support and Protection
(Scotland) Act 2007:
‘People generally accept on the basis of persuasion and the authority
given by the Act.’
________________________________________________________
ANALYSIS OF THE LAW 13 Authors:
Gary FitzGerald
Chief Executive, Action on Elder Abuse since 2002
M.A. Social Policy and Administration (distinction); D.Sc (h.c).
Gary has been with Action on Elder Abuse (AEA) since 2001 and was
appointed Chief Executive on 2 April 2002. Gary worked for over 20 years
within Local Government Social Care provision focusing on all aspects of care
of older people. He is from an Irish background and has a special interest in
equality and social inclusion issues in relation to aspects of abuse. He has
spoken in the United Kingdom, Ireland and America on elder abuse, and
regularly contributes to radio and television programmes. He is a trustee of
The Silver Line helpline for older people experiencing loneliness. In 2012
Gary was awarded an honorary doctorate by Northumbria University for his
work on elder abuse, and received the award for ‘outstanding contribution to
social care’ by the prestigious British Care Awards.
Alex Ruck Keene
Barrister,
39 Essex Street Chambers
Alex is recommended as a Band 1 Practitioner for Court of Protection work by
Chambers and Partners, and has been called a “leading light in mental
capacity work” by the Legal 500. He also writes extensively upon matters
relating to the MCA 2005, contributing to the annual ‘Court of Protection
Practice’ (Jordans), the second edition of ‘Mental Capacity: Law and Practice’
(Jordans 2012) and the third edition of ‘Assessment of Mental Capacity’ (Law
Society/BMA 2009). ________________________________________________________________ 14 ANALYSIS OF THE LAW