BRIEFING PAPER ON THE NEED FOR A NEW POWER OF ACCESS IN DEFINED CIRCUMSTANCES

Transcription

1 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

2 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: 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

3 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 4 th February Annex A Existing Powers Final; Department of Health, 3 February 2014 ANALYSIS OF THE LAW 3

4 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

5 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 case 4 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

6 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 case 5 concluded that life and limb considerations must relate to serious matters, not a general or low level concern. The Court indicated a view that and that, the expression "saving life or limb" is a colourful, slightly outmoded expression 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-law 6 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 ANALYSIS OF THE LAW

7 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 DL 9 ) 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 8 Annex A Existing Powers Final; Department of Health, 3 February L (Vulnerable Adults with Capacity: Court's Jurisdiction), Re [2012] EWCA Civ 253 [2013] Fam Paragraph 53(8). ANALYSIS OF THE LAW 7

8 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 R v Howell [2007] All ER (D) 79 (Jan). 12 Foulkes v Chief Constable of Merseyside [1998] 3 All ER ANALYSIS OF THE LAW

9 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 circumstances 14 : 1. Only a sufficiently real and present threat to the peace justified depriving a citizen, not at the time acting unlawfully, of his liberty: The threat must come from the person to be arrested; 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 4. 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 4 th 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 said 18, 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 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 Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER Redmond-Bate v Director of Public Prosecutions (1999) 163 JP Nicol and Selvanayagam v Director of Public Prosecutions (1996) 160 JP Hansard 4 th February ANALYSIS OF THE LAW 9

10 This opinion mirrored the view expressed by ACPO in an undated letter to the Minister prior to the debate 19 : 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 said 20, 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 20 ACPO No Secrets Review Summary of Police Responses, LGA ADASS Safeguarding Network response to Care Bill amendments ANALYSIS OF THE LAW

11 abuse, and their submission in 2009 to the No Secrets consultation 22 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 4 th 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

12 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 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 person 28 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 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 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 ANALYSIS OF THE LAW

13 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

14 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 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