Local Government - May 2009
Mental Health Update
A vulnerable point
The Department of Health is reviewing its 2000 adult
protection guidance ‘Safeguarding Adults’, Department of Health and
Home Office, October 2008). At the moment, the guidance – and the
safeguards to which it gives access – relates solely to
‘vulnerable’ adults. But what does that mean?
How is vulnerability
defined?
The notion of vulnerability precedes the adult
protection guidance. It is used in the Care Standards Act 2000, for
example, and also at the heart of the special measures available to
certain witnesses in criminal proceedings (Youth Justice and
Criminal Evidence Act 1999, s.16).
The guidance of 2000 is contained in the ‘No
Secrets’ document (‘No Secrets: Guidance on Developing and
Implementing Multi-agency Policies and Procedures to Protect
Vulnerable Adults from Abuse’, Department of Health and Home
Office, 2000). It says that a vulnerable adult is “one who needs
community care services because of disability, age or illness; and
who cannot take care of himself, or protect himself against
significant harm or exploitation”. Such a person might expect to be
protected by a comprehensive ‘inter-agency’ framework. There
is concern, however, that this framework is more restricted than it
should be, and that the problem is one of definition.
The House of Commons Health Committee, for
example, says ‘No Secrets’ should not be confined to people
requiring community care services, and that it should also apply to
old people living in their own homes without professional support
and anyone who can take care of themselves (‘Elder Abuse’, House of
Commons Health Committee, 2007, Second Report of the Session
2003-04, Volume 1, HC 111-I, paras 8 & 14).
This echoes the Association of Directors of
Adult Social Services (ADASS), which has argued that vulnerability’
“seems to locate the cause of abuse with the victim, rather than
placing responsibility with the acts or omissions of others”
(‘Safeguarding Adults: A National Framework of Standards’, ADASS,
2005, p.5).
As the new consultation document notes, there
is “a broad belief that the definition does need revision, but no
clear agreement on how this revision may take place” (Department of
Health and Home Office, October 2008, op. cit., chapter 9) and the
Law Commission has recently weighed into the debate. As part of a
much wider review of adult social care law, it says it wants to
look for itself at the notion of vulnerability (‘Adult Social Care:
Scoping Report’, Law Commission, November 2008, paras
4.280-4.293).
Alternatives
So, what are the alternatives? The Law
Commission speaks favourably of the Safeguarding Vulnerable Groups
Act 2006, which, it says, understands vulnerability “purely through
the situation an adult is placed [in]” (Law Commission, 2008, op.
cit., para.4.290). Some have argued, however, that it would
be better to abandon the notion of vulnerability and instead, seek
to protect people who are simply ‘at risk’.
That, certainly, is the purpose of legislation
recently enacted in Scotland. The Adult Support and Protection
(Scotland) Act 2007 covers people who “(1) are unable to safeguard
their own well-being, property, rights or other interests; (2) are
at risk of harm; and (3) because they are affected by disability,
mental disorder, illness or physical or mental infirmity, are more
vulnerable to being harmed than adults who are not so
affected.”
ADASS, too, supports the use of risk as the
keystone of adult protection, although its
definition differs from the one used in
Scotland. It says an adult at risk is one “who is or may be
eligible for community care services” and whose independence and
wellbeing are at risk due to abuse or neglect (ADASS, 2005,
op. cit.). This reference to community care need not fall foul of
the Commons Health Committee, however, for ADASS says it includes
“those people who are assessed as being able to purchase all or
part of their community care services but whose need – in relation
to safeguarding – is for access to mainstream services such
as the police”.
It remains to be seen what the adult
protection review will yield, and which notion the Government will
choose. But its task might be even more important than the
consultation document suggests.
The stakes
With the coming of the Mental Capacity Act
2005 and the creation of a new Court of Protection, the High Court
has lost the work it used to do with incapable people.
Recently, however – and perhaps not coincidentally - it has set
about transforming its inherent jurisdiction so as to offer
protection to what it calls ”vulnerable adults”. It proposes
nothing less than the regulation of “everything that conduces to
[their] welfare and happiness” (Re SA (Vulnerable adult with
capacity: Marriage) [2006] 1 FLR 867).
Adult protection is too important a task to be
scuppered by questions of nomenclature. Everyone concerned
needs to know precisely when the safeguards will kick in; when, it
seems, an adult will be “vulnerable”. And the apparent
willingness of the High Court to supplement the ‘No
Secrets’ guidance with real, enforceable rights means that as
far as such people are concerned, the stakes have never been
higher.
Enticing someone into a public place
Where a person who is in a public place
appears to be suffering from mental disorder, section 136 of the
Mental Health Act 1983 allows him to be arrested by a police
constable and detained for up to 72 hours in a place of safety,
such as a police station or a hospital.
It has been established that this power can be
used in places such as a public highway, a pub car park (at least
during opening hours) or the communal parts of a block of flats.
But there are concerns that in order to use it, some police
constables have enticed people into public places.
The Mental Health Act Commission, for example, suggests this might
have been the prelude to as many as 30 per cent of section 136
cases (MHAC, 2008, Risk, Rights, Recovery: Twelfth Biennial Report,
2005-2007, paragraph 4.63).
The practice is commonly thought to be
unlawful. In Seal v Chief Constable of South Wales
Police [2007] UKHL 31; [2007] 4 All ER 177, for example,
constables were alleged to have arrested a man for breach of the
peace in his own home, and to have then detained him under
section136 “as a result of what happened in the street”
outside. Baroness Hale wondered how, in either circumstance,
the man could be said to have been found in a public
place.
But this might not be the whole story. In the
more recent case of McMillan v Crown Prosecution
Service [2008] EWHC (Admin) 1457, a police officer
was held to have acted lawfully where he arrested a woman for being
drunk and disorderly in a public place, having physically escorted
her from her own garden. The High Court noted that, at first
instance, the magistrates found that the constable had been
attempting to reach a negotiated conclusion that would have been in
the woman’s own interests, and that they had rejected the
suggestion that he did what he did so as to justify an arrest for
an offence that could only be committed in a public place. The High
Court said he could properly be said to have acted in conformity
with generally acceptable standards of conduct.
David
Hewitt
Weightmans LLP