Mental Health - September 2009
What is vulnerable?
That is likely to be one of the hot questions
of the next few months. It has been posed most recently by the
Department of Health, which is reviewing adult protection guidance
published in 2000 (Department of Health and Home Office, October
2008, Safeguarding Adults). At the moment, the guidance –
and the safeguards to which it gives access - relate solely to
‘vulnerable’ adults. But what does that mean?
Vulnerability
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, section
16).
The guidance of 2000 is contained in the
No secrets document. 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” (Department of Health and
Home Office, 2000, No Secrets: Guidance on Developing and
Implementing Multi-agency Policies and Procedures to Protect
Vulnerable Adults from Abuse). 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 (House of Commons Health
Committee, 2007, Elder Abuse, 2007, Second Report of the
Session 2003-04, Volume 1, HC 111-I, paragraphs 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” (ADASS, 2005, Safeguarding Adults: A
National Framework of Standards, page 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 (Law
Commission, November 2008, Adult Social Care: Scoping
Report, paragraphs 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, paragraph
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” (Ibid).
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).
Conclusion
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.
David Hewitt,
Partner
Weightmans LLP
david.hewitt@weightmans.com