New Clause 30 - Adult safeguarding access order

Care Bill [Lords] – in a Public Bill Committee at 11:15 am on 4 February 2014.

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‘(1) An authorised officer may apply to a Circuit Judge authorised by the Court of Protection for an order (an adult safeguarding access order) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect;

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse;

(c) to enable the authorised officer to ascertain whether that person is making decisions freely; and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 42(2) on what, if any, action should be taken.

(3) While an adult safeguarding access order is in force, the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The authorised Circuit Judge may make an adult safeguarding access order if satisfied that—

(a) all reasonable and practicable steps have been taken to obtain access to a person suspected of being an adult at risk of abuse or neglect before seeking an order under this section;

(b) a notice has been served on any relevant third party who the authorised officer has reasonable cause to suspect is preventing access to allow enquiries to be made under section 42 and for the purposes set out in subsection (2);

(c) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect;

(d) the authorised officer has reasonable cause to suspect that a person is unable to make decisions freely;

(e) it is necessary for the authorised officer to gain access to the person in order to make the enquiries needed to inform the decision required by section 42(2) on what, if any, action should be taken;

(f) making an order is necessary in order to fulfil the purposes set out in subsection (2); and

(g) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates;

(b) provide that the authorised officer shall be accompanied by a constable; and

(c) specify the period for which the order is to be in force.

(6) An adult safeguarding access order may attach other conditions, including—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised;

(b) providing for the authorised officer to be accompanied by another specified person;

(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse; or

(d) such other conditions as the authorised circuit judge deems it necessary to attach.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order the authorised officer must—

(a) state the object of the visit;

(b) produce evidence of the authorisation to enter the premises; and

(c) provide an explanation to the occupier of the premises of how to complain about—

(i) the decision to apply for an order; and

(ii) how the order has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section.

(10) Regulations may set restrictions on the persons or categories of persons who may be authorised.

(11) Subsections (2)(c) and (4)(d) refer to a person under constraint; or subject to coercion or undue influence; or for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.’.—(Paul Burstow.)

Brought up, and read the First time.

Photo of Paul Burstow Paul Burstow Liberal Democrat, Sutton and Cheam

I beg to move, That the clause be read a Second time.

Sadly, I will have to be brief. I want to return to an issue, which I hope will not try the patience of the Minister or the Committee. However, I feel very strongly about it, as do a number of people outside this Committee.

New clause 30 is about creating a statutory power for the courts to authorise local authorities to exercise a power of entry with a police constable in a set of circumstances that are described and prescribed in the new clause. Since we discussed this issue when we debated new clause 3 in our seventh sitting on 21 January, I have given a lot of thought to what the Minister had to say. There is not a lot of time to give full reflection of that, so I suspect that we may come back to this issue on Report; at least, I will attempt to come back to it on Report.

What I have tried to do since that sitting on 21 January is to take on board what the Minister has said, particularly his references to the submission made by Mind. I have taken that submission incredibly seriously and I have had some very constructive dialogue with Mind on these issues; I am grateful to Paul Farmer and his colleagues for giving me their time. However, I will not pretend that I have won over Mind to my view or that of the majority of respondents to the Department’s consultation. Nevertheless, it is true to say that Mind’s view now is more nuanced than it perhaps was in its original response to the consultation.

New clause 30 attempts to address a number of Mind’s concerns. In particular, it would make it clearer that this power relates to circumstances where a third party is preventing access and in some way compromising a person’s autonomy; in other words, their ability to exercise their will freely. I will dwell on that point,  because it is the heart of this debate about whether we should have a provision. It is also about the voice that matters most in a debate such as this one, which is the voice we do not hear at all: the voice of those trapped in abusive relationships, and of those abused or neglected by their family or friends—that is, by the people they trust most.

The Department’s own prevalence study found 370,000 people were victims of abuse in the community; to count in those figures somebody had to be the victim of multiple incidents of abuse and also not have dementia. In its disability-related harassment inquiry, which I think is worth reading, the Equality and Human Rights Commission points out a number of issues that go to the heart of why a power of entry is necessary.

We need to consider elder abuse, domestic violence and child protection issues. We are still 10 to 15 years behind where we need to be on these matters. As a result, we are still institutionally blind to them and downplay them too much. I fear that that is reflected in some of the responses to the consultation from some of the organisations involved.

My new clause seeks to take on board a number of the comments the Minister has made; it would require an application to a circuit judge authorised by the Court of Protection and add 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, something about which Mind was very concerned, and would expand the requirements about the notification of complaints procedures.

There is much more I would like to say, but I appreciate the pressures on time. I hope the Minister will continue to give thought to this matter, because I believe that relying simply on inherent jurisdiction is a flawed approach that leaves us open to the charge of failing to address the matter in the way that is needed.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

My right hon. Friend has been assiduous in pursuing this issue. We all agree about the absolute importance of protecting people who are vulnerable and may be at risk of exploitation. The only thing on which we do not agree is the ultimate solution and whether a new power is required. Although I completely share his view that the thinking on the abuse of vulnerable adults is a long way behind our thinking on abuse of children, we must remember that different issues are in play. Adults with capacity have rights and the state must intervene on those rights with great care or else we will have serious unintended consequences.

In the time available, let me quote from three organisations. First, the Association of Chief Police Officers has said that

“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. The hon. Member for Sheffield, Heeley, in a very informed speech, discussed the need to have something in the back pocket when negotiating entry. The powers are there in those circumstances.

In its press release responding to the new clause tabled by my right hon. Friend the Member for Sutton and Cheam, 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.

ADASS itself, which represents the directors of social services, has said that

“we have no evidence that the proposed powers of entry would add significantly to the range of tools currently available to practitioners, rather we are concerned that this would encourage a coercive rather than negotiated approach to complex and difficult situations, and”— this next point is incredibly important—

“increase risk of harm or abuse. Any such power would not assist the complex next steps in assuring and supporting individuals, who have capacity, to stay safe.”

Scotland has the whole caboodle, as its Government have introduced not only a power of entry but a power of removal of the person at risk. New clause 30 seeks to introduce only a power of entry. 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. I urge hon. Members and my right hon. Friend to recognise that this is a difficult judgment and that there are risks in proceeding.

Photo of Paul Burstow Paul Burstow Liberal Democrat, Sutton and Cheam

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.