Prevention Of Abuse To Vunerable Adults
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Published: Fri, 05 May 2017
In 1992 the Department of Health and the then, Social Services Inspectorate, in England, published the findings of a survey of two social services Departments in relation to abuse. This publication found there to be a lack of assessments in large numbers of ‘elder abuse’ cases and little evidence of inter-agency cooperation. The report recommended guidelines to assist social services in their work with older people (DH/SSI 1992).
During the 1990’s concerns had been raised throughout the UK regarding the abuse of vulnerable adults. The social services inspectorate published Confronting elder abuse (SSI 1992) and following this, practice guidelines No longer afraid (SSI 1993). ‘No longer afraid’ provided practice guidelines for responding to, what was acknowledged at that time, as ‘elder abuse’. It was aimed at professionals in England, Wales and Northern Ireland and emphasised clear expectations that policies should be multi-agency and also include ownership and operational responsibilities (Bennett et al 1997).
This guidance was issued under section 7 of the Local Authority Social Services Act 1970 and gives local authority Social Service departments a co-ordinating role in the development and implementation of local vulnerable adult policies and procedures.
In 2000, the department of Health published the guidance No Secrets. The purpose of No Secrets was aimed primarily at local authority social services departments, but also gave the local authority the lead in co-ordinating other agencies i.e. police, NHS, housing providers (DOH 2000).
The guidance does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation (No Secrets, 2000)
The aim of No Secrets was to provide a coherent framework for all responsible organisations to devise a clear policy for the protection of vulnerable adults at risk of abuse and to provide appropriate responses to concerns, anxieties and complaints of abuse /neglect (DOH 2000).
In December 2001, the Scottish Executive published Vulnerable Adults: Consultation Paper (2001 consultation) (Scottish Executive, 2001). This sought views on the extension of the vulnerable adult’s provisions to groups other than persons with mental disorder and the possible introduction of provisions to exclude persons living with a vulnerable adult, where the adult’s health is at risk.
A joint inquiry was conducted by the Social Work Services Inspectorate and the Mental Welfare Commission for Scotland. Both of these agencies were linked with the central government of Scotland who had responsibility for the oversight of social work services and care and treatment for persons with mental health problems.
In the report by the Scottish Executive (2004), a case of a woman who was admitted to a general hospital with multiple injuries from physical and sexual assault and who had a learning disability became the focus for change for Scotland in terms of adults who have been abused. The police investigation identified a catalogue of abuse and assaults ranging back weeks and possibly longer.
In June 2003 the Minister for Education and Young People, Peter Peacock MSP, asked the Social Work Services Inspectorate (SWSI) to carry out an inspection of the social work services provided to people with learning disabilities by Scottish Borders Council. At the same time, the Mental Welfare Commission for Scotland (MWC) also undertook an inquiry into the involvement of health services, though worked closely with SWSI during its inquiry. The two bodies produced separate reports, but also published a joint statement (MWC and SWSI, 2004), which summarised their findings and stated their recommendations. The findings included:
â€¢ a failure to investigate appropriately very serious allegations of abuse
â€¢ a lack of information-sharing and co-ordination within and between key agencies (social work, health, education, housing, police)
â€¢ a lack of risk assessment and failure to consider allegations of sexual abuse
a lack of understanding of the legislative framework for intervention and its capacity to provide protection
â€¢ a failure to consider statutory intervention at appropriate stages
The Adult Support and Protection (Scotland) Act 2007 (ASPA) is a result of the events that were known as the Scottish Borders Enquiry.
Following the various police investigations, it was identified that there were historical links between the client and the offenders who were later prosecuted in terms of statements held by social services department detailing the offender’s behaviour towards the woman and that this information was held on file.
The Scottish Executive (2004) described the case as “extremely disturbing but even more shocking to many that so many concerns about this woman had been made known and not acted on”. As a consequence, 42 recommendations from the inquiry were made and there was a specific recommendation which was taken to the Scottish Executive and involved the provision of comprehensive adult protection legislation as a matter of urgency as there had been concerns raised from political groups and high profile enquiries to provide statute for the protection of adults at risk of abuse in Scotland (Mackay 2008).
The Scottish framework links with three pieces of legislation. In 2000, the Adults with Incapacity (Scotland) Act [AWISA 2000] was passed and focused on protecting those without capacity with financial and welfare interventions for those unable to make a decisions.
Second, the Mental Health (Care and Treatment) (Scotland) Act (2003) [MHSA (2003)] modernised the way in which care and treatment could be delivered both in hospital and the community and improved patients’ rights.
Finally, the Adult Support and Protection (Scotland) Act (2007) [ASPSA (2007)] widened the range of community care service user groups who could be subject to assessment, and mainly short-term intervention, if they were deemed to be adults at risk of harm.
Mackay (2008) argues that the Scottish arrangements both mirror and differ from those of England and Wales. She maps out the intervention powers for adults at ‘risk of harm’ into a type of hierarchical structure known as a ‘pyramid of intervention’ which aims to reflect the framework of the various pieces of Scottish legislation and goes onto say that the principle underlying all of the legislation is “minimum intervention to achieve the desired outcome”.
Critique of definitions.
In England, the No Secrets (2000) guidance defines a vulnerable adult as ‘a person aged 18 or over’ and ‘who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation’ (DOH 2000 Section 2.3)
The groups of adults targeted by ‘No Secrets’ were those “who is or may be eligible for community care services”. And within that group, those who “were unable to protect themselves from significant harm” were referred to as “vulnerable adults”. Whilst the phrase “vulnerable adults” names the high prevalence of abuse experienced by the group, there is a ‘recognition that this definition is contentious.’ ADSS (2005).
The definition of a vulnerable adult referred to in the 1997 consultation paper “Who Decides” issued by the Lord Chancellors Department is a person: “who is, or may be in need of Community Care Services by reason of mental or other disability, age or illness: and who Is, or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation” (Law Commission Report
There are however broader definitions of vulnerability which are used in different guidance and in the more recent Crime and Disorder Act (1998) it refers to ‘vulnerable sections of the community and embraces ethnic minority communities and people rendered vulnerable by social exclusion and poverty’ rather than service led definitions.
There is concern, however, that the current England framework is more restricted than it should be, and that the problem is one of definition.
The House of Commons Health Committee, says that 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).
Even within the ADASS National Framework (2005) it has been 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)
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). It is now becoming questionable whether the term ‘vulnerable’ be replaced with the term ‘at risk’.
If we were to look at the current legislation in England surrounding the investigations of abuse to adults, there are none, however there are underpinning pieces of legislation which whilst not in its entirety focus specifically on the adult abuse remit, but can be drawn upon to protect those most vulnerable. There are many duties underpinning investigations of adult abuse, but no specific legislation.
The NHS and Community Care Act 1990, section 47 assessments can be implemented in order to consider an adults need for services and can therefore consider any risk factors present at the time of the assessment. From this, assessment and commissioned services can support people who have been abused or can prevent abuse from occurring.
The National Assistance Act (1948) deals with the welfare of people with disabilities and states that the: ‘local authority shall make arrangements for promoting the welfare of person who…suffers from a mental disorder……who are substantially and permanently handicapped by illness, injury or congenital deformity or other disabilities’ and gives power to provide services arising out of an investigation out of the NHS & Community care Act 1990. (Mantell 2009).
The Fair Access to Care Services 2003 (FACS) recognises that community care services will be a vital aspect of adult protection work (Spencer- Lane, 2010). Interestingly the eligibility criteria that superseded Fair Access to Care from April 2010 (‘Prioritising Need in the context of Putting People First: A whole systems approach to eligibility for Social Care’), continues to place adults who are experiencing, or at risk of experiencing abuse or neglect, in Critical and substantial needs criteria banding, as FACS did.
Another definition of a vulnerable adult is cited within The Safeguarding Vulnerable Groups Act (2006), (SVG Act 2006), and defines a vulnerable adult as:
A person is a vulnerable adult if he has attained the age of 18 and:
(a)he is in residential accommodation,
(b)he is in sheltered housing,
(c)he receives domiciliary care,
(d)he receives any form of health care,
(e)he is detained in lawful custody,
(f)he is by virtue of an order of a court under supervision by a person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000 (c. 43),
(g)he receives a welfare service of a prescribed description,
(h)he receives any service or participates in any activity provided specifically for persons who fall within subsection (9),
(i)payments are made to him (or to another on his behalf) in pursuance of arrangements under section 57 of the Health and Social Care Act 2001 (c. 15), or
(j)he requires assistance in the conduct of his own affairs.
This particular act appears to take an alternative approach to the term ‘vulnerability.’ It refers to places where a person is placed and is situational. (Law Commission, 2008).
Following the consultation of No Secrets, one of the key findings of the consultation was the role that the National Health Service played in relation to Safeguarding Vulnerable adults and their systems. The Department of Health produced a document titled ‘Clinical Governance and Adult Safeguarding- An Integrated Process’ (DOH 2010). The aim of the guidance is to encourage organisations to develop processes and systems which focused on complaints, healthcare incidents and how these aspects fall within the remit of Safeguarding processes and to empower reporting of such as it identified that clinical governance systems did not formally recognise the need to ‘work in collaboration with Local Authorities when concerns arise during healthcare delivery.’ The definition of who is ‘vulnerable’ in this NHS guidance, refers to the Safeguarding Vulnerable Groups Act (2006) and states that ‘any adult receiving any form of healthcare is vulnerable’ and that there is ‘no formal definition of vulnerability within health care’ but those receiving healthcare ‘may be at greater risk from harm than others’ (DOH 2010).
In the Care Standards Act 2000 it describes a “Vulnerable adult” as:
(a) an adult to whom accommodation and nursing or personal care are provided in a care home;
(b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or
(c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body.
Similar to the Safeguarding Vulnerable Groups Act, the Care Standards Act 2000 classifies the term ‘vulnerable adult’ as situational and circumstantial rather than specific and relevant to a person’s individual circumstance.
Spencer-Lane (2010) says that these definitions of vulnerability in England have been the subject of increasing criticism. He states that the location of the cause of the abuse rests with the ‘victim’ rather than the acts of others; that vulnerability is an inherent characteristic of the person and that no recognition is given that it might be contextual, by setting or place that makes the person vulnerable.
Interestingly Spencer -Lane (2010) prefers the concept of ‘adults at risk’. He goes on to suggest a new definition that ‘adults at risk’ are based on two approaches as the Law Commission feel that the term vulnerable adults should be replaced by adults at risk to reflect these two concerns:
To reflect the person’s social care needs rather than the receipt of services or a particular diagnosis
What the person is at risk from – whether or not the term significant harm should be used – but would include ill treatment or the impairment of health or development or unlawful conduct which would include financial abuse
Spencer-Lane (2010) also argues that with the two approaches above, concerns remain regarding the term ‘significant harm’ as he feels the threshold for this type of risk is too high and whether the term in its entirety ‘at risk of harm’ be used whilst encompassing the following examples: ill treatment; impairment of health or development; unlawful conduct.
Unlike in Scotland, there are no specific statutory provisions for adult protection; the legal framework is provided through a combination of the common law, local authority guidance and general statute law (Spencer-Lane 2010).
Whereby in England the term ‘vulnerable adult’ is used, in Scotland the term in the Adult Support and Protection (Scotland) Act 2007 uses the term ‘adults at risk’. This term was derived by the Scottish Executive following their 2005 consultation were respondents criticised the word ‘vulnerable’ as they believed it focussed on a person disability rather than their abilities, hence the Scottish executive adopted the term ‘at risk’ (Payne, 2006).
Martin (2007) questions the definition of vulnerability and highlights how the vulnerability focus in England leaves the deficit with the adult, as opposed to their environment. She uses the parallel argument to that idea of ‘disabling environments’, rather than the disabled person, within the social model of disability. She goes on to comment that processes within society can create ‘vulnerability’. People, referred to as vulnerable adults, may well be in need of community care services to enjoy independence, but what makes people vulnerable is that way in which they are treated by society and those who support them. It could be argues that vulnerability and defining a person as vulnerable could be construed as being oppressive.
This act states that an ‘adult at risk’ is unable to safeguard their own well-being, property, rights or other interests; at risk of harm and more vulnerable because they have a disability, mental disorder, illness or physical or mental infirmity. It also details that the act applies to those over 16 years of age, where in England the term vulnerable adult is defined for those over the age of 18 and for the requirement under the statute is that all of the three elements are met for a person to be deemed ‘at risk’.
ADASS too supports the use of ‘risk’ as the basis of adult protection, although its definition differs from the one used in Scotland. It states that 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)
The ASPSA (2007) act
The Scottish Code of Practice states that ‘no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute “harm” to others can be physical (including neglect), emotional, financial, sexual or a combination of these. Also, what constitutes serious harm will be different for different persons’. (Scottish Government, 2008a p13).
In defining what constitutes significant harm, No Secret’s (2000) uses the definition of significant harm in who decides? No Secrets defines significant harm as:-
‘harm should be taken to include not only ill treatment (including sexual abuse and forms of ill treatment which are not physical), but also the impairment of, or an unavoidable deterioration in, physical or mental health; and the impairment of physical, intellectual, emotional, social or behavioural developments’ (No Secrets, 2000.
The ASPA (2007) act also goes onto detail that “any intervention in an individual’s affairs should provide benefit to the individual, and should be the least restrictive option of those that are available” thus providing a safety net on the principles of the act (ASPA, 2007).
The Adult Support and Protection (Scotland) Act 2007 says:
“harm” includes all harmful conduct and, in particular, includes:
conduct which causes physical harm;
conduct which causes psychological harm (e.g. by causing fear, alarm or distress)
unlawful conduct which appropriates or adversely affects property, rights or interests (e.g. theft, fraud, embezzlement or extortion)
conduct which causes self-harm
N.B – “conduct” includes neglect and other failures to act, which includes actions which are not planned or deliberate, but have harmful consequences
Interestingly the Mental Capacity Act 2005 (section 44) introduced a new criminal offence of ill treatment and wilful neglect of a person who lacks capacity to make a relevant decision. It does not matter whether the behaviour toward the person was likely to cause or actually caused harm or damage to the victim’s health. Although the Mental Capacity Act mainly relates to adults 16 and over, Section 44 can apply to all age groups including children (Code of Practice Mental Capacity Act 2005).
The Association of Directors of Social Services (ADSS) published a National Framework of Standards to attempt to reduce variation across the country (ADSS 2005). In this document the ADSS 2005 updated this definition above to :-
‘every adult “who is or may be eligible for community care services, facing a risk to their independence” (ADSS 2005 para 1.14).
England and Scotland – differences with policy/legislation
Definition of vulnerability
Three part definition to definition of ‘at risk of harm’
Harm might be caused by another person or the person may be causing the harm themselves
‘no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute ‘harm’ to others can be physical (including neglect), emotional, financial, sexual, or a combination of these. Also, what constitutes serious harm will be different for different persons.’
Code of Practice, Scottish Government (2008)
Defining vulnerable: adult safeguarding in England and Wales
Greater level of contestation in defining VA in adults than children.
Doucuments in wales and England are very similar. In safe hands document is greater but both are issued under the provision of section 7.
Whilst they are guidance, there is a statutory footing behind them.
‘No Secrets (DH2000) defines vulnerable in a particular way: Is a person who ‘is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation.’ No Secrets paragraph 2.3 Lord Chancellor’s Department, Who Decides (1995)
The ASP Act introduces new adult protection duties and powers, including:
Councils duty to inquire and investigate
Duty to co-operate
Duty to consider support services such as independent advocacy
Other duties and powers – visits, interviews, examinations
Protection Orders: assessment, removal, banning and temporary banning
Warrants for Entry, Powers of Arrest and Offences
Duty to establish Adult Protection Committees across Scotland
Harm includes all harmful conduct and, in particular, includes:
a) conduct which causes physical harm;
b) conduct which causes psychological harm (for example: by causing fear, alarm or distress);
c) unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and
d) conduct which causes self-harm.
An adult is at risk of harm if:
another person’s conduct is causing (or is likely to cause) the adult to be harmed, or
the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm
N.B “conduct” includes neglect and other failures to act (Section 53)
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