Difficulties in gaining access to an adult suspected of being at risk of neglect or abuse: a guide for social workers and their managers in England

Published: October 2014

There will be a wide range of reasons why, and circumstances when, it may be difficult to gain access to an adult who is the subject of an adult safeguarding enquiry. Here are some examples:

However, the simple fact of access being refused should not automatically lead to consideration of the use of legal powers. Such situations are often complex and highly sensitive and, if they are to be resolved successfully and safely, will need sensitive handling by skilled practitioners. All attempts to resolve the situation should begin with negotiation, persuasion and the building of trust. Denial of access may not necessarily be a sign of wrong-doing by the third party; it may be an indication of lack of trust of authority, guilt about their inability to care or fear that the adult will be removed from the home. It is vital that until the facts are established the practitioner adopts an open-minded, not judgemental approach.

If all attempts fail then the local authority must consider whether the refusal to give access is unreasonable and whether the circumstances justify intervention. There will need to be a local authority-led discussion about what the perceived risks are, the likelihood of risk or neglect occurring and the potential outcomes of both intervening and not intervening. As in any other situation, any decisions and the reasons for them should be clearly and fully recorded and shared with others as necessary and lawful.

If the conclusion is that the use of legal powers is necessary and justifiable, the next step is to consider what powers would be most appropriate.

Therefore local authority managers and practitioners involved in safeguarding need to be aware of existing legal powers which can be used if necessary to gain access to make enquiries, or cause enquiries to be made, in order to assess what (if any) safeguarding action is needed to protect an adult thought to be at risk of abuse and neglect because of their care and support needs. 

Recourse to the courts and legal powers should be considered carefully and only as a last resort. Local authorities must satisfy themselves that there are grounds to seek access and that the use of such powers will not be unlawful or leave an adult in a worse position. Clearly any unlawful intervention could lead not only to judicial criticism but also to liability (whether as a result of a breach of human rights or otherwise).

Proportionality

Any interference by the state (meaning public bodies, or sometimes private bodies carrying out functions of a public nature) must be lawful and necessary. The stipulation of necessity encompasses a requirement of proportionality – that is, not ‘taking a sledgehammer to crack a nut’. Where the use of any power of entry is thought necessary, it should be exercised proportionately, in relation to the risk and the apparent gravity of the situation.

If powers of intervention are to be exercised lawfully and proportionately, it follows that practitioners involved in safeguarding require a basic knowledge of what powers are available; in particular, when and how they can be used – and, just as importantly, when they cannot be – and whom to consult in cases of uncertainty.

Of course an emergency situation involving significant risk may justify the use of coercive powers – such as police entry to save life and limb – if there is clearly no time to attempt a negotiated, non-coercive approach.

Principle of necessity and proportionality linked to the principle of the least restrictive option

The principle of the least restrictive option helps to ensure that interventions are necessary and proportionate.

Section 1 of the MCA requires that, in respect of an act or decision done for a person who lacks capacity, consideration must be given to achieving the person’s best interests in a manner which is least restrictive of the person’s rights and freedom of action.

Likewise the least restrictive principle is a guiding principle in the statutory Code of Practice for the Mental Health Act 1983: it states that

People taking action without a patient’s consent must attempt to keep to a minimum the restrictions they impose on a patient’s liberty, having regard to the purpose for which the restrictions are imposed.

Code of Practice: Mental Capacity Act 2005 [2]

Further, Section 1 of the Care Act 2014 states that a local authority, in exercising its functions under Part 1 of the Act in the case of an individual, must promote that individual’s wellbeing and have regard to a number of factors including the need to ensure that any restriction on the individual’s rights or freedom of action is kept to the minimum necessary for achieving the purpose for which the function is being exercised.

The duty to enquire arising during an assessment

If, when a practitioner is undertaking an assessment or a review of a care and support plan, they come to know or suspect that the adult is experiencing, or is at risk of, neglect or abuse, then this will trigger the duty to make enquiries under Section 42 of the Care Act. [3] Such a trigger can work both ways: an assessment for care and support can be during the course of a safeguarding enquiry.

The duty demands that either the local authority itself makes the enquiries, or (where appropriate) that it asks another person or agency to do so; for example, asking the police to investigate where a crime is suspected or asking a health professional if they visit the adult regularly.

The duty to make enquiries (or to cause them to be made) does not hinge on a request by the adult or anybody else and is not negated by a third party’s refusal to grant access to the adult, nor by the adult’s refusal to participate.

Under the Care Act, there is no express legal power of entry or right of unimpeded access to the adult. However, where necessary, local authorities can apply to the courts or seek assistance from the police to gain access in certain circumstances under existing powers.

.

Download

All SCIE resources are free to download, however to access the following download you will need a free MySCIE account:

Available downloads:

  • Gaining access to an adult suspected to be at risk of neglect or abuse: a guide for social workers and their managers in England