Gaining access to an adult suspected to be at risk of neglect or abuse

Gaining access to adults at risk of neglect or abuse

Purpose

Published: October 2014 | Last updated: June 2025

The aim of this guide is to clarify existing powers relating to access to adults suspected to be at risk of abuse or neglect.

It has been created to provide information on legal options for gaining access to people who meet the safeguarding duties under the Care Act 2014 (England and Wales) (Care Act).

It relates to the safeguarding where the adult:

• has needs for care and support (whether or not the local authority is meeting any of those needs)
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of, abuse or neglect.

The guide is intended as a reference in situations of uncertainty, rather than as a learning tool. It is important that social workers and their managers are as clear as possible on which legal powers or options apply to which situations, and in cases of any uncertainty that they consult their senior managers and/or the legal department of the local authority.

Throughout the guide you will find links to information on the relevant legislation and case law, should you wish to consult this.

Key messages

• Under Section 42 of the Care Act, local authorities have a duty to make, or cause to be made, enquiries in cases where they reasonably suspect that an adult with care and support needs is experiencing or is at risk of abuse or neglect and, as a result of those needs, is unable to protect themselves from this actual or risk of abuse and neglect.
• This duty to make or to cause adult safeguarding enquiries to be made does not provide for an express legal power of entry or right of unimpeded access to the adult who is subject to such an enquiry.
• Whether it is necessary to seek legal intervention and which powers would be the most appropriate to rely on in order to gain access to an adult to assess any safeguarding risk, or otherwise protect an adult, will always depend on the individual circumstances of the case.

Context and background

Under Section 42 of the Care Act, a local authority has a duty to make enquiries itself or cause others to make enquiries in cases where it has reasonable cause to suspect that an adult:

• has needs for care and support (whether or not the local authority is meeting any of those needs)
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of, abuse or neglect.

Considerations

The purpose of the safeguarding enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. In almost every case it is likely to be necessary to physically see and talk to the adult in order to be able to make that decision.

Good safeguarding practice begins with talking to the adult whom there is concern about, unless there are exceptional circumstances that would increase the risk of abuse. That conversation will need to establish facts and, importantly, what the person wants to happen and how. Practitioners need to make personal contact with the people they are working with and establish a relationship. Therefore, the issue of access and ability of the person to talk freely is critical.

If the adult has substantial difficulty in being involved, and where there is no-one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement.

People must be assumed to have capacity to make their own decisions and be given all practicable help to do so before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for them, or on their behalf, must be made in their best interests. Further information about the MCA can be found at Mental Capacity Act 2005 at a glance (SCIE, 2022).

Organisations should always consider adults’ human rights and promote their wellbeing within any safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual wellbeing, as defined in Section 1 of the Care Act.

All safeguarding policies and practice should reflect the principles underpinning good safeguarding set out in the Care Act statutory guidance for implementation (Department of Health, 2014).

The six principles of adult safeguarding

There are six principles of adult safeguarding:

• empowerment: presumption of person-led decisions and informed consent
• protection: support and representation for those in greatest need
• prevention: taking action before harm occurs
• proportionate and least intrusive responses: appropriate to the risk presented
• partnership: local solutions through services working with their communities
• accountability: accountability and transparency in delivering safeguarding.

There can be many 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:

• access to the premises is being denied by the individual at risk
• access to the premises is being denied by a third party on the premises – typically a family member, friend or other informal carer
• access to the premises can be gained, but it is not possible to speak to the adult alone – because the third party is insisting on being present
• the adult at risk themselves (whether or not unduly under the influence of the third party) is insisting that the third party be present.

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, giving due consideration to any cultural, language or advocacy requirements and adopting a trauma informed approach. Where denial of access is by the third party, it may not necessarily be a sign of wrong-doing; 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.

In cases where the adult at risk is deemed to have capacity and is insisting that the third party be present, any potential control or coercion by the third party should form part of the consideration even where the relationship is not an intimate partner, for example cases involving a paid carer or where the adult at risk is a refugee or asylum seeker. Whatever the situation, it is vital that until the facts are established the practitioner adopts an open-minded, non-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.

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.

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.

Legal powers and the principle of 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.

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.

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. Consideration of the latter should be considered as part of a robust risk assessment plan. 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).

Where the use of legal powers to gain access is deemed to be necessary, it must be exercised proportionately, in relation to the risk and the apparent gravity of the situation.

Principle of the least restrictive option

The principle of the least restrictive option helps to ensure that interventions are necessary and proportionate and is compliant with a range of legislation.

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 MHA 1983 which states that:

“Any restrictions should be the minimum necessary to safely provide the care or treatment required having regard to whether the purpose for the restriction can be achieved in a way that is less restrictive of the person’s rights and freedom of action.”

Further, Section 1 of the Care Act states that a local authority, in exercising its functions under Part 1 of the Care 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.

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 including when and how they can be used and, just as importantly, when they cannot be used and whom to consult in cases of uncertainty.

The law and gaining access

At some point during the making of a safeguarding enquiry under Section 42 of the Care Act, legal powers may be required to gain access to the person known or suspected to be experiencing, or at risk of, abuse or neglect.

The following legal powers may be relevant, depending on the circumstances:

• MCA 2005: If the person has been assessed as lacking mental capacity relating to their welfare the Court of Protection has the power to make an order under Section 16(2) of the MCA to make a decision on that person’s behalf to allow access to an adult lacking capacity. The Court can also appoint a deputy to make welfare decisions for that person. These legal powers would not apply in cases where the person has capacity to make decisions about their safety.
• Inherent jurisdiction of the High Court: If the concern is about an adult with mental capacity whose ability to make decisions has been undermined through constraint, coercion, undue influence or anything else, then the inherent jurisdiction of the High Court enables the Court to make an order (which could relate to gaining access to an adult) or any remedy which the Court considers appropriate in any circumstances not governed by specific legislation or rules.
• MHA 1983: If the concern is about an adult with a mental disorder, Section 115 of the MHA provides the power for an approved mental health professional (approved by a local authority under the MHA) to enter and inspect any premises (other than a hospital) in which a person with a mental disorder is living, on production of proper authenticated identification, if the professional has reasonable cause to believe that the person is not receiving proper care. It must be noted that this does not confer upon the approved mental health professional (AMHP) any power to force entry in order to do this.
• MHA 1983: If a person is believed to have a mental disorder, and there is suspected neglect or abuse, under Section 135(1) of the MHA, a magistrates court has the power, on application from an approved mental health professional, to allow the police to enter premises using force if necessary and if thought fit, to remove a person to a place of safety if there is reasonable cause to suspect that they are suffering from a mental disorder and (a) have been, or are being, ill-treated, neglected or not kept under proper control, or (b) are living alone and unable to care for themselves.
• PACE 1984: includes powers for the police to enter and arrest a person for an indictable offence under Section 17(1)(b) of PACE. An indictable offence is one where a defendant has the right to trial by jury in a Crown Court such as crimes involving ill-treatment or neglect. If there is risk to life and limb Section 17(1)(e) of PACE gives the police the power to enter premises without a warrant in order to save life and limb or prevent serious damage to property. This represents an emergency situation and it is for the police to exercise the power.
• Serious Crime Act 2015 (Section 76): police can enter a premises when they have reasonable grounds to believe that a crime, including controlling or coercive behaviour under Section 76 of the Serious Crime Act is being committed or has been committed.
• Common law: includes powers for the police to prevent, and deal with, a breach of the peace. Although breach of the peace is not an indictable offence the police have a common law power to enter and arrest a person to prevent a breach of the peace.

More detail as to the application and limitations of these legal powers follows in the sections below.

Context of the Mental Capacity Act 2005 (MCA)

View: MCA 2005

An assessment to establish whether a person lacks capacity should take place whenever there is concern that an individual might lack the mental capacity to make a proposed decision. A person must be assumed to have capacity unless it is shown that they lack capacity under the MCA.

Capacity must be assessed in accordance with Sections 2 and 3 of the MCA and decided on the balance of probabilities. Under Sections 2 and 3 of the MCA, it must be established that a person lacks capacity in relation to a specific and relevant matter at the material time.

In the context of this guide, the capacity in question could relate to, for example, the adult’s capacity to make decisions about their situation or to cooperate with the local authority in undertaking the safeguarding enquiry.

An application may be made to the Court of Protection under the MCA to facilitate gaining access to an adult who lacks or may lack capacity, in a case of suspected neglect or abuse, where that access is being denied or impeded. The Court’s permission to make an application will be needed as set out in Section 50 of the MCA.

The Court of Protection must apply the fundamental principles in Section 1 of the MCA:

• assuming that a person has mental capacity unless it can be shown otherwise
• taking all practicable steps to support a person to make a decision with capacity
• acting in the person’s best interests
• considering less restrictive ways of achieving those best interests.

Personal welfare orders

The Court of Protection could make an order under Section 16(2) of the MCA relating to the welfare of a person who lacks capacity, which makes the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person.

Failure to comply with an order of the Court of Protection could be a contempt of Court. The Court can attach a penal notice to the order, warning that failure to comply could result in imprisonment or a fine.

Appointment of a deputy

The Court of Protection may appoint a deputy for a person who lacks capacity under Section 16(2) who can make the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person.

Interim orders and directions

The Court of Protection could make interim orders and directions under Section 48 of the MCA if an application to the Court of Protection has been commenced but not yet determined if:

• there is reason to believe that a person lacks capacity in relation to the matter
• the matter is of a type covered by the powers of the Court, and it is in that person’s best interests to make an order or give directions without delay.

The pending application could be in relation to whether the person lacks capacity, what arrangements would be in that person’s best interests, or an application to authorise a deprivation of liberty.

Interim orders/directions cannot be sought if there is no pending application.

Threshold for an interim order or directions

The Court may make interim orders or directions that include requiring immediate safeguarding steps relating to the adult’s personal welfare to be taken.

Access under an interim order or directions

The interim order or directions may contain directions to permit a person entry to premises and access to that person. Obstruction by a third party of access to and assessment of that person may be a contempt of Court. A penal notice may be attached to the order or directions, warning that a breach could result in imprisonment. The order or directions may be against not just the third party but also that person.

Non-cooperation

The case of Re SA; FA v Mr A [2010] EWCA Civ 1128 para 52

In this case, the mental capacity of a young woman needed to be determined. Both she and her mother denied that she lacked capacity. There were great difficulties in communicating with and obtaining the engagement, assistance and cooperation of both daughter and mother. An interim order was made by the Court against both, with a penal notice attached to the following effect:

“The order … should not merely contain the appropriate declaration as to the need for the further assessment (confined to the questions of capacity) but also the consequential directions requiring cooperation and facilitation by [the daughter] and her mother. In addition, the order should contain a liberty to apply as to implementation and enforcement, that is, liberty to apply by the local authority and/or the Official Solicitor in the event of difficulty, that application to be made to the Court of Protection.”

It may be that the direction will simply be about obtaining appropriate and specialist evidence quickly so that the person’s capacity can be reliably determined.

However, the Court will only make orders or directions against a third party if necessary. If the third party gives an undertaking to cooperate, which the Court believes is genuine, it will not be necessary to make the orders or directions.

The nature of any direction depends on the individual facts of the case, the circumstances of the adult, and the seriousness of the urgent decisions in question.

All this will be balanced against the restriction of the adult’s decision-making being kept to a minimum, consistent with his or her best interests.

Inherent jurisdiction of the High Court

‘Inherent jurisdiction’ is a term used to describe the power of the High Court to hear any case which comes before it unless legislation or a rule has limited that power or granted jurisdiction to some other court or tribunal to hear the case. This means that the High Court has the power to hear a broad range of cases including those in relation to the welfare of adults, so long as the case is not already governed by procedures set out in rules or legislation.  It is ‘common law’ developed by the High Court to control the procedures before it and to stop any injustices arising from it being prevented from hearing any case.

It is not normally used in relation to people who lack capacity, because such cases are dealt with by the Court of Protection under the procedures established by the MCA.

However, inherent jurisdiction may still be relevant to an adult lacking capacity if the matter and intervention required are not covered by the MCA; for example, when making a declaration of non-recognition of a marriage or depriving a person of their liberty for the purpose of enforcing physical treatment.

It will also sometimes be necessary for a local authority to make an application to the High Court to ask the Court to exercise its inherent jurisdiction to protect an adult with mental capacity.

The order could in principle be directed against a third party and so relevant to a situation on which this guide focuses: the denial of access by a third party to a person suspected of experiencing, or at risk of, abuse or neglect.

Does the Mental Capacity Act (MCA) or inherent jurisdiction apply?

The MCA only applies if a person lacks capacity within the meaning of Sections 2 and 3 of the MCA, subject to the Court of Protection powers under section 48 (see above) even if capacity has not been formally determined.

If, however, the person has capacity but cannot take a decision (freely) because of coercion, undue influence or constraint – or other circumstances – then an application can be made relying on the Court’s inherent jurisdiction.

The case of London Borough of Redbridge v G [2014] EWHC 485 (COP), [2014] MHLO 13, para 1

In this case, a local authority made an application to the courts with a view to protecting an elderly woman from a live-in informal carer and her husband. The woman’s mental capacity was at the outset uncertain. So at that point it was unclear whether the MCA or the inherent jurisdiction was applicable:

“Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA Sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the Court under its inherent jurisdiction.”

Inherent jurisdiction and safeguarding

The courts continue to develop and explore the extent and application of inherent jurisdiction, which is protective in relation to adults in vulnerable circumstances, and they will endeavour always to avoid undermining the principles in Section 1 of the MCA that an adult can take unwise decisions without this necessarily indicating a lack of capacity.

Orders made under the Court’s inherent jurisdiction may or may not be time-limited.

The courts will also be mindful that rash use of the jurisdiction would risk breaching Article 8 of the European Convention on Human Rights (ECHR) (‘right to respect for private and family life’). However, at the same time, so-called ‘positive obligations’ to protect an individual’s rights under the EHCR may require the courts to intervene by exercising its inherent jurisdiction. This implies that in appropriate cases, local authorities should also be asking the courts to consider exercising its inherent jurisdiction on human rights grounds.

According to the courts, the inherent jurisdiction can be exercised for vulnerable adults, with or without capacity, who are ‘reasonably believed’ to be ‘under constraint’ or ‘subject to coercion or undue influence’, or for another reason ‘deprived of the capacity to make the relevant decision’, or prevented from making a free choice, or from ‘giving or expressing a real and genuine consent’.

Referring back to the case of London Borough of Redbridge v G [2014] EWHC 485 (COP) it was deemed that G lacked capacity and was subject to undue influence by the carers. A best interest decision was made to remove the informal carers from the property to allow access. In their summing up Lord Justice McFarlane stated  

“I have considered the Court of Appeal case of DL v A Local Authority & Others [2012] EWCA Civ 253 and could under the inherent jurisdiction of the High Court, exercise the power under the inherent jurisdiction to make a mandatory injunction requiring C and F to leave the property. However, I do not consider that to be necessary as the powers under the MCA are sufficient.”

There has been no specific definition of what constitutes ‘vulnerable’ in such cases, and the jurisdiction is not confined to ‘vulnerable’ adults, but equally adults at risk of abuse and neglect do not automatically come under it.

Factors to consider when an adult can be considered ‘vulnerable’ have been suggested; for example, people unable to take care of themselves or protect themselves from harm or exploitation by others. Those suffering from mental illness or physical disability may also be considered vulnerable, depending on the circumstances. Clearly, it will be easier to make a case for exercising the jurisdiction in relation to apparently vulnerable adults than for those who do not appear vulnerable.

The important thing to remember when considering applying to the Court to use its jurisdiction to grant an access order is that its purpose is not to overrule the wishes of an adult with capacity, but to ensure that the adult is making decisions freely. In the context of this guide, constraint, coercion or the undue influence of a third party may be preventing the adult’s ability to make free decisions, and recourse to the Court’s jurisdiction may be used to assist professionals in gaining access to assess the adult.