This chapter provides information for multi-agency practitioners in relation to gaining access to adults who are experiencing, or at risk of, abuse or neglect. Only the police are legally allowed to enter premises without permission, in situations that meet specific criteria. The local authority has a number of legal options they can pursue where access to an adult is being denied. Where practitioners from partner agencies have concerns they should first speak to their line manager / designated safeguarding lead, who will decide whether a safeguarding referral is warranted.
This chapter provides information on legal options for gaining access to adults who are experiencing or at risk of abuse or neglect, where access is restricted or denied. Section 47 of the National Assistance Act 1948 which gave a local authority power to remove a person in need of care from home has been replaced by the Care Act 2014.
2. Safeguarding Enquiries
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 the actual or potential risk (see Duty to Enquire).
This duty does not provide for a power of entry, or right of unimpeded access to the adult who is subject to such an enquiry. There are, however, a range of existing legal powers which are available to gain access, where required.
Whether legal intervention is required, and if so which powers would be the most suitable, will always depend on the individual circumstances of the case. The local authority can apply to the courts or seek assistance from the police to gain access in certain circumstances.
3. Difficulty in Gaining Access
Reasons why it may be difficult to gain access to a person who is the subject of an adult safeguarding enquiry may include:
- access to the premises denied by a person who is present, usually a family member, friend or informal carer;
- access to the premises is given, but it is not possible to speak to the adult alone because a family member, friend or informal carer insists on being present;
- the adult themselves (whether or not they are unduly under the influence of the person present) is insisting that the person is present. In such cases if the adult is known to have mental capacity, the issue of access in terms of the law does not apply.
Where access is refused, it should not automatically lead to consideration of the use of legal powers. Attempts should first be made to resolve the situation via negotiation and a professional relationship based on trust; sensitive handling by skilled practitioners may satisfactorily resolve the situation.
If negotiation is not successful, the local authority must consider whether denial of access is unreasonable and whether the concerns justify intervention. This should involve a discussion with the social worker, manager and legal department regarding the level of safeguarding concern, perceived risks, and possible outcomes of both intervening and not intervening. If it is decided that using legal powers is justified, it should be decided which powers would be the most appropriate.
All such discussions and considerations should be fully recorded including objective facts and professional assessment so that the basis of all decision making is clearly based on objective fact, assessment of risk and proportionate action (see Case Recording).
Unlawful intervention could not only have a detrimental effect on the adult concerned, and their carer / family, but also lead to judicial criticism and / or liability to compensation.
Where it is decided that the use of any power to gain entry is justified, it should be exercised proportionately, in relation to the risk and the level of safeguarding concern for the adult.
An emergency situation involving significant risk may justify the use of legal powers – such as police entry to save life and limb – where there is insufficient time to negotiate gaining access.
The principle of the least restrictive option helps to ensure that interventions are necessary and proportionate.
In relation to a person who lacks mental capacity, consideration must be given to achieving their best interests using an approach which is least restrictive of the person’s rights and freedom of action (see Independent Mental Capacity Advocate Service).
5. Gaining Access
The SCIE guidance Gaining access to an adult suspected to be at risk of neglect or abuse (2014) notes the following legal powers may be considered by the local authority to gain access to the person experiencing, or at risk of, abuse or neglect. The following legal powers may be relevant, depending on the circumstances:
- If the person has been assessed as lacking mental capacity in relation to a matter relating to their welfare: the Court of Protection has the power to make an order under Section 16(2) of the MCA relating to a person’s welfare, which makes the 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.
- If an adult with mental capacity, at risk of abuse or neglect, is impeded from exercising that capacity freely: 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 (for example, to facilitate the taking of a decision by an adult with mental capacity free from undue influence, duress or coercion) in any circumstances not governed by specific legislation or rules.
- If there is concern about a mentally disordered person: 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.
- If a person is believed to have a mental disorder, and there is suspected neglect or abuse: 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.
- Power of the police to enter and arrest a person for an indictable offence: Section 17(1)(b) of PACE.
- Common law power of 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.
- 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). (SCIE, 2014: 8-9).