PLT Masthead 430

Comment and Analysis Masthead

Safeguarding and the Court of Protection

Lexis Public Sector 146x219Safeguarding issues frequently underpin or arise in welfare proceedings in the Court of Protection. LexisPSL Local Government, in partnership with Alex Ruck Keene, Michelle Pratley and the Legal Action Group, set out the key considerations.

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What is safeguarding?

‘Safeguarding’, in its broadest sense, encompasses all aspects of a person’s welfare. It is this meaning of safeguarding that informs the approach of local authorities to the provision of adult services.

References:

Law Commission’s report: Adult social care, Law Com No 326, May 2011, para 9.2 

However, in the context of proceedings in the Court of Protection the term ‘safeguarding’ is generally used to refer to what might more accurately be called ‘adult protection’: investigation and intervention by a public body where it is suspected that a person has been, is currently, or may in future be, the subject of abuse.

The statutory basis of safeguarding applications

Prior to the commencement of the Care Act 2014 (CA 2014), the safeguarding responsibilities on local authorities in England arose from a mixture of statutory obligations (including the duty to undertake community care assessments), statutory guidance and public law and human rights requirements.

References:

No Secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, Department of Health/Home Office, 2000

CA 2014 changed the law by imposing specific safeguarding duties on local authorities in England. Equivalent duties were also introduced in Wales by the Social Services and Well-being (Wales) Act 2014.

References:

Care Act 2014, s 1 (the duty to promote well-being)

CA 2014, s 42 (the duty of enquiry)

Social Services and Well-being (Wales) Act 2014, s 5 (the duty to promote well-being)

Social Services and Well-being (Wales) Act 2014, s 126 (the duty of enquiry)

It is important to note that it is not only local authorities who have safeguarding obligations: other bodies, most obviously national health service (NHS) bodies, also have responsibilities toward adults at risk and may find that those responsibilities necessitate bringing proceedings in the Court of Protection. While the changes set out in CA 2014 and the Social Services and Well-being (Wales) Act 2014 do not directly apply to such bodies, the general principles in relation to safeguarding and applications to the Court of Protection apply to them with equal force.

 

Safeguarding duties of local authorities

There are now two specific safeguarding duties imposed on local authorities: the duty to promote well-being and the duty of enquiry.

The duty to promote well-being

CA 2014 imposes an over-arching duty on English local authorities to promote the well-being of individuals when discharging its statutory care and support functions. ‘Well-being’ is defined as including protection from an abuse and neglect.

References:

CA 2014, s 1

An equivalent duty to promote well-being was also introduced in Wales.

References:

Social Services and Well-being (Wales) Act 2014, s 5

The duty of enquiry

CA 2014 also introduced a statutory duty of enquiry where an English local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there):

References:

CA 2014, s 42

  • has needs for care and support (whether or not the authority is meeting any of those needs) (ie whether or not the adult is eligible for community care services provided by the local authority)
  • is experiencing, or is at risk of, abuse or neglect, and
  • as a result of those needs is unable to protect themselves against abuse or neglect or the risk of it

There is an equivalent duty of enquiry in Wales.

References:

Social Services and Well-being (Wales) Act 2014, s 126

 

The meaning of 'abuse'

Abuse is not defined in CA 2014 but the legislation makes clear that it includes financial abuse.

References:

CA 2014, s 42(3)

The statutory guidance accompanying CA 2014 provides that it also encompasses physical abuse, domestic violence, sexual abuse, psychological abuse, modern slavery, discriminatory abuse and organisational abuse. ‘Neglect’ is defined in the statutory guidance as including neglect by acts or omission such as ignoring medical, emotional or physical care needs, failure to provide access to appropriate health, care and support or educational services and the withholding of the necessities of life, such as medication, adequate nutrition and heating. It can also include self-neglect.

References:

Care and Support Statutory Guidance, Chapter 14 (updated 24 February 2017)

The Welsh legislation gives a more detailed definition of both abuse and neglect in the legislation itself.

References:

Social Services and Well-being (Wales) Act 2014, s 197

There is also a non-exhaustive list of examples given in the accompanying Welsh statutory guidance.

References:

Welsh government statutory guidance: Working Together to Safeguard People, Volume 1—Introduction and Overview, Pt 7, para 26

Neither the Social Services and Well-being (Wales) Act 2014 nor the Welsh statutory guidance expressly provide for self-neglect, and indeed the language of the latter would suggest that self-neglect is outside the scope of neglect for these purposes.

Where the duty of enquiry arises, the local authority must make or cause to be made whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s care and, if so, what action and by whom.

References:

CA 2014, s 42(2)

Social Services and Well-being (Wales) Act 2014, s 126

Critically, CA 2014 does not introduce any additional powers for local authorities in respect of either the prevention or the investigation of abuse or neglect. The government declined the opportunity to introduce a power of entry by which a local authority would be able to seek a judicial warrant to enter a property and speak to an adult at risk. A different approach was taken in the Social Services and Well-being (Wales) Act 2014, which includes a power for an authorised officer in Wales to apply for an adult protection and support order.

References:

Social Services and Well-being (Wales) Act 2014, s 127

 

Safeguarding and the Court of Protection

The ability to apply to the Court of Protection is one of the most important powers that is available to local authorities in the adult protection context. As such, it is unsurprising that safeguarding concerns are at the heart of a significant proportion of welfare applications made by local authorities. Such applications are made because the local authority believes that an adult who lacks decision-making capacity in one or more domains has been subjected to, or is at risk of, harm. (See also: Alex Ruck Keene, Kelly Stricklin-Coutinho and Henry Gilfillan, ‘The role of the Court of Protection in safeguarding' [2015] Journal of Adult Protection 380).

It is common for local authorities to seek best interests declarations and/or decisions from the court in such cases that engage the vulnerable or protected person (P)’s human rights, most often under Article 8 but also at times under Articles 2, 3 and 5. An application must always be made where such rights are engaged and P, their family members or close friends do not agree that the safeguarding measures proposed by a local authority are in P’s best interests.

Difficulties frequently arise when local authorities are not sufficiently clear as to the specific requirements that arise when matters move from safeguarding investigation to proceedings before the court. A decision to instigate proceedings before the Court of Protection gives rise to a specific set of obligations upon the applicant, be that a local authority or NHS body, arising from the demands of the court process. See Practice Note: Fact-finding hearings in the Court of Protection for further details of fact-finding hearings as this is often a crucial part of safeguarding or adult protection proceedings.

Perhaps the most important point to emphasise here is that it is inappropriate for Court of Protection proceedings to be used as a ‘voyage of discovery’: the applicant must be satisfied at the outset that it has a satisfactory evidential basis for any allegations that it advances against those whom it contends have harmed the adult or from whom the adult is at risk. That evidential basis may, in a very urgent case, be limited, but as a general rule, it is clear that a local authority should not embark upon Court of Protection proceedings unless it is satisfied that it has the evidence that it will need at the final hearing to support factual allegations made against any individuals.

References:

A Local Authority v PB and P [2011] EWHC 502 (COP), at para 38

This means that a decision to bring proceedings has to be taken after a rigorous assessment (involving senior members of the social work management team and the legal department) to ensure that:

  • the evidence being put before the court is sufficiently cogent. While the standard of proof before the Court of Protection is the civil standard of balance of probabilities, it is axiomatic that a serious allegation should not be advanced without proper evidence (see A Local Authority v HS [2013] EWHC 2410 (COP) (not reported by LexisNexis®), at paras 184–186)
  • the sources of information forming the foundation of the decisions being made are checked and considered to be reliable

References:

Surrey CC v M [2013] EWHC 2400 (Fam)

'The fact that a piece of information has been repeated many times does not enhance its reliability'

  • Surrey CC v M at para 77, per Theis J, a case relating to similar concerns in care proceedings  where orders are being sought that interfere with P’s rights (most commonly under the European Convention on Human Rights, Article 8, but also Articles 2, 3 and 5), the picture being put to the court is a balanced one

References:

Surrey CC v M [2013] EWHC 2400 (Fam)

  • proper consideration has been given to whether it is necessary to put the allegations to the alleged abuser before taking steps upon the basis of those allegations. The obligation upon public bodies to treat parties affected by their actions in a just manner is capable of being overridden by the obligation to protect an adult at risk, but a failure to recognise that obligation can, itself, give rise to flawed decision-making

References:

Davis and Davis v West Sussex CC [2012] EWHC 2152 (QB)

The courts are alive to the fact that, on occasion, local authorities are on the horns of a dilemma, and that it may be necessary to invoke the jurisdiction of the Court of Protection urgently before it has been possible to investigate an allegation of abuse. (See A Local Authority v HS [2013] EWHC 2410 (COP) (not reported by LexisNexis®), at para 187).

However, in such a case, it is all the more important that stock is taken as soon as possible thereafter of matters. The failure to do so will lead to (at least) two adverse consequences:

References:

Somerset County Council v MK [2014] EWCOP B25 (damages not quantified)

Somerset County Council v MK [2015] EWCOP B1 (indemnity costs)

Milton Keynes Council v RR [2014] EWCOP B19

Essex County Council v RF [2015] EWCOP 1: (£60,000 damages, care home fees waived at a cost to the local authority of £23–£25,000, costs)

  • leaving allegations ‘[hanging] like a cloud’ over family members or other individuals, which can place those individuals in an unnecessarily adversarial position vis-à-vis the local authority and create a substantial distraction to the real welfare issues, and

References:

A London Borough v (1) BB (by her litigation friend the Official Solicitor) [2011] EWHC 2853 (Fam), at para 18

  • in the worst case scenario, very substantial damages and/or costs may be incurred unnecessarily by other parties, and then fall to be paid by the local authority:

‘There was a prolonged failure on the local authority’s part to recognise the weakness of its case. The allegations were vague and insufficiently particularised. The ‘evidence’ in support was manifestly inadequate. It was internally inconsistent and unreliable. The truth of what was alleged was assumed without any proper, critical, analysis’ (A Local Authority v HS [2013] EWHC 2410 (COP) (not reported by LexisNexis®), at paras 184–188)

The propositions set out above do not affect the general duty to place disputes before the court even where the best outcome may not be immediately clear. Court of Protection proceedings need not be adversarial and may be the best forum for resolving finely-balanced questions as to what may constitute the best and least restrictive alternative for P.

In all cases it is essential that the available evidence has been openly shared with the court and the parties. It is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents.

References:

Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431

 

Safeguarding during Court of Protection proceedings

Public bodies can sometimes be unclear as to whether they can take safeguarding steps without the authorisation of the court, where safeguarding issues arise when proceedings are on foot in the Court of Protection.

The short answer is that the fact that Court of Protection proceedings are on foot does not alleviate the obligations on the local authority (or NHS body) where they have reason to believe that P has suffered harm or is at risk of harm. However, while they should take such steps as are immediately necessary to meet the situation, it is likely always to be necessary to bring the matter back to court if they will involve a substantial change in P’s circumstances (eg where P is living).

When there are ongoing proceedings in the Court of Protection, the issue of whether or not P should be the subject of an ‘achieving best evidence’ interview with the police must be raised with the court and subject to a direction from the judge, unless there is an absolutely pressing emergency.

References:

Enfield LBC v SA [2010] 1 FLR 1836

Where the substance of the interview might relate to allegations that another party to the proceedings (or someone closely connected to a party) had harmed P then there may be good grounds for the matter being raised, at least initially, without notice to that party. However, in every case, notice should be given to the Official Solicitor or any other person who acts as P’s litigation friend.

In some cases the involvement of the police will be required to implement decisions and declarations made by the Court of Protection. In such cases, parties should look to the guidance that has been given on involving the police in removing P from their home. (See LBH v GP and MP [2010] 13 CCLR 171 (unreported, 8 April 2009) (not reported by LexisNexis®), at para 31 per Coleridge J and Enfield LBC v SA [2010] 1 FLR 1836).

This article, from LexisPSL Local Government, was produced in partnership with Alex Ruck Keene and Michelle Pratley both of 39 Essex Chambers and the Legal Action Group, publishers of the Court of Protection Handbook from which parts of this article are taken.

This article was originally published in LexisPSL Private Client. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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