Managing Difficulties in Gaining Access

Whilst it is essential that the adult at risk who is being abused or neglected and needs action to protect them is seen and spoken to, it may be difficult to gain access to them.

For example: Access to the premises is being denied altogether 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 appears to be under the influence of the third party and is insisting that the third party be present.

All attempts to resolve the situation should be made. If this fails, then the local authority should consider whether:

• the refusal to give access is unreasonable;
• the circumstances warrant intervention.

If the conclusion is that the use of legal powers is necessary and justified practitioners, in collaboration with their managers and legal advisors should decide what powers are most appropriate for the situation.

Any decisions and the reasons for them should be clearly and fully recorded.

Relevant legal powers

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 Mental Capactity Act 2005 relating to a person’s welfare or property. 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 Mental Health Act 1983 amended 1998 provides the power for an approved mental health professional (approved by a Local authority under the MHS) 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, under Section 135(1) of the Mental Health Act 2005, 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.
• 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.

The police have powers to enter premises:

• A power to enter and arrest a person for an indictable offence under section 17(1)(b) of the Police and Criminal Evidence Act (PACE);
• A power to enter premises without a warrant in order to save life and limb or prevent serious damage to property under section 17(1)(e) of PACE. (This would represent an emergency situation and it is for the police to exercise this power).
• If the police reasonably believe that a breach of the peace is being committed, or is about to be committed, on private property, they may use their common law power to enter the property without a warrant to stop or prevent the breach.

Adult Protection and Support Orders (APSOs)

The aim of an Adult Protection and Support Orders is to enable adults at risk to express their views independently. These should be sought rarely after less interventionist approaches have been considered and/or attempted. However, in circumstances when a social services practitioner, or other practitioner acting on the local authority’s behalf, is prevented from speaking to the adult suspected of being at risk because of abuse and neglect or the practitioner suspects the adult may be being coerced or threatened into not speaking to the practitioner the local authority can apply for an APSO.

N.B. Adult Protection and Support Orders do not grant a power of removal. The principle is that the wishes of an adult at risk should be capable of being freely expressed and that they should be respected.

For example, a report has been received from a member of the public that an adult with learning disabilities is being physically abused and neglected by a relative. Initial checks indicate this man is living in a dilapidated caravan on a farm. A social work practitioner visits the farm and is prevented from seeing the man by his uncle, who indicates his nephew is very shy and does not want to talk to anyone and that everything is fine. This does not appear to be commensurate with the living conditions. The practitioner notices a thin and very dirty looking man staring out from behind a filthy caravan window.

Information gathered from other agencies indicate that the man is not registered with a GP or known to any other services.

After discussion with the safeguarding manager and police, a decision is taken to apply for an APSO.

The order is designed to:

1. enable an authorised officer¹ from the local authority to ascertain whether that person is making decisions freely;

and

2. enable the authorised officer to properly assess whether the person is an adult at risk;

and

3. to decide, as required by s.126(2) of the Social Services and Well-being (Wales) Act 2014, what, if any, action should be taken.

The order is made by a justice of the peace who must be satisfied of 1 and 2, and also that:

• exercising the power of entry conferred by the order will not result in the person being at greater risk of abuse or neglect.

An APSO will:

• specify period for which the order will be in force;
• specify the premises to which it relates. this includes domestic premises mobile home, other building or structure where individual is living, residential or nursing home, hospital;
• provide for the authorised officer to be accompanied by a police officer.

When making the decision as to whether to apply for an Adult Protection and Support Order (APSO) the following questions should be considered and inform the application:

• What are the exceptional circumstances that have led to the request for an APSO?
• What has happened to date that supports this application?
• What attempts have been made to gain access and see the adult at risk?
• What will practitioners do if the APSO application is successful?
• How long will it take?
• What is the exit strategy?

The APSO may allow for another specified person to accompany the authorised officer. Examples of such a person who might be included:

• the key worker (social worker or health care worker);
• domiciliary care worker;
• advocate (statutory or non-statutory);
• family member or close friend;
• best interest assessor;
• general practitioner; or
• approved mental health professional under the Mental Health Act 1983.

The anticipated roles of those who accompany the authorised officer will vary. They will include:

• ensuring that any interview with the person suspected of being at risk is conducted fairly;
• providing expert knowledge and experience on specific matters (e.g. capacity);
• advocating on behalf of the person;
• sharing their existing knowledge of the person;
• building a rapport with the person;
• allowing the authorised officer to jointly investigate concerns with, for example, a key worker, a police officer, health professional or office of the public guardian; and
• assisting communication with the adult (or any other member of the household), for example, an interpreter in British Sign Language, lip speaker, Makaton communicator, deaf-blind communications interpreter or a language interpreter.

(See Working Together to Safeguard People Volume 4 Adult Protection and Support Orders for more detail)

Practitioners who have knowledge of the adult at risk, their family and carers must co-operate and share information to establish the need for and support the application for the APSO.

¹An authorised officer is employed by the Local Authority, has undertaken specialist training and is required to keep their skills up to date.