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To empower or to protect? Constructing the ‘vulnerable adult’ in English law and public policy

Published online by Cambridge University Press:  02 January 2018

Michael C Dunn ,
Isabel CH Clare  and
Anthony J Holland
Michael C Dunn
Affiliation:
Department of Psychiatry, University of Cambridge
Isabel CH Clare
Affiliation:
Department of Psychiatry, University of Cambridge
Anthony J Holland
Affiliation:
Department of Psychiatry, University of Cambridge
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Abstract

Recent judgments in England and Wales have confirmed and extended the High Court's inherent jurisdiction to make declarations about interventions into the lives of ‘vulnerable’, rather than simply ‘mentally incapacitated’ adults. We argue that this shift is problematic because of the ways that the ‘vulnerable adult’ has been constructed in order to justify such interventions. The accounts of vulnerability drawn upon in the constructive process highlight the person's inherent characteristics and/or the circumstances within which that person might be denied the ability to make a free choice. Such an approach parallels the public policy protection of ‘vulnerable adults’ from abuse in care services and the statutory protection of ‘vulnerable witnesses’ in the criminal justice system, and is built on an external and objective assessment of being ‘at risk’, rather than an understanding of the subjective experience of being vulnerable. We argue that this imbalance might act to disempower the ‘vulnerable adult’ by reducing that person's life to a series of risk factors that fail, first, to place him/her at the heart of the decision to intervene, and, secondly, to engage adequately with the experiences through which that person ascribes meaning to his/her life.

Type
Research Article
Information
Legal Studies , Volume 28 , Issue 2 , June 2008 , pp. 234 - 253
Copyright
Copyright © Society of Legal Scholars 2008

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References

1. Mental Capacity Act 2005, Ch 9.

2. [1990] 2 AC 1.

3. That is, ‘there [must] be a necessity to act when it is not practicable to communicate with the assisted person’, Re F, above n 2, at 75 per Lord Goff.

4. That is, ‘the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’, Re F, above n 2, at 75 per Lord Goff.

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11. Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2005] 2 FLR 230, at [8] per Singer J.

12. Local Authority v Health Authority, above n 10, at [96] per Dame Butler-Sloss P.

13. Bartlett, P Blackstone's Guide to the Mental Capacity Act 2005 (Oxford: Oxford University Press, 2nd edn, 2008) pp 146–147 Google Scholar. See also Mental Capacity Act 2005 Code of Practice, paras 4.32–4.33.

14. Mental Capacity Act 2005, s 4.

15. Bartlett, above n 13, at pp 148–149.

16. Carlo Saulle (By Gabriella Saule his sister and Litigation Friend) v Olivier Nouvet [2007] EWHC 2902 (QB), at [9]–[10] per Mr Andrew Edis QC.

17. See Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867, and the detailed analyses in M Welstead ‘Vulnerable adults: The inherent jurisdiction and the right to marry’ (2007) 19 The Denning Law Journal 258–269, R Jones Mental Capacity Act Manual (London: Sweet & Maxwell, 2nd edn, 2007), and E Mitchell ‘Learning Disabilities: Care Disputes’ (2008) 45 The Journal of Community Care Law 7–8.

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19. Ibid, at [104]–[105] per Bennett J.

20. Above n 11.

21. Above n 17.

22. SK was not aware of the court hearing at the time it took place. Bennett J held that attempts should be made by consular officers in Bangladesh to contact SK, and to seek to discover whether the circumstances as presented to the court were indeed occurring. Ultimately, contact was made with SK, she returned to England, and conveyed her wish that proceedings should not continue as she had no need of the court's protection.

23. The first scenario concerns the compulsory assessment or treatment of an adult with a ‘mental disorder’, when that adult is judged to be a risk to either themselves or others, under ss 2 and 3 of the Mental Health Act 1983. The second scenario concerns the compulsory examination and/or detention of a person with an infectious and ‘notifiable’ disease in order to control the spread of that disease, under ss 35–38 of the Public Health (Control of Diseases) Act 1984, Ch 22. ‘Notifiable’ diseases for which this legislation can be invoked are listed in Public Health (Infectious Diseases) Regulations 1988 (SI 1998/1546). The provisions for public health protection in the Public Health (Control of Diseases) Act 1984 are due to be updated by the Health and Social Care Bill, currently going through parliament. This Bill reinforces and extends current measures to cover radioactive or chemical contamination in addition to infectious diseases.

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39. Ibid, at para 2.3. This position is affirmed by an editorial in the Journal of Adult Protection, which recognised that the ‘concern that adults who are eligible to receive health and social services are additionally vulnerable to a range of abusive and neglectful behaviours has been consistently validated by research studies over the past ten years’, H Brown, P Kingston and B Wilson ‘Editorial’ (1999) 1(1) Journal of Adult Protection 4–5.

40. The six types of abuse outlined in No Secrets are physical abuse, sexual abuse, psychological abuse, financial or material abuse, neglect and acts of omission, and discriminatory abuse.

41. No Secrets, above n 34, at paras 1.1 and 2.20.

42 This includes making use of Criminal Record Bureau disclosures through the Protection of Vulnerable Adults (POVA) scheme. The POVA scheme was introduced through the Care Standards Act 2000, Ch 14, and implemented on a phased basis from July 2004. The scheme is being updated through the Safeguarding Vulnerable Groups Act 2006, Ch 47, due to be implemented in the autumn of 2008, and introduced in response to recommendation 19 of the Bichard Inquiry Report ( Bichard, M The Bichard Inquiry Report (London: The Stationery Office, 2004))Google Scholar into the murders of the Soham schoolgirls, Holly Wells and Jessica Chapman, by Ian Huntley.

43. In England and Wales, the Special Measures available for vulnerable witnesses are the use of screens, live-link CCTV, exclusion of the public, removal of wigs or gowns, video-recorded evidence in-chief, video-recorded cross-examination and re-examination, examination via an intermediary, and devices to aid communication (Youth Justice and Criminal Evidence Act 1999, Ch 23, ss 23–30). The eligibility of these depends on whether the vulnerable witness is defined as an ‘incapacitated’ or ‘fearful or distressed’ witness.

44. Mental Health Act 1983, Ch 20.

45. Youth Justice and Criminal Evidence Act 1999, ss 16(1)(b) and 16(2).

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49. Mental Capacity Act 2005, s 3(1).

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62. Re SA, above n 17, at [11]–[13] per Munby J.

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67. Ibid, at para 2.21.

68. National Assistance Act 1948, s 37.

69. Mental Health Act 1983, s 135 and ss 7–11.

70. Law Commission, above n 65, at para 2.1.

71. Ibid, at para 3.25.

72. Ibid, at para 3.34.

73. Ibid, at paras 3.37 and 3.39.

74. Ibid, at para 3.41.

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87. This plan was announced by Ivan Lewis MP, Parliamentary Under Secretary of State for Care Standards, in a Department of Health Press Release concerning the publication of the ‘UK Study of Abuse and Neglect’ on 14 June 2007. Final plans for this process have yet to be announced.

88. M O’Keeffe, A Hills, M Doyle, C McCreadie, S Scholes, R Constantine, A Tinker, J Manthorpe, S Biggs and B Erens UK Study of Abuse and Neglect of Older People: Prevalence Survey Report (King's College London and National Centre for Social Research, 2007). See website available at http://www.natcen.ac.uk/natcen/pages/publications/research_summaries/NC234_RF_OlderPeople_web2.pdf.

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93. Mental Health Act 2007, s 4(2). This signifies the removal of the so-called ‘treatability test’ which underpinned detention for treatment under the Mental Health Act 1983.

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99. See, for example, An Act Respecting the Welfare of Neglected Adults 1972 (Newfoundland); Family Services Act 1980 (New Brunswick); An Act to Provide for Protection of Adults from Abuse or Neglect 1985 (Nova Scotia).

100. RM Gordon, SN Verdun-Jones and D MacDougall ‘Reforms in the field of adult guardianship law: A comment on recent developments’ (1987) 6(1) Canadian Journal of Family Law 149–154.

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102. Re SA, above n 17, at [37] per Munby J.