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

  • Michael C Dunn (a1), Isabel CH Clare (a1) and Anthony J Holland (a1)
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.

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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.

5. Airedale NHS Trust v Bland [1993] AC 789.

6. Re Y (Mental Patient: Bone Marrow Donation) [1997] Fam 110.

7. Simms v Simms and Another [2003] 1 All ER 669.

8. Re S (Adult's Lack of Capacity: Carer and Residence) [2003] EWHC 1909 (Fam).

9. Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam).

10. Local Authority v Health Authority and Another (Disclosure: Restriction on Publication) [2004] 1 All ER 480, at [96] per Dame Butler-Sloss P.

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 146147 . 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.

18. [2004] EWHC 2222 (Fam).

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.

24. Re SA, above n 17, at [131] per Munby J.

25. Ibid, at [79] per Munby J.

26. Ibid, at [77] per Munby J.

27. Ibid, at [82] per Munby J.

28. Law Commission Mental Incapacity: Law Commission Report 231 (London: Law Commission, 1995).

29. Lord Chancellor's Department Who Decides? Making decisions on behalf of ‘mentally incapacitated’ adults (London: The Stationery Office, 1997).

30. Re SA, above n 17, at [120]–[121] per Munby J.

31. Re G, above n 18, at [22] and [41]–[42] per Bennett J.

32. Ibid, at [70] and [73] per Bennett J.

33. Re SA, above n 17, at [83] per Munby J.

34. Department of Health No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse (London: Department of Health, 2000). This guidance document was issued under s 7 of the Local Authority Social Services Act 1970.

35. A parallel document was introduced in July 2000 for Wales: National Assembly for Wales in Safe Hands: Implementing adult protection procedures in Wales (Cardiff: National Assembly for Wales, 2000).

36. No Secrets, above n 34, at para 6.21.

37. Ibid, at para 6.2.

38. Ibid, at para 6.21.

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)) 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).

46. Ibid, ss 17(1) and 17(2).

47. Ibid, s 17(4).

48. The leading case here is Re C (Refusal of Medical Treatment) [1994] 1 All ER 819, and this position is codified in the Mental Capacity Act 2005, s 2(3).

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

50. Singer J states that arranged marriages are to be respected and supported as a conventional concept in many societies (Re SK, above n 11, at [7] per Singer J). This point is reiterated by Munby J in Re SA, above n 17, and NS v MI [2007] 1 FLR 444, where the distinction between arranged marriage and forced marriage is also considered at length. In addition, the Forced Marriage (Civil Protection) Act 2007 introduced civil remedies to protect victims of forced marriages, or those threatened with forced marriage. The Act introduced a court-issued ‘forced marriage order’, which can contain provisions that the court deems appropriate, including measures such as the confiscation of a passport or restrictions on contact with the victim.

51. Clarke, HF and Driever, MJ Vulnerability: the development of a construct for nursing’ in Chinn, PL (ed) Advances in Nursing Theory Development (Maryland: Aspen, 1993) pp 207220.

52. J Spiers ‘New perspectives on vulnerability using emic and etic approaches’ (2000) 31(3) Journal of Advanced Nursing 715–721.

53. D Sellman ‘Towards an understanding of nursing as a response to human vulnerability’ (2005) 6 Nursing Philosophy 2–10. Here, vulnerability is acknowledged as a defining feature of humanity, but recognition is also made that, at certain times, in non-everyday ways, individuals will become ‘more-than-ordinarily vulnerable’.

54 See, for example, Aday, LA At risk in America: The health and health care needs of vulnerable populations in the United States (San Francisco: Jossey-Bass, 2001).

55. Spiers, above n 52, at p 718.

56. Ibid, at p 719.

57. May, R Love and Will (New York: Dell Publishing Company, 1969),quoted in B Hoffmaster ‘What does vulnerability mean?’ (2007) 36(2) Hasting Center Report 44.

58. J Runquist and PG Reed ‘Self-transcendence and well-being in homeless adults’ (2007) 25(1) Journal of Holistic Nursing 5–13; PS Jones, XE Zhang and AI Meleis ‘Transforming vulnerability’ (2003) 25(7) Western Journal of Nursing Research 835–853.

59. D Dudzinski ‘Compounding vulnerability: Pregnancy and schizophrenia’ (2006) 6(2) The American Journal of Bioethics W1–W14.

60. P Haidet, KJ O’Malley, BF Sharf, AP Gladney, AN Tran, AJ Greisinger, CM Ashton and RL Street Jr ‘Associations between the impact of terrorism and health perceptions of patients’ (2005) 35(3) The International Journal of Psychiatry in Medicine 249–258.

61. Re G, above n 18, at [13], [23]–[24] and [67] per Bennett J.

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

63. Ibid, at [14]–[15] per Munby J.

64. Mental Capacity Act 2005, s 1.

65. Law Commission Mentally incapacitated and other vulnerable adults: Public law protection – Consultation Paper 130 (London: Law Commission, 1993).

66. Ibid, at para 1.6.

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.

75. Ibid, at para 2.29.

76. Law Commission Mental Incapacity – Law Commission Report 231 (London: Law Commission, 1995).

77. Ibid, at p 159.

78. Ibid, at p 163.

79. P Slater ‘Preventing the abuse of vulnerable adults: Social policy and research’ (2001) 30(4) Journal of Social Policy 673–684.

80. Lord Chancellor's Department Who Decides? Making decisions on behalf of mentally incapacitated adults (London: HMSO, 1997).

81. Lord Chancellor's Department Making Decisions: The government's proposals for making decisions on behalf of mentally incapacitated adults (London: HMSO, 1999).

82. Department of Health Independence, Choice and Risk: A guide to best practice in supported decision-making (London: Department of Health, 2007); ;

83. See, for example, two recent reports by the Commission for Healthcare Audit and Inspection: Joint investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust by the Commission for Social Care Inspectorate and the Healthcare Commission (London: Commission for Healthcare Audit and Inspection, 2006), and Investigation into the services for people with learning disabilities provided by Sutton and Merton Primary Care Trust (London: Commission for Healthcare Audit and Inspection, 2007).

84. Flynn, M The Murder of Steven Hoskin: A Serious Case Review – Executive Summary (Truro: Cornwall Adult Protection Committee, 2007).

85. Ibid, at para 7.27.

86. Ibid, at para 7.26.

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.

89. Penhale, B, Perkins, N, Pinkney, L, Reid, D, Hussein, S and Manthorpe, J Partnership and Regulation in Adult Protection: The effectiveness of multi-agency working and the regulatory framework in adult protection (London: Department of Health, 2007).

90. Mental Health Act 1983, s 1(2). The four sub-categories of mental disorder are mental illness, mental impairment, severe mental impairment, and psychopathic disorder.

91. Mental Health Act 2007, s 1(2).

92. Care Services Improvement Partnership Carer Summary – Effect of Amendments: Mental Health Act 1983 and Mental Health Act 2007 (London: National Institute for Mental Health, 2008). See website available at http://www.mhact.csip.org.uk/silo/files/sucs-carer-summary.pdf.

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.

94 See, for example, Making Health Alliance The Mental Health Act 2007: The final report (London: Mental Health Alliance, 2007).

95. Re SK, above n 11, at [9] per Singer J.

96. No Secrets, above n 34, at para 6.2.

97. Ibid, at para 6.3.

98. This position is advanced strongly in J Williams ‘Public law protection of vulnerable adults: The debate continues, so does the abuse’ (2002) 2(3) Journal of Social Work 293–316; Penhale et al, above n 89.

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.

101. See, for example, RM Gordon ‘Adult protection legislation in Canada: Models, issues, and problems’ (2001) 24 International Journal of Law and Psychiatry 117–134.

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

* This paper forms part of an ongoing project into the legal, ethical and practical aspects of substitute decision-making in England and Wales. We would like to thank the other members of the project's Steering Group, Dr Jennifer Clegg, Professor Michael Gunn, Dr John McMillan and Dr Marcus Redley for their contributions to the ideas presented here. We would also like to acknowledge the support of the Wellcome Trust, which funds the project through a Biomedical Ethics Studentship awarded to the first author. Finally, we would like to express thanks to Dr John Coggon and the two anonymous reviewers for their interesting and helpful comments.

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