What happened to the safeguarding power of entry?

The new power was proposed after it became apparent that an existing power, contained in section 47 of the National Assistance Act 1948, was no longer tenable.

The section 47 power permits certain people, who are in need of care and attention, to be removed to a place of safety and kept there in their own interests. In 2000, the Department of Health (DoH) said its use would now breach the ECHR.

Repeal recommended

During its recent appraisal of adult social care law, the Law Commission recommended that section 47 be repealed (2011, Adult Social Care, Law Com No 326, HC 941, Recommendation 42).

The commission said that generally, the circumstances in which the power was used were now better covered by other, more modern legislation (ibid, paragraph 9.82). But it warned that without section 47, authorities would be powerless to intervene where someone:

n is of unsound mind, but cannot be detained under the Mental Health Act 1983;

n having capacity to do so, makes a decision to live in insanitary conditions (that aren’t covered by public or environmental health powers); and

n is neither receiving nor able to give himself proper care and attention.

The government accepted the recommendation concerning section 47 and said it would consult on whether a new power should be introduced in its place.

Abuse or neglect

At the beginning of the promised consultation, the DoH said that any new power of entry would apply only where “a person with capacity is experiencing abuse or neglect” (2012, Consultation on New Safeguarding Power, paragraph 9).

The results were that 90 per cent of health respondents and 72 per cent of local authority respondents favoured a new power. Although, among individuals, some 77 per cent opposed a new power, there were only 23 of them.

The government, however, considered this “highly significant”, and it noted that “members of the public were far more strongly against the proposal compared to health and social care professionals.” “It is clear”, the government concluded, “that some people perceive themselves at greater risk of unwanted intervention by social workers than of abuse in their own home”. There would be no new safeguarding power of entry.

Festering cesspool

So: the views of individuals who opposed a new power were allowed to outweigh those of the majority of respondents.

It is certainly true that many of those individuals expressed themselves trenchantly. One wrote: “No more Gestapo powers for the festering cesspool of incompetence that is local government.”

These were the comments of a small minority of respondents. Some of them betray real and possibly willful misunderstandings of the law; and some, frankly, seem wrong-headed in the extreme.

That raises a rather uncomfortable question: how bizarre may a response be before it fatally undermines the cause in which it is advanced?

Disingenuous

The decision to repeal section 47 and not replace it with a similar power will do nothing to remedy the deficiency the LC identified.

The inherent jurisdiction of the High Court might offer a solution of sorts, where people retain capacity to make decisions for themselves (DL v A Local Authority [2012] EWCA Civ 253). Those were, of course, the people to whom any new power would have applied.

But that cannot be a comfortable state-of-affairs for the DoH. At the beginning of the consultation, the department said:

“... we do not believe leaving such cases to be resolved on a case-by-case basis using the court’s inherent jurisdiction is a satisfactory solution” .

Yet, because of what the government has decided to do, the inherent jurisdiction will often be all that a local authority has.

A new safeguarding power was rejected because the government said the evidence was against it. That was disingenuous.

When consulted on the power, those opposed to it were greatly outnumbered by those in favour; and the evidence those opponents gave, though certainly fervent, was also far less compelling. Somehow, though, they seem to have carried the day. SJ