Scope of this chapter
The guide has been created to provide information on legal options for gaining access to people who fulfil the criteria for an adult at risk where access is restricted or denied. It is intended as a source of ready reference in situations of uncertainty, rather than as a learning tool, laying out the potential routes to resolution. It is important that frontline staff and their managers are as clear as possible on which legal powers or options apply to which situations, and in cases of any uncertainty that they consult their senior managers, and/or their legal department.
Key Messages:
- Under Section 42 of the Care Act 2014, local authorities have a duty to make, or cause to be made, enquiries in cases where they reasonably suspect that an adult with care and support needs is experiencing, or is at risk of, abuse or neglect, and, as a result of those needs, is unable to protect themselves from this actual or risk of abuse and neglect;
- This duty to make or to cause adult safeguarding enquiries to be made does not provide for an express legal power of entry or right of unimpeded access to the adult who is subject to such an enquiry. Instead, there are a range of existing legal powers which are available to gain access should this be necessary;
- The powers which may be relevant to adult safeguarding situations derive from a variety of sources including the Mental Capacity Act 2005 (MCA), the Mental Health Act 1983 (MHA) and the Police and Criminal Evidence Act 1984 (PACE), along with the common law including the inherent jurisdiction of the High Court and common law powers of the police to prevent or deal with a breach of the peace;
- Whether it is necessary to seek legal intervention and which powers would be the most appropriate to rely on in order to gain access to an adult to assess any safeguarding risk or otherwise protect an adult will always depend on the individual circumstances of the case.