Mental Capacity Act Conference 2019 Adult Safeguarding and

Mental Capacity Act Conference 2019 Adult Safeguarding and Coercive Control Karen Maher – Business Manager DSAB Katie Bielec – Service Manager, The You Trust Verena Cooper – DSM Dorset Clinical Commissioning Group

What is adult safeguarding? Adult safeguarding means protecting people’s right to live in safety, free from abuse and neglect. It applies to adults with care and support needs who may not be able to protect themselves.

Care Act 2014 The Care Act sets out local responsibilities and roles for protecting adults with care and support needs from abuse or neglect for the first time in primary legislation. The duty applies to an adult who: *has needs for care and support (whether or not the local authority is meeting any of those needs) *is experiencing, or is at risk of abuse or neglect and. *as a result of those care and support needs is unable to protect themselves from either the risk of, or experience of abuse or neglect. Introduced the concept of ‘Making Safeguarding Personal’

Six Safeguarding Principles Empowerment supported and encouraged to make own decisions Accountability accountability & transparency in delivering safeguarding. Prevention - better to take action before harm occurs. Partnership - solutions through services with local communties. Protection - support & representation for those in greatest need. Proportionate - the least intrusive response to the risk presented.

• Risk is dynamic • Risk can never be eliminated • Assessment of risk will be integral to achieving an outcome • Identifying risk carries a duty to do something about them • Specific circumstances of the individual must be considered • Defensible (not defensive) decisions are based on clear reasoning and evidence. Identifying risk (Morgan, 2013)

Judge Munby “What good is it making someone safer if it merely makes them miserable? ”

“A great judge once said, “all life is an experiment, ” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable? ” Local Authority X v MM & Anor (No. 1) (2007)

The crossgovernment definition of domestic abuse: Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can include but is not limited to the following types of abuse: • psychological • physical • sexual • financial • emotional • Controlling behaviour is: • a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive Behaviour • An act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. • This definition, which is not a legal definition, includes so called 'honour' based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.

Domestic Abuse Bill 2019 Focus on • Partnership Bill being consulted on in parliament before being enacted later this year New Legal Definition for Domestic Abuse – includes Economic Abuse working • Supporting children and Young People • Coercive and controlling behaviour • Prevention and Early Help • Holding Perpetrators to account Improving statutory agencies response to domestic abuse (Statutory Guidance) • Identify • Assess • Respond New DA Commissioner • Audit role • Provision and best practice • Working with people who have experienced domestic abuse so their voices are heard

Serious Crime Act 2015 – Coercion and Control i) Behaviour on the part of the perpetrator which takes place ‘repeatedly or continuously’; ii) That had a ‘serious effect’ on the victim; meaning that it has caused the victim to fear violence will be used against them on ‘at least two occasions’, or it has had a ‘substantial adverse effect on their day to day activities’ AND iii) The alleged perpetrator must have known that their behaviour would have a serious effect on the victim, or the behaviour must have been such that he or she ‘ought to have known’ it would have that effect.

Impact of coercive control • • Their everyday behaviour regulated. Coercive control creates invisible chains. The victim can become isolated from support. A persons independence will be taken away from them. It is designed to make a person dependent on the perpetrator. There is a sense of fear that pervades all elements of a victim’s life. Experts like Evan Stark liken coercive control to being taken hostage. As he says: “the victim becomes captive in an unreal world created by the abuser, entrapped in a world of confusion, contradiction and fear. ”

Mental Capacity – key question Key question – • Does the adult at risk from Domestic Abuse/ Coercive Control have the mental capacity to make relevant decisions about their safety and the support they want? • Individuals can make ‘unwise decisions’ (e. g. to stay in an abusive relationship) but this does not mean they lack capacity.

Legal responses landscape is complex and covered by a range of legislation… Common Assault & Battery (Criminal Justice Act 1988 s 39) False Imprisonment Rape (Sexual Offences Act, 1956, 2003, s 1) (Common Law) Threats to Kill Sexual Assault (Sexual Offences Act 2003, s 3) Harassment, alarm and distress (Public Order Act 1986 s 4 A, amended Protection of Freedom Act 2012) Fraud (Fraud Act 2006) Stalking (Protection from harassment Act 1997 s 2 A amended Protection of Freedom Act 2012) (Offences Against the Person Act 1861 s 16) Ill treatment &/or wilful neglect of a person lacking mental capacity (Mental Capacity Act 2005, s 44)

Legal Responses – Civil responses Domestic Violence Protection Notices (DVPN’s) Domestic Violence Protection Orders (DVPO’s) Forced Marriage Protection Orders Restraining Orders Domestic Violence Disclosure Scheme Non-

A’s 'substantial adverse effect on B’s usual day-to-day activities ' may include, but is not limited to: • Stopping or changing the way someone socialises • Physical or mental health deterioration Coercive control – Reasonable cause to suspect • A change in routine at home including those associated with mealtimes or household chores • Attendance at college/ day centre • Putting in place measures at home to safeguard themselves or their children • Changes to work patterns, employment status or routes to work • For purpose of the offence, An ‘ought to know’ that which a reasonable person in possession of the same information would know (s 76) Serious Crimes Act (taken from CPS Controlling or Coercive behaviours in an intimate or family relationship https: //www. cps. gov. uk/legal-guidance/controlling-orcoercive-behaviour-intimate-or-family-relationship )

Case Law A Local Authority v DL[2011] EWHC 1022 (Fam) DL lived with parents Mr & Mrs L (aged 85 and 90) Mr L lacked capacity to make decisions about his care - moved to a care home. Mrs L - physical disability and received social care support. DL and Mrs L continued to share a home. Concerns about DL’s behaviour

Cont………. . LA worried about DL’s behaviour towards parents included – Preventing them leaving the property Physical assaults Controlling who visited, times of visits including health & social care professionals Verbal threats Attempts to coerce transferring ownership of property into DL’s name Controlling movement around the house

Actions considered… Application to Court of Protection – MCA 2005 Application for ASBO (anti social behaviour order) under Crime and Disorder Act 1998 Application under section 153 A of the Housing Act 1996

Outcome…. . Mr and Mrs L both capable of making decisions about residence and contact with DL. Mrs L wanted to maintain relationship with her son. Mrs L did not want to initiate proceedings

• numerous behaviours – threats to assault, prevent contact with friends and family, coercing into transferring money/ property, coercing Mrs L to move into residential home Also requested – But Court approved interim injunctions which restrained DL from – • Official solicitor investigate Mr & Mrs L’s true wishes and to ascertain if they were being influenced by DL. • Independent Social Work expert appointed – concluded they were unduly influenced and considered decisions compromised or prevented by DL • ‘to an extent that their capacity to make a balanced and considered decisions is compromised or prevented’ but that ‘a cessation in DL’s abusive behaviour would lead to them regaining capacity’

Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) FD – 18 year old woman. Case Law History of psychiatric problems and a borderline Learning Disability LA wanted to stop much older male friend DA(known criminal and drug user) and her father AD from having contact with her or going to her home. History of abusing her e. g. encouraging her to take drugs, including heroin

Court instructed expert psychiatric evidence. Cont……. Found that she was an extremely vulnerable person, Lacked capacity to manage her finances but……. Could make decisions about who to have contact with.

Specific question of contact with DH and AD was heard by the High Court The High Court found that FD was at significant risk of harm from contact with DH and/ or AD Non Molestation Order was placed on both men. But…. .

also decided…. Neither the High Court or the Court of Protection has the power to order the arrest of anyone breaching a non molestation order.

Case Study • Discuss in small groups your thoughts regarding the information provided. • Who you might speak to? • What actions you might you consider taking take?

Making decisions about capacity in context of coercion (http: //coercivecontrolripfa. org. uk) • The LA, and the Court, are the person’s ‘servant, not their master’. • Must ensure the person is empowered to make their own decisions wherever possible, and where not possible, use the less restrictive option. • The person does not have to prove to a professional they have capacity. • Remember ‘causal nexus’ – the inability to carry out 4 steps necessary to make a decision must be clearly demonstrated as being because of the impairment or disturbance in the functioning the of mind or brain. • Do everything practicable to empower someone to make their own decisions. • Seek legal advice

Critical skills and support

Inherent Jurisdiction • In extreme cases, where there is a risk to life and where all other legal and support avenues have been exhausted, an application can be made to invoke the inherent jurisdiction of the High Court. • Courts will always strive not to undermine the Principles outlined in the Mental Capacity Act. • Intervention must be necessary and proportionate.

Adults have a general right to independence, choice and self-determination including control over information about themselves. It is good practice to try to gain the person’s consent to share information. In the context of adult safeguarding these rights can be overridden in certain circumstances. Sharing Information The law does not prevent the sharing of sensitive, personal information within organisations. If the information is confidential, but there is a safeguarding concern, sharing it may be justified. The law does not prevent the sharing of sensitive, personal information between organisations where the public interest served outweighs the public interest served by protecting confidentiality – for example, where a serious crime may be prevented. Information can be shared lawfully within the parameters of the Data Protection Act 2018 and the General Data Protection Regulation (GDPR). As long as it does not increase risk, practitioners should inform the person if they need to share their information without consent.

There a number of circumstances where the practitioner can reasonably override a decision by the individual to not share information, including: the person lacks the mental capacity to make that decision – this must be properly explored and recorded in line with the Mental Capacity Act staff are implicated the person has the mental capacity to make that decision but they may be under duress or being coerced other people are, or may be, at risk, including children a serious crime has been committed the risk is unreasonably high and meets the criteria for a Multi. Agency Risk Assessment Conference. sharing the information could prevent a crime the alleged abuser has care and support needs and may also be at risk a court order or other legal authority has requested the information.

References/ Resources • Research in Practice for Adults • Community Care Inform Adults • Social Care Institute for Excellence • Joseph Rowntree Foundation www. ripfa. org. uk https: //adults. ccinform. co. uk/ www. scie. org. uk www. jrf. org. uk Thank you for listening

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