Jaime Lindsey, School of Law January 2016 Vulnerable Adults and the Care Act 2014: An Opportunity for a New Approach? Jaime Lindsey, School of Law January 2016

Overview Vulnerable adults Care Act and Inherent Jurisdiction Case law - Local Authority X v MM [2007] EWHC 2003 (Fam) and Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam)

The Meaning of Vulnerability Martha Fineman - “a state of constant possibility of harm” (The Vulnerable Subject: Anchoring Equality in the Human Condition) Inherent vulnerabilities – inherent or internal to the individual, such as biological sex, mental illness Situational vulnerability - the social and environmental conditions (Mackenzie, Rogers and Dodds (Eds) Vulnerability: New Essays in Ethics and Feminist Philosophy)

The Meaning of Vulnerability - Safeguarding No Secrets defined vulnerable adult as one “who is or may be in need of community care services by reason of mental or other disability, age or illness” “The term ‘adult at risk’ has been used in this policy to replace ‘vulnerable adult’. The term ‘vulnerable adult’ may wrongly imply that some of the fault for the abuse lies with the adult abused” Office of the Public Guardian Safeguarding policy 2013

Legal Frameworks (1) Mental Capacity Act 2005 Section 2(1) “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain”.

Legal Frameworks (2) Inherent Jurisdiction is common law power of the High Court Judges retained power to intervene in lives of “vulnerable adults” Inherent Jurisdiction can be invoked even where MCA says they have full capacity

Legal Frameworks (3) Care Act 2014 Section 42(1): (a) has needs for care and support (whether or not the authority is meeting any of those needs) (b) is experiencing, or is at risk of, abuse or neglect, and (c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

Legal Frameworks (4) Care Act 2014 Care and Support statutory guidance 2014 para 14.20: “The requirement to apply the MCA in adult safeguarding enquiries challenges many professionals, particularly where it appears someone has capacity for making decisions that nevertheless results in them being abused or neglected” Most common abuse caused by husbands and live in partners (Martin et al 2006, Plummer and Findley 2012)

Applying Vulnerability Through the Law Local Authority X v MM [2007] EWHC 2003 (Fam) Had capacity to consent to sex Inherent Jurisdiction used to limit contact with abusive sexual partner Focus on restricting her abusive partner’s behaviour rather than her own

Applying Vulnerability Through the Law Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam) 17 year old, vulnerable victim of child sexual exploitation by multiple older men No criminal action taken against the men Court ordered an injunction against the perpetrators from contacting her

Concluding Thoughts Care Act provides better approach to vulnerable adults – move from internal to external Missed opportunities to extend or clarify legal powers to intervene

Questions/comments Thank you for listening! Contact me at j.t.lindsey@bham.ac.uk