Report on the Review of the Mental Health (Scotland) Act 1984

Section 4 SAFEGUARDS FOR VULNERABLE PEOPLE

Chapter 19

PROTECTION OF VULNERABLE ADULTS

Vulnerable adults

1. The main provisions in the 1984 Act, which are intended to protect mentally disordered people from abuse and neglect, are those relating to guardianship (sections 36 to 52). These will be superseded by the guardianship provisions of the Adults with Incapacity (Scotland) Act 2000 when these provisions come into effect. However, the 1984 Act also contains, in Section 117, provisions for emergency interventions, where there is reason to believe that a mentally disordered person is being ill treated or neglected, or is without adequate care.

2. There are also separate provisions in Section 47 of the National Assistance Act 1948 to remove vulnerable adults to a place of safety. These do not apply only to people with mental disorder, but they could be used in a case of, for example, an elderly person where mental disorder is suspected.

3. Section 117 of the 1984 Act confers a power on a mental health officer (MHO) or a Medical Commissioner of the Mental Welfare Commission, to take action if they have reasonable cause to believe that a person suffering from mental disorder is suffering ill-treatment or neglect or is being kept "otherwise than under control", or else is living alone or uncared for and is unable to care for him or herself. The power allows the MHO or Medical Commissioner to demand entry to premises and to inspect them if admission is not refused. If admission is refused or anticipated, a justice of the peace, sheriff or stipendiary magistrate may issue a warrant authorising a named constable to enter, if need be by force, and to remove the person to a place of safety with a view to the making of an emergency recommendation or an application for admission under Part V of the Act. The constable must be accompanied by a doctor. The patient once removed can be detained in a place of safety for up to 72 hours. "Place of safety" is not intended to include a police station unless in an emergency there is no other suitable place.

4. Section 117 is open to a number of criticisms. First of all it does not cover all situations where someone vulnerable through mental disorder may be difficult to access at home. There is no power to remove the person if access is granted to see the person, even although there may be grounds to suspect abuse. Where a vulnerable person is being abused or exploited the only remedy is to remove the person to a place of safety. The power must be exercised by a 'named constable', which brings operational problems. There is no power to exclude the abuser. The power is rather "all or nothing" in character, failing to allow for grades of intervention.

5. The National Assistance Act 1948, s47, as amended by the National Assistance (Amendment) Act 1951, provides a power to remove from home to a hospital or other place a person suffering from chronic disease who lacks proper care and attention. This power is exercisable by the local authority after the granting of an order by a sheriff. This is an out-dated provision which has no express right of appeal and the expedited procedure normally used allows removal on an order from the sheriff which is granted without the person being given an opportunity to oppose it. People removed to hospital under this provision do not have the safeguards contained in the Mental Health Act applied directly to them. It has been suggested that the procedure is probably in breach of the European Convention on Human Rights¹. The power is hardly ever used, and we believe it should be repealed so far as it applies in Scotland.

6. In 1993, the Scottish Law Commission (SLC) issued discussion paper No 96 "Mentally Disordered and Vulnerable Adults: Public Authority Powers". In 1997 it went on to publish its Report on Vulnerable Adults², which included a draft Vulnerable Adults Bill. The Scottish Executive has not to date expressed any legislative intention in relation to this.

7. The Scottish Law Commission Report proposes a new range of graduated interventions to a group whose vulnerability extends beyond that associated with mental disorder. While mental disorder is likely to be the predominant condition associated with vulnerability, the provisions would also apply to those vulnerable through age or infirmity. The Mental Welfare Commission's role under the provisions however would apply only to those whose vulnerability is associated with mental disorder.

8. A vulnerable adult is defined as an adult who is unable to safeguard his or her personal welfare, property or financial affairs and is:

• in need of care and attention arising out of age or infirmity, or
• suffering from illness or mental disorder, or
• substantially handicapped by any disability.

9. The proposals would create a new statutory duty for local authorities to inquire as to whether steps need to be taken to protect the welfare or property of adults who are or whom they believe to be, vulnerable.

10. Interventions would only be authorised in the face of the adult's objection if those authorising or carrying out the intervention reasonably believe that the adult is vulnerable and is either mentally disordered or subject to undue pressure. Local authorities are given the primary role in dealing with vulnerable adults but the Mental Welfare Commission is also entitled to act if necessary.

11. The report envisages a staged set of interventions. These include:

• a right to demand admission to premises
• a right of forcible entry under warrant
• a power to interview and medically examine the vulnerable adult
• a power to inspect documents
• a power to remove the vulnerable adult to a specified place for up to 7 days
• a power to exclude a suspected abuser from the home of a vulnerable adult in certain situations.

12. More serious interventions can only be undertaken with the approval of the sheriff and there are procedures for representation to be made, except in emergency cases.

13. The complete list of recommendations is given at Annex 9.

14. We found strong support for the SLC proposals. In our second Consultation, we proposed that they be incorporated in the new Mental Health Act, insofar as they applied to people with mental disorder. This suggestion was supported by almost everyone who responded on this point.

15. We are satisfied that the current provisions in Section 117 and Section 47 of the 1948 Act, do require to be reformed, and that the SLC proposals offer a comprehensive and well considered set of proposals for such reform. Having considered the recommendations, we believe that they should be implemented, with only minor adjustments.

16. The SLC proposals include people who are not mentally disordered. It would be beyond our remit to make firm recommendations in relation to this broader group. We do wish to see the recommendations implemented for people with mental disorder. It will be for the Executive and Parliament to decide if others should also be included.

17. The decision as to the scope of the legislation would affect the legislative vehicle which should be used for its implementation. If it is decided to confine the implementation of the Report to adults with mental disorder, we believe that this should be done within the new Mental Health Act. If a wider group is chosen, this may be inappropriate. However, we believe that, ultimately, the range of provisions for mentally disordered, vulnerable and incapable adults should be brought together within a comprehensive framework. (See Chapter 2.)

18. The SLC proposals incorporate the definition of mental disorder contained within the 1984 Act. We propose that this be replaced by the definition of mental disorder which we set out in Chapter 4. Where the 'nearest relative' is mentioned, this should be replaced by the arrangements we outline in Chapter 16 for a 'named person'.

19. Recommendation 11 of the SLC report proposes a power to remove the vulnerable adult from home for a specified period not exceeding seven days. We considered whether this should be restricted to 72 hours, in line with emergency detention under mental health law. On balance, we have concluded that the seven day period should remain. Unlike emergency detention, there will have been prior approval by a judicial body. The next step following removal from home may be to seek an order under the Adults with Incapacity (Scotland) Act, or to follow the procedures under the Mental Health Act, including where necessary procedures for detention under that Act, and this may require more than 72 hours to arrange.

20. We would envisage, where measures under the Mental Health Act are thought necessary, that arrangements would be made to proceed to short term (28 day) detention.

21. There are some changes that will require to be made to the SLC proposals to reflect the introduction of the Adults with Incapacity (Scotland) Act 2000. For example, the references to curators bonis would be replaced by guardians.

22. A number of the proposals of the SLC involve proceedings before a sheriff. For example, the sheriff considers whether to grant an order authorising a private interview and private examination by a doctor (Recommendation 9), and also considers orders authorising the removal of an adult (Recommendation 11). Where hearings take place, the procedures should be broadly consistent with the recommendations we make in relation to reviews of compulsory measures of care (see Chapter 9). In particular, there should be automatic legal representation, and hearings should be held in private, unless the adult or the adult's representative requests otherwise. On balance, we believe that the sheriff should be retained for hearings under the provisions for vulnerable adults, and not be replaced by a mental health tribunal, as we recommend for other mental health hearings. However, if a mental health disposal is subsequently considered necessary, then the normal procedures under the Mental Health Act would apply.

23. Recommendation 21 proposes a Code of Practice. This should be subsumed into the Mental Health Code of Practice (see Chapter 36).

Ill treatment and neglect

24. Section 105 of the 1984 Act makes it an offence for a member of staff of a hospital or nursing home to wilfully neglect or ill treat a patient, for a guardian to ill treat someone under their guardianship or for anyone to ill treat someone subject to a community care order. Once the Adults with Incapacity (Scotland) Act 2000 is implemented, the reference to guardianship will be deleted. There is a new offence in s83 of that Act, relating to ill-treatment and wilful neglect by anyone exercising powers under the Act relating to the personal welfare of an adult.

25. The rather selective provision in the 1984 Act would not protect people living in supported accommodation, residential care homes, people on leave of absence or people attending day services run by the local authority. As we go on to discuss, there is a more sweeping provision later in Section 105, which applies to anyone who ill-treats or neglects a person 'in his custody or care'. Nevertheless, we feel that the particular staff/service user relationships which are spelled out in s105 should be brought up-to-date.

26. We are informed that there has been one conviction under s105 in the last 5 years. However, we received evidence that the provision is regarded as an important safeguard, striking at a breadth of conduct which would include wilful neglect but also including conduct which might not amount to, for example, an assault.

27. In our first Consultation, people were asked whether any special protections were needed for people with mental disorders or whether this could be left to the general criminal law. There was considerable support for the abuse of a mentally disordered person to be a specific criminal offence.

28. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) said that it should be an offence if professionals abuse their position of authority and ill treat their patients or clients and that this should cover physical, sexual and financial abuse. Others said that the principles of normalisation would suggest that the general criminal law should be used, but pointed out the difficulty of obtaining evidence from vulnerable people. The rules of evidence might need to be relaxed. The Greater Glasgow Primary Care NHS Trust suggested that a lower standard of proof might be required. These are matters which we understand the Scottish Executive will be taking forward in their current review of vulnerable witnesses, which we discuss later in this chapter.

29. We believe that a special offence to protect people with mental disorder is justified. In many cases of abuse, the behaviour would be a crime at common law, such as assault. However, some mentally disordered people are particularly vulnerable, and could be victimised by behaviour which would not be a crime when done to another adult. It would be almost impossible to compile a comprehensive list of such behaviour, but it might include failure to ensure the person was adequately fed, or verbal intimidation.

30. The statutory offence would be mainly directed at members of staff abusing persons in their care. It should apply to the full range of care settings, and be flexible enough to accommodate developments in the provision of care.

31. Section 105 is not however solely directed at staff, but includes anyone who has a mentally disordered person in his or her "custody and care". This could potentially include family members and informal carers.

32. This is an extremely difficult and sensitive area. Family carers are taking responsibility for the welfare of another adult. They may feel a strong moral obligation, but have no legal obligation to do so. Many carers live under conditions of extreme stress; often with inadequate support, and sometimes caring for a person who may not appreciate the carer's efforts, or even be actively hostile to them. Large numbers of carers are themselves elderly or disabled.

33. There may be concern that a criminal charge could be brought where a carer has simply failed to cope under intolerable pressure. Even when this does not happen, the fact that such a charge may be feared could lead carers to fail to seek support, or disclose difficulties, for fear of prosecution for neglect.

34. Against that, it is clear that the current statutory offence is rarely, if ever, used against informal carers and family members. We do not foresee that this is likely to change. The same objections to the statutory offence could be made in relation to offences which are crimes at common law, such as assault. It has not been suggested that these crimes should not apply in principle to carers. Finally, the law protects others who are vulnerable, particularly children, from ill treatment and neglect.

35. We consider, therefore, that the offence of ill treatment and neglect should continue to be potentially applicable to all situations where a mentally disordered person is in the care of others. We considered whether the statutory provisions should seek to identify all the potential situations where a person has some responsibility for the welfare of a mentally disordered adult, and where abuse or neglect of that responsibility would be so serious as to justify a criminal charge. We decided it would be better to set the offence out in broad terms, and to allow the courts to apply these to individual situations as appropriate. This approach is consistent with the tradition of Scots law. It also reduces the risk that, as has happened with s105, the provisions become out of date as patterns of care change. It should only apply where someone in a position of power over another abuses that power, as in the case of a member of staff abusing a person in his or her care.

36. We do not envisage for example, a family member whose relative has broken off contact or refused help, being prosecuted for neglect. We also recognise that the obligation on carers not to wilfully ill-treat or neglect the vulnerable adult is balanced by a legitimate expectation that society will not allow the carers' task to become intolerable. We discuss the rights of carers further at Chapter 16.

Protection for staff and carers

37. Section 122 of the 1984 Act provides that no person will be liable to criminal prosecution for any acts they perform in carrying out their duties under the Mental Health Act, unless it can be shown that they acted in bad faith or without reasonable care. This would mean that if, for example, staff restrained a patient who was being detained under the Act, they would not normally be liable to be prosecuted for assault.

38. On consultation, many respondents stressed the need to have proper policies on the use of and reporting of restraint, but many felt that staff should be protected if they are doing their job. It was not unusual for people with dementia, for example, to make false accusations. Whilst these should be investigated, staff need protection.

39. On the other hand, it is not clear that staff require special protection which is not available to others, including informal carers. The protection is also not entirely clear in its effect. Staff are not employed 'under the 1984 Act', and it is by no means clear what activities by staff could be said to be carried out under that Act, as opposed to some other authority.

40. We have concluded that prosecution or civil action would be unlikely to be successful in cases other than those of bad faith or lack of reasonable care, in any case. Nevertheless, to express this in the Act provides useful reassurance for staff. We, therefore, believe that a special reference should be retained. We also propose that the defence be explicitly extended to the offence of wilful ill treatment and neglect, discussed above. This may serve to reassure informal carers that they are not at risk from inappropriate legal action.

Obstruction

41. Section 109 of the 1984 Act makes it an offence to refuse to allow access to any premises or individual by a person authorised in that behalf by or under the Act.

42. We received little evidence relating to this section. It would appear that it is very rarely, if ever, used. Nevertheless, we believe that it should be retained, as a safeguard. The Mental Welfare Commission has indicated that the provision can be useful in reminding people of the importance of allowing access by the proper authorities to individuals who may be vulnerable by reason of mental disorder.

43. Recommendation 22 of the Scottish Law Commission Report on Vulnerable Adults proposes that it should be an offence for any person, other than the vulnerable adult concerned, to obstruct or hinder a duly authorised person from the local authority or Mental Welfare Commission in carrying out the functions recommended in that Report in relation to that adult. If, as we recommend, the Vulnerable Adults proposals are implemented, this offence should be consolidated with the offence of obstruction currently in s109.

44. Recommendation 22 excludes the vulnerable adult from the potential commission of an offence. There is no such exclusion in s109. This could in theory mean that a mentally disordered person could be charged for refusing to allow entry to his or her home. We do not believe this would be desirable, and we recommend that the offence of obstruction should not be capable of being committed by the mentally disordered person who is the subject of proceedings under the Act.

Vulnerable witnesses

45. Provision has been made for vulnerable witnesses in s271 of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. This allows evidence to be taken by video link, or behind screens. The issue of vulnerable witnesses was not a matter which we could consider in detail. We are pleased to note, however, that it is under separate consideration by the Scottish Executive. In the 'Towards a Just Conclusion Action Plan' published in June 2000, the Executive has undertaken to improve arrangements for the identification of vulnerable witnesses, and to invite the Criminal Court Rules Council to prepare rules relating to the operation of s271. Further research into the experience of vulnerable witnesses is also under consideration.

46. There is one aspect of s271 which particularly concerns us, namely the definition of 'vulnerable witness'. This includes any person who 'appears to the court to be suffering from significant impairment of intelligence and social functioning', which would cover a person with a significant learning disability. However, for other kinds of mental disorder, it is necessary for the person to be 'subject to an order made in consequence of a finding of a court... that he is suffering from mental disorder within the meaning of section 1(2) of the Mental Health (Scotland) Act 1984', or the comparable legislation in England, Wales and Northern Ireland. This would mean that a person who is detained under the Act would be entitled to be treated as a vulnerable witness, but a person who is a voluntary patient, who may be equally, or even more, affected by mental illness, would not be so covered.

47. We see no justification for this distinction. It is not for us to say how the Executive should define vulnerable witnesses, outwith the field of mental disorder. However, if it is felt necessary to have a definition of mental disorder as a qualifying criterion for consideration as a vulnerable witness, it should simply be a broad definition, such as that we propose at recommendation 4.2 for the Mental Health Act. The court would then have the discretion to consider whether the person required special measures, in the light of that mental disorder, and any other special circumstances.

The information contained on this WWW site is Crown Copyright but may be reproduced without formal permission or charge for personal or in-house use. © 1997-2001. For general enquiries about this section email mentalhealthlawmailbox@scotland.gsi.gov.uk