The Protection of Vulnerable Adults in a Healthcare Setting in the United Kingdom
Contents
Summary 2
Chapter 1, Introduction 3
Chapter 1.1 Vulnerable Adults 3
Chapter 1.2 Defining Capacity 4
Chapter 1.3 Action to be taken 4
Chapter 1.4 Recent Findings 6
Chapter 2, Definitions 9
Chapter 3, Duty of Care 18
Chapter 3.1 Level of Abuse 19
Chapter 3.2 Failure of duty to care 20
Chapter 4, Local Authority Provision 22
Chapter 4.1. Responsibilities 22 Chapter 5, Abuse, Abused and Abusers 23
Chapter 5.1 Definitions of Abuse, abused and abusers 23
Chapter 5.2 Physical abuse 24
Chapter 5.3 Emotional abuse 24
Chapter 5.4 Financial abuse 24
Chapter 5.5 Sexual abuse 25
Chapter 5.6 Neglect 25
Chapter 5.7 Reasons for abuse 26
Chapter 5.8 Results of abuse 27
Chapter 5.9 Legislating against abusive practices 28
Chapter 6, Degrees and Priorities in Protection 33
Chapter 6.1 Necessary Standards 33
Chapter 6.2 Priorities 35
Chapter 6.3 Options 36
Chapter 7,The History of Provision 36
Chapter 7.1 Early history 37
Chapter 7.2 Early legislation 37
Chapter 7.3 Civic Responsibility 40
Chapter 7.4 Workhouses and asylums 42
Chapter 7.5 New Attitudes 43
Chapter 7.6 20th Century 45
Chapter 8 Dealing with abusers and those who cause neglect 45
Chapter 9 Vulnerable adults and prison 48
Chapter 9.1 Women in prison 48
Chapter 9.2 Action needed 50
Chapter 9.3 Vulnerable males in prison 51
Chapter 9.4 Scottish provision for mentally disordered offenders 54
Chapter 9.5 Options available 54
Chapter 10, Staff and carers in health care settings 54
Chapter 11 Supporting the vulnerable 55
Chapter 11.1 Specialist groups and charities versus state provision 58
Chapter 12 Modern Trends 59
Chapter 12.1 Valuing People 59
Chapter 12.2 Disabled Rights Commission 60
Chapter 12.3 Accessibility 61
Chapter 12.4 Options 61
Chapter 12.5 New knowledge 62
Chapter 12.6 The most severely handicapped 62
Chapter 12.7 New methods and legislation 62
Chapter 12.8 The need for further change 63
Chapter 13 Conclusions 69
References 74
Summary
This document considers various pieces of legislation and practice in current operation within the United Kingdom that are designed to enable vulnerable adults to live their lives in peace and safety and in particular in health care situations. Consideration is also given to the response of all those involved generally and in particular cases. It will set these in the context of earlier provision and will also consider the effectiveness of legislation in practice, including the civil and criminal justice systems and victim support services, and will take into account the various remedies available, including measures that aim to achieve behavioural change by those who are guilty of abuse or neglect. Much of the legislation quoted is not healthcare specific, but nevertheless is valid as it covers people in heath care situations, not necessarily just hospital situations, but which include prisons, nursing homes, day centres and other situations. It will look at the work of various bodies, both governmental and private, and consider how they are meeting the needs of vulnerable adults, particularly in health care situations.
Chapter 1, Introduction
Chapter 1.1.Vulnerable adults are those who are unable, because they are affected by some disability or illness, physical, or mental which affects their innate ability to safeguard themselves, their property, rights or any other interests and so are rendered more at risk of harm than most of the population. In many cases this affects their capacity to make choices as mentioned in ‘Who Decides’[1]when the Law Commission sought to define intellectual capacity.
Chapter 1.2 Defining Capacity.The Law Commission considered a number of possible approaches to the definition of capacity, but favoured the “functional approach”, which at that time was the principal method used in common law. It is an approach which focuses upon the capability of a person to understand the nature of a necessary decision at the time at which it must be made. They also considered that it is concerned with their ability to comprehend both the nature of such a decsion and its implications. This functional approach means that a person may be capable of making certain decisions and not others, e.g. they can decide upon which dress to wear, but be incapable of deciding when it comes to financial decisions. This allows people as much freedom as possible in the freedom making decisions and any necessary restrictions would be dependent upon the nature and complexity of decisions that need to be made and does not exclude the making of decisions within someone’s level of competance.
The document’s compilers also considered problems of communication such as when a person would be capable of making a decision, but because of difficulties in communication is either unable to understand the information or unable to communicate their views.
They also consider whether or not a person is capable of retaining necessary information needed in order to make informed decisions, but also look at situations such as when a person, because of a mental illness, is unable to trust or believe what advisors tell them and so are rendered unable to make a proper informed decision.
Chapter 1.3 Action to be taken
The report stresses that whatever action is taken must be done with regard to a vulnerable person’s ultimate best interests, taking into account any ascertainable views , past or present, of the adult concerned. It states that there is a need to both permit and encourage the person concerned to participate as fully as is possible in decisions affecting themselves and to participate as fully as possible in anything done for and any decision affecting him or her. Also needed are the views of any other people concerned when this is appropriate and practical.
In March 2008 the United Kingdom government felt that it was necessary to launch a probe into cases of abuse of the elderly infirm in hospitals and care homes.[2] This was funded in part by Comic Relief. In the Mail’s article announcing the plans, Health Minister Ivan Lewis is reported as saying that the public’s perception of elderly abuse was many years behind their concern regarding the abuse of children :-
There is a difference between abuse and elderly people not being treated with
the dignity they deserve – but both are equally unacceptable.We do not have the
same level of outrage about elderly abuse as we do about child abuse.[3]
Speaking on behalf of Comic Relief, Gilly Green, said-
This study is an important piece of research as for the first time on this scale
we will seek to include the views of older people who – because of their frailty
or incapacity – are often unheard.[4]
When it comes to the protection of vulnerable adults there is seen to be a need to balance
rights for the autonomy of such individuals with safety issues, both theirs and that of the
public in general. To this must be added the person’s mental capability ability to take advantage of any such autonomy.
All power can be abused even if it is in only the smallest ways.The very phrase “vulnerable adult” brings to mind two contrasting images. On the one hand, we see people with learning disabilities or long term mental illness, the elderly and infirm, all those who are especially susceptible to abuse, whether that be physical or emotional in nature, or as often is the case, a combination of these two factors. On the other hand however they are also adults with the consequent rights and responsibilities that that involves, including the right , as far as is possible, to make their own decisions and lead independent lives. ‘Everyone has a right to follow a course of action that others judge to be unwise or eccentric, including one which may lead to them being abused.’ says the document ‘Safeguarding Adults’[5]( page 21) It then follows that any decisions made regarding safety issues must as far as is possible not usurp a persons rights to make their own decisions.
Chapter 1.4 Recent Findings
In 2000 the Department of Health in the United Kingdom produced the document ‘No Secrets’.[6] This paper includes the statement ‘Abuse is a violation of an individual’s human and civil rights by any other person or persons’ and it defined vulnerable adults as those members of society who ‘were unable to protect themselves from significant harm’ Since publication of this document the majority of local authorities have gone on to produce multidisciplinary and multi-agency processes in order to better co-ordinate their efforts to safeguard vulnerable adults in their area.
The provisions of ‘No Secrets’ enabled local areas to evolve procedures, as the various
partnerships grew in understanding of the work and the needs in its area.
The publication of ‘No Secrets’ was based on the premise that some adult groups, for various reasons, experience a higher prevalence of abuse and neglect than the population in general. There are aspects of these particular people and their lives that can explain this increase in their vulnerability to abuse. These include a lack of inclusion in protective social networks for example, because they have no living relations, attended special schools which segregated them from the majority of their generation from an early age, or because they are unable to take up employment or participate in sports..
They are perceived as being ‘different’ and such perceptions are often something which is often causal when it comes to abuse of any kind e.g. abuse for racial or religious reasons. Many of course are suffering from dementias from various causes, such as Alzheimer’s disease or if small blood vessels in the brain become blocked. Those over the age 65 are particularly liable to such conditions, although in some people onset may be much earlier. In some cases, for example those caused by head injuries, treatment is effective, but even if not there is treatments are available which helps with the various symptoms and so enables the person to have a better standard of life. There are medications available which can help in Alzheimer’s disease, but there is currently some controversy as to when these should be used and so they are not as generally available as they might be.
Whatever the cause of their condition vulnerable adults are dependent upon others for their needs including mobility or for access to information and control of finances and a person who is supposed to be their support may misuse their position. This dependence can also mean a lack to access to any possible remedies when they are abused or experience neglect in any form.
Even in the 21st century there remains a social acceptability in some circles for low standards of care and treatment when it comes to those who suffer from a mental disability. To this is added the dynamics of power within organizations which provide services, which means that any necessary decisions have usually been made in the past by the providers and only in some cases has there been any form of consultation with those on the receiving end.
’No Secrets’ enabled the various localities to gradually evolve their procedures as they grew in understanding of the particular requirements and work needed in their area of authority. It also acknowledges that these same people are often less able than most to access the services they need because of their various and sometimes multiple difficulties.
Such people are defined in the Mental Capacity Act of 2005[7] paragraph 2 where such individuals are described as, for the purposes of the act as a person who ‘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 a disturbance in the functioning of, the mind or brain.’
The act goes on to say that is so whether or not the ‘impairment or disturbance is permanant or temporary’.
Perhaps they cannot read the leaflets, use a telephone, get to a meeting or are even frightened of reprisals. It was designed to give ‘guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse’.[8] The various agencies had policies and practices in place, and it was the co-ordinating of these into ‘best practice’ that was necessary.
There is some contention over the phrase ‘Vulnerable Adults’ because while the phrase emphasises the fact that these people , for whatever reason, are more likely than most to experience problems, there are those who feel that it is a ‘label’ that can be misinterpreted as locating the cause of the problem with the people concerned rather than with those whose action or omission is responsible for any suffering.
Despite initiatives such as ‘No Secrets’ in June 2007, a report which recognises that
there are still major concerns relating to both the identification and the reporting of crime against vulnerable adults, the Observer newspaper carried a report of the results of a survey looking into abuse in the elderly in June 2007, [9]the first such major survey for ten years, carried out by Researchers from the King’s Institute of Gerontology in London who, funded by Comic relief and also supported by the Department of Health, spent two years collecting data on the prevalence of abuse in private homes. The work is the first research funded by Comic Relief. The writers conclude :-
There is a lack of awareness as to what constitutes abuse, as well as
inadequate knowledge of and training for key workers on identifying,
reporting and managing the abusive situations
The survey revealed that levels of abuse were much higher than had previously been anticipated with more than 700,000 people being abused in some form , despite the fact that older people are nowadays generally more visible in society as well as often being more active, and more independent than previous generations. Life expectation is greater and many remain in good health. Despite this the survey exposes a huge problem of abuse, exploitation, and neglect of older citizens and in particular this has occurred to those unable to communicate – perhaps after a stroke or because of conditions such as dementia or severe cerebral palsy. Such abuse took place in their own homes as well as in care facilities of various kinds. Care Minister Ivan Lewis, a campaigner for the dignity of older citizens , said:-
We need to have a fresh look at the whole adult protection regime in this
country. I want to see a situation where people are as outraged by the abuse
of an older person as they are by the abuse of a child. Sadly, we are nowhere
near that yet as a society, but that culture has to change.’
This is despite statements such as that included in ‘No Secrets’, the governmental guidelines on policies and proceedures to protect vulnerable adults from possible abuse, where it says in its foreword:-
The Government’s White Paper, ‘Modernising Social Services’, published at the end of 1998, signaled our intention to provide better protection for individuals
needing care and support.[10]
Kate Jopling, Help the Aged’s public affairs manager, is also quoted in the same article: –
What concerns us is how abuse can start from someone being dismissive of
an older person to increasing levels of nastiness until it actually becomes an abusive relationship, where needs are being totally ignored.
The needs of these citizens can best be met by a multidisciplinary approach as in the document ‘SafeGuarding Adults’ which includes ( page 10) [11]Primary Care Trusts, the Local Authorities, Social Services Directors, Hate Crime Partnership, Crime and Disorder Reduction Partnership, the Police Force and the Healthy Lives Partnership among others.
Chapter 2 Definitions
Abuse is the misuse of power by one person over another. It can affect someone’s independence as well as their health, as they become insecure and find themselves less able to make their own decisions.
Action on Elderly Abuse[12] works specifically to protect the aged and to prevent their abuse. They work in many ways including the training of care staff, helping them for instance to a better understanding of the nature of dementia and teach ways of communicating which use the abilities that these people still, while at the same time respecting them as individuals and raising awareness of possible problems. The group works with everyone from Care Providers to Government in order to better the lives of their particular focus group.
Adult Protection Work is a now outdated phrase relating to work with vulnerable adults.
Amicus Curiae Literally a friend of the court i.e someone who is not a party to the case. He is able to inform and advise a court about the various aspects of a case.
The Court of Protection Rules
The Court of Protection is a section of the Office of the Supreme Court. Its purpose is the administration and management of the property and affairs of those who because of mental disorder are, or have become, unable to make their own decisions regarding such affairs. The Court is empowered by various acts – The Mental Health Act 1983,[13] the Enduring Powers of Attorney Act 1985, the Court of Protection Rules 1994 and the Court of Protection (Enduring Powers of Attorney) Rules 1994.[14]
In 1994 the Court of Protection laid down certain rules. These were replaced in 2001[15] and that Act amended in 2002[16]. They deal with the appointment of people to act for those unable, by reason of their mental or physical condition, to make decisions for themselves and deal with matters such as payment for those who undertake such tasks.
Hate Crime The definition, according to the Association of Chief Police Officers is :-
‘any crime or incident where the perpetuator’s prejudice against an identifiable group of people is a factor in determining who is victimized.’[17]
Guardian ad litum A person appointed by the court to take responsibility. He will give advice about matters such as where the person concerned should live. A guardian ad litum is required to meet with the person and to make a written report of his investigations and recommendations. He may interview, by telephone or face to face, those concerned with the care of the person and the family. He can also review any medical records and request medical and mental evaluations if required.
Health Care Setting This is taken to mean any setting which is meant to be therapeutic in some way whether a hospital, nursing home or day care centre or any other such situation..
Impotent Poor An earlier term for Vulnerable Adults
Learning Disability Partnership Boards should exist in each local authority area and are
designed to improve the situation for those with learning disabilities.
The Mental Welfare Commission for Scotland[18] is an independent organisation which works for and with everyone with a mental illness, learning disability or other mental disorder, taking into consideration both their welfare and their legal rights .They are able to check whether or not an individual’s treatment is in line with current legislation as well as providing advice to both carers, other health profesionals and to service users. They provide a telephone service, but can also make visits, some planned , but others unannounced. This means that are in direct contact with both service providers and users and so discover how they feel about the service provided..They can investigate problems and ask for changes in provision where this is needed. The Commission also produces guidance regarding best practice with consideration of the legislation regarding mentla health and incapacity of various kinds. They are also influential with regard to government policy.
Learning Disability Task Force. This was initiated in 2001 after the publication of a government white paper with regard to people with learning disabilities, ‘Valuing People’. The task force’s role is to produce an annual report of how the proposal’s in the white paper are working in practise, suggesting possible changes and improvements as well as providing statistics and facts.
Neglect can mean that a person who is dependent on others for basic needs is not able to exercise choice and control over the fundamental aspects of their life. This can include everything from which clothes to wear, choice of food or how often they are taken to the bathroom. It causes humiliation and loss of human dignity.
Nursing Homes Many vulnerable adults are residents, either permanently or on a temporary basis in nursing homes. The type of care they provide does vary, some specializing in particular sectors such as those who provide convalescent care and those who care for those with severe mental disorders, in most cases in long-term care. Though respite care may also be offered. This term refers to the gamet of provision, medical, personal and social services designed to meet the physical, social, and emotional needs of the chronically ill or disabled. It provides 24 hour care including both basic care such as help with feeding and washing as well, as more specialist care from people such as registered nurses and occupational therapists and is able to call upon other profesional help when necessary.A nursing home facility may be the best choice for people who require 24-hour medical care and supervision, although of course many such people are cared for in other residential facilities.They need to be registered with the Department of Health[19] and are subject to many rules and inspections, not less than twice annually in the case of Department of Health inspections, but they are liable too to inspection by local officials such as the Public Health inspectorate and the Medical Officer of Health.
POVA The Protection of Vulnerable Adults scheme which had its beginnings in1984 and which came into full effect in June 2004 is designed to ensure protection of adults in care settings in England and Wales.[20] Under this scheme providers of residential and home care are not allowed to offer employment to people on the POVA list and those on such a list face prosecution and even a custodial sentance if they attempt to obtain care work. Stephen Ladyman, Community Care Minister, was quoted in a Guardian article of 2003 as saying :-
There will be no hiding place in the care system for people who abuse or
mistreat vulnerable adults. We want to ensure that vulnerable adults and their
families can be confident they are receiving the best and safest levels of care
possible.[21]
Safeguarding Adults means all work which enables a person who is or may be eligible for community and health care services to retain as much independence, wellbeing and choice as possible and so to enabling them to have the right to live a life that is free from abuse and neglect. The phrase replaces the earlier one ‘adult protection work ‘
Safe Guarding Adults Co-ordinator is part of the Adult Protection Team. They are professionals appointed by local authorities whose role is to do with producing statistics, policies and procedures and checking standards. They are able to advise professionals in their district and can be an independent chair person in case conferences and organize training sessions, as well as making links with and between health care trusts. Their role also covers the dissemination of information through such means as newsletters, leaflets, an accessible internet site as well as the organizing events.
The Public Trust Office is a relatively new organisation having only came into existance in January 1987. It was formed from various bodies concerned with the management of the financial affairs of certain individuals. The Mental Health Sector is divided into two sections, the Protection Division and the Receivership Division. The Protection Division deals with such matters as the registration of Enduring Powers of Attorney and, together with a reciever appointed by the courts is able to manage the financial affairs of patients. The Receivership Division’s purpose is to act as Receiver either where there is no one else to act or in cases where the Court appoints the Public Trustee to act as an independent receiver, and so be responsible a patient’s day to day requirements. In July1994 the Public Trust Office was designated as an Executive Agency in the Lord Chancellor’s Department.
The Role of the Offical Solicitor
A major part of the duties of the Official Solicitor is the safeguarding of the disadvantaged, which of course includes vulnerable adults, seeking to safeguard their welfare, property and status under the law. Each year there are some 950 or so new cases to be dealt with concerning the property and status of persons under a legal disability or at a disadvantage before the law.
Increasingly the work involves declaratory proceedings in the High Court regarding where the person is to reside and with whom he should have contact. Medical treatment decisions are also an increasing part of the Official Solicitors role. He is required to act as guardian ad litem or amicus curiae with regard to medical interventions such as sterilisation, abortion, emergency caesareans and end-of-life decisions including the withdrawal of life supporting activiites from a patient. He acts in the absence of any other appropriate person or agency to take on this difficult role. He must seek to prevent any possible failure of justice, including the liberty of the subject, and at the same time facilitate the administration of justice by acting as investigator and as adviser. He is also required to act as the as last resort personal representative with regard to the estate of a deceased person, or to be the trustee of a trust, that is to say when no one else such as a relative can be found to do so.
Victim Support[22] is a national charity with the aim of helping those who are victims of crime. Although not specifically aimed at vulnerable adults, they come within its remit The group undertakes roles such as supporting witnesses in court. For vulnerable adults and their families it is able to provide someone to talk to in confidence and can give information on matters such as police and legal proceedures, includng accompaning people to view courts before the case is held in order to lessen any anxiety. They can give advice as to how to obtain compensation or make an official complaint. They can help people to have access to those able to answer specific questions. While unable to discuss evidence or to give legal advice they perform a valuable support role, including offering the opportunity to discuss the outcome of a case once it is over and to obtain more assistance if necessary.
Vulnerable adults are those members of society most in need of care and protection by society, yet in many cases it is those appointed to care for them who cause pressure, harm and both mental and physical anguish. The experience of abuse and neglect will naturally have a negative impact on someone’s health, both physical and mental and on their well being. Adults who may be eligible to use community care services are any whose independence and general wellbeing would be at risk if they did not obtain adequate and suitable support in the areas of health and social care. It includes people with a variety of impairments, physical, sensory and mental and those with learning disabilities. This does not depend on the way in which these impairments have arisen, whether from birth, due to gradual weakness from an illness or old age, injury, or even what can best be described as self inflicted in the case of those who suffer because of drug addiction or alcoholic abuse. Also included are their unpaid carers who also may need support and advice.
That being said the definition is somewhat confused, because there is not one but several definitions within current government policy within the United Kingdom. The Care Standards Act 2000[23] was designed to provide for the proper administration of a various care institutions such as children’s homes, independent hospitals, nursing home and residential care homes. It gives in Section 4 (3) the definition of those within its scope ‘persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance’. In the 1999 Youth Justice and Criminal Evidence Act[24] the definition includes anyone who :-
- suffers from mental disorder within the meaning of the [1983 c. 20.]
Mental Health Act 1983, or
(ii) otherwise has a significant impairment of intelligence and social
functioning;
(b) that the witness has a physical disability or is suffering from a physical disorder.
The Fair Access to Care ( 2003) [25]document from the Department of Health is concerned with giving guidance on eligability for adult care. It prefers local authorities to assess the risk involved of abuse and/or neglect and how this affects the quality of life of those concerned and so aims to take away the sense that they are some way to blame for their vulnerability. It based on an individual’s need of help and any associated risks to their independence. Four eligibility bands are cited- critical, substantial, moderate and low with the proviso that not only should present circumstances be taken into account, but also that there should be provision to deal with needs that might in time occur or worsen if help is not given
Chapter 3 Duty of Care
Chapter 3.1 The level of abuse Despite many excellent initiatives, both private and governmental, in 2007 Gordon Lishman, [26]the director-general of Age Concern, said, speaking of the level of ongoing abuse discovered in a recent survey: :-
Abuses of this nature are completely unacceptable in any care setting. It
must stop. Care homes have a duty to provide appropriate care.
The document ‘Safeguarding Adults [27]is a framework for the provision of good standards and practices in the care of vulnerable adults. It is based on a multi disciplinary approach using as it does ideas and practices from various bodies:- The Association of Chief Police Officers; the Commission for Social Care Inspection; the Department of Health; the Public Guardianship Office; Practitioner Alliance Against Abuse of Vulnerable Adults;[28] Ann Craft Trust[29] and VOICE UK[30]
The Practitioner Alliance Against Abuse of Vulnerable Adults (PAVA) has amongst its members practitioners from many different groups such as police and probation officers, social workers, care workers, both in clients homes and in residential homes, homes inspectors, doctors and nurses , therapists of various kinds, volunteers, advocacy workers, trainers of vulnerable adults and researchers.
The Ann Craft Trust works against the abuse of Children and adults with learning disabilities, acting for groups such as parents with learning disabilities and adolescent abusers with learning difficulties.
Voice U.K. are a national charity supporting those with learning disabilities and other people who are also vulnerable for whatever reason and who have experienced crime or abuse. They also work to support the families, carers and professional workers who deal with such people.
The fact that so many different practitioners are involved, and that even this framework document runs to some 57 pages, reflects the fact that this is a complex and difficult problem. It also shows the need for excellent and open communication between the various groups, while at the same time providing the level of care needed and protecting the rights of those concerned, including their right to privacy. At times this can mean walking a delicate tight rope in order to achieve the best results.
Right at the beginning of the document ‘Safeguarding Adults’ there is a section entitled ‘Duty of Care’. The positioning of this section is important because it stresses the importance of public and individual duty for these people.
Chapter 3 .2 Failure of Duty to Care
Local authorities are faced with the task of balancing how far they should go in order to protect the vulnerable without causing at the same time infringement of their rights to autonomy. This affects both those living in the community and those in health care situations. The issue has brought into sharp focus by several recent incidents including the murder in 2007 of Steven Hoskin, a 38-year-old man with who had profound learning disabilities. Mr Hoskin was at first befriended, but was later tortured before being forced to his death from a 100ft viaduct in Cornwall. Mencap, in March 2008 citing this terrible example asks:-
Why do so many people with a learning disability become victims of hate
crime? One theory is that while a greater focus on community living has
provided welcome independence for people with a learning disability, it has
left them exposed to opportunists and those who hold prejudices.[31]
The council involved were criticised severely for the way in which it handled this case. In December 2007 the Cornish Labour Party reported that ‘Cornwall care service is only adequate’ i.e. it felt that there were those whose needs were not being fully met.[32]
Everyone, vulnerable or not, has the right to live free from abuse of whatever kind as stated in the Human Rights Act of 1988[33] which sets out that everyone should be able to live their lives free from both violence and abuse and which stresses the duty placed on public agencies such as the social services or police to intervene in order to protect the rights of all citizens. It is the most important document with regard to civil liberties. Article 2 mentions the ’Right to Life’, Article 3 the right to ‘ ‘Freedom from torture’ (including humiliating and degrading treatment); and in article 8 the right to ‘family life’ which sustains the individual is cited. The Human Rights Acts states that anyone at risk should have access to the relevant public services in order that issues such as neglect and abuse can be properly dealt with. It suggests various remedies that should be available to an individual and his carers. These include the right to liberty, the right to a fair trial[34] and, if charged with a criminal offence the person has the right to time in order to best prepare their case[35] and, when necessary, have free legal support and advice.[36] Article 7 of the same act ensures that no one is punished without a trial and in Article 8 there is provision for respect for a person’s privacy and family life, while Article 9 ensures freedom of thought, religion and conscience. In 2007 the House of Lords ruled that such provisions only applied to those resident in state run institutions, but in March 2008 Minister of Health Ian Lewis said in the near future such protection would be extended in order to include those in private accommodation by amending the Health and Social Care Act which was at that time going through parliament.[37]
Chapter 4, Local Authority Provision
Chapter 4.1 Responsibilities
It follows that if there is a duty of care placed upon local authorities then they must set up the means to ensure the protection of vulnerable adults in their areas, including those in health care establishments, both private and local authority and including nursing and care homes as well as hospitals. This means multidisiplinary group action and accountability wherein there is a clear statement that every person, vulnerable or not has the right to a life that is free from both abuse and neglect. There is also a need for this message is be actively promoted to the public, both so that they are aware that help is available and so that they are also aware of a ‘no tolerance’ policy when it comes to dealing with such issues. Information about how to gain safety from abuse and
violence must be available and accessible so that all citizens can access information about how to gain safety from abuse and violence and this should include information about the local ‘Safeguarding Adults’ procedures regarding violence and neglect.. It will mean that the work force, whether voluntary or employed, needs adequate and on going supervision and training and this means that sufficient funding and resources must be provided. Each partner agency of the many involved will require a set of internal guidelines which details the responsibilities and procedures needed by its workers. The stages necessary are covered in the ‘Safe Guarding Adults’ document[38] where they are listed as :-
Alert, Referral, Decision, Safeguarding Assessment Atrategy, Safeguarding
Assessment, Safeguarding plan, Review, Recording and Monitoring.
According to the guidance given by the Government, as in The Department of Health and the Home Office, and the Welsh Assembly, in the In Safe Hands document issued in 2000, it is social services departments that have the responsibility of taking leadership in the case adult protection services. They are advised in this document to do this by creating multi-agency committees in order to best respond to any allegations of abuse. But, unlike the situation with regard to in child protection, this guidance has no legal power and the various authorities are merely assessed according to the degree to which they comply with its recommendations.
Chapter 5. Abuse, the Abused and Abusers
Chapter 5.1 Definitions of abuse, abused and abusers These words are quite difficult to define as they cover such a wide range of people, practices and attitudes. There is no single pattern of abuse. Even so, the commonest form of abuse seems to be related to changes in living situations and relationships brought about by the a person’s growing physical and perhaps mental frailty and their increased dependence on others for companionship and for meeting basic physical, social and medical needs. Often the abuser is under stress of some form, perhaps from over work and short staffing in a home or hospital ward, their personal situation outside the work situation, financial restraints or simply a wrong attitude by someone who themselves has low self esteem, which in turn results in frustration and anger. So much so that in 2008 the Mental Health Foundation found it necessary to launch a new campaign ’Boiling Point’.[39] The Foundation , which describes anger as a necessary human emotion, discusses it in its various manifestations from mild irritation to blinding rage or can take the form resentment that builds up over an extended period, even years. They link it to both physical and mental problems.
But whatever the cause such abuse can never be considered as the correct or acceptable response to any problem or situation, even the most stressful. In every part of society there are those who want to exert power over others, but abusers may also include other vulnerable adults, perhaps with a little more ability to take care of things and who do not fully understand the harm they are causing.
Chapter 5.2 Physical abuse Physical abuse is usually considered to be aggressive actions such as slapping or pushing, but it includes also the use of restraints, even when this is considered to be for the persons good or for the good of other patients. If such restraint causes any unnecessary pain or injury then it is abusive. Deliberate over or under medication or limiting food and drink can also be said to be physical abuse.
Chapter 5.3 Emotional abuse Much abuse is emotional, from name-calling, insults or ignoring someone to intimidation and issuing threats against the individual or any other behaviour that causes fear, emotional pain or distress.
Chapter 5.4 Financial abuse Abuse also includes financial exploitation such as misuse of person’s money and embezzlement. A Press Association report of 6th September 2008[40]is entitled ‘The Elderly Face financial Abuse’. Kate Joplin, representing ‘Help the Aged’ is quoted as saying :-
It’s an ongoing problem but we only ever see part of the picture. We are talking about hundreds of thousands of victims. Sometimes the elderly are not in a position know they are being abused because of reduced mental capacity. Sometimes they are just hugely embarrassed.
Ms Jopling called for more training for care staff and professionals in order that they might be better able to recognise such financial abuse e.g. by observing changes in behaviour such as buying patterns.
In the same article Daniel Blake of Action on Elderly Abuse explained that an increasing number of people were contacting the charity in order to report financial abuse. He considers that the amount of money concerned was tens of millions being taken by fraud or stolen
Financial abuse would include fraud, obtaining money under false pretences or denying the person access to their own money. Also included are such things as scams from people such as finance companies who aim their ploys at the less able. Many of abuses of trust such as these would be covered under the Theft Act of 1968.[41]
Chapter 5.5 Sexual abuse Some abuse is of course of a sexual nature, as covered by section of the same act, and though this is possible seen as less likely to occur in a health care setting, nevertheless it is possible. Sexual abuse can range from sexual exhibition in their presence, forcing them to view pornography, touching someone inappropriately, sodomy and rape
Chapter 5.6 Neglect Neglect can mean the withholding of appropriate attention to someone’s needs, intentional or otherwise, such as failure to give medications, not giving enough to eat or drink – this would include failure to offer someone help with feeding and drinking if this is needed. Neglect can also include failure to manage someone’s financial affairs with due care or to carry out any necessary repairs that cause problems e.g. a leaking ceiling.
Chapter 5.7 Reasons for abuse Abuse may be the result when a carer, at whatever level, under pressure does things they would not do if they had received adequate training and support. They may or may not be aware that what they are doing is not best practice, but feel that they have no choice and are unable to do otherwise. This can happen for instance when there is a shortage of staff, especially those with adequate training , and so those left to cope in difficult circumstances lower their standards of care.
Sometimes the abuser is someone who show signs of dementia which leads to changes in their personality and which may cause them to become abusive because of the disease process. The object of the abuse may be another vulnerable adult. Although such behavior can be explained by the impairment that the disease causes, it is nevertheless unacceptable.
It can be institutionalized abuse as when, in a nursing home, the number of incontinent pads used is regulated by expense and time needed, rather than the comfort of clients.
It may be due to wrong attitudes towards the vulnerable as when they are considered to just a nuisance or to blame for their own position and state or when the carer just does not see the person as being equally a human being with the rights to dignity and freedom from abuse that that entails. Abusers will, as their own way of coping, manufacture faults, and errors for which they then blame their victims. This in turn means that the victims will come to believe that it is they who are at fault.
Chapter 6.7 Results of Abuse While abuse and neglect come in many guises the result is that it creates potentially difficult and dangerous situations and feelings of worthlessness in those involved, and often the result is isolation of the vulnerable person from society and from assistance and support. People with relatively high care needs are more likely to be abused. One reason for this may be a fluctuation in the person’s capabilities, so that they are perceived to be ‘doing it on purpose’ when for instance incontinence occurs only at intervals or they have night fears which means they call for attention frequently.
Even if the person concerned makes no complaint, or is unable to do so, it is possible to detect signs of abuse and neglect. The person may become withdrawn or detached from reality and exhibit regressive and or self – destructive behaviour There may be physical signs of neglect and abuse, such as a table with food and drink placed out of reach, lack of adequate clothing or the wearing of soiled clothing, uncut nails, unwashed hair and so on. Worsening confusion may be sign of dehydration and or malnutrition. Dentures or glasses may be put away out of reach and there may be obvious signs such as the smell or presence of stale urine and faeces. Because of a lack of personal hygiene, sores may develop and minor wounds and scratches may more easily become infected. Any health problems already present may be exacerbated if sufficient notice and care is not taken. This lack of sufficient personal hygiene may lead on to increased social isolation.
An institute such as a nursing home may have policies and proceedures in place designed to prevent such occurances, but if individual care plans are not made carefully and followed accurately and/or if staff spend all their time rushing about trying to maintian a basic level of care, because they are undertrained or over worked, then such neglect will occur, although not necessarily deliberate, however many neat folders labelled ‘Protocols’ there are tucked away in filing cabinets.
There may also be behavioural indicators both in the person and the caregiver. The person may be agitated when a certain carer is on duty for instance. The carer may communicate anger or frustration, perhaps has an obvious lack of the necessary skills and may be unreasonably critical.
One can of course find many leaflets, poster, web sites etc telling people how to deal with abuse such as the ‘Responding to Abuse’ webpage from Dementia Care.[42]Many of these are aimed at the abused themselves, but a proportion of these will always be incapable of complaining, which puts the onus on society to put in place any necessary checks and balances. There needs for instance to be adequate training of staff regarding noticing the symptoms of abuse, as in a training package ‘Adult Protection 2005’[43]which is designed to deal with this by raising awareness of abuse, the recognition of it in its various forms and how to discover the various signs and symptoms, especially when the abused person is incapable of communicating adequately. If individual are monitored in a consitant way and proper care plans are designed and followed , any excessive deterioration in health, physical, emotional or mental can be observed and acted upon.
Chapter 5.9 Legislating against abusive practicesThere are many instances of legislation designed to prevent abuse and to support the vulnerable. The 1997 Protection from Harassment Bill is one such act[44], the opening clauses of which tell us that a person should not harass another when he knows or ought to realise that this is harassment. The act then goes on to define this as a crime for which someone can be jailed. The problem here would be to define harassment, and just punishing the harasser is unlikely to help him change his ways when he is released, though of course he is unlikely to be able to obtain similar work again.
Another such piece of legislation is the Offences Against the Person Act of 1861[45] which for instance makes provision in paragraph 20 for the conviction of those who cause bodily harm and in paragraph 22 covers the cases where drugs are over deliberately administered. Although since much amended (it of course originally included the death penalty) this act still forms the basis for much prosecution at various levels of abuse. It mentions grievous bodily harm, a phrase that is now taken to include psychological harm.
According to the Adult Support and Protection (Scotland) Act 2007[46] adults are at risk
both when :-
- a) another person’s conduct is causing (or is likely to cause) the adult to be
harmed, or
(b) the adult is engaging (or is likely to engage) in conduct which causes (or is
likely to cause) self-harm.
This allows for the occasions when someone is self neglectful – not bothering to wash , change clothes and perhaps refusing necessary food, drink, necessary prescribed medication and so on.. It can be a difficult situation to deal with. At which point should intervention take place – and is this then abuse? By definition neglect means the failure of carers to fulfill their responsibilities regarding the provision of necessary care. In cases like this, if the person is considered not to have the mental capacity required in order to make decisions about their own care, they may be sectioned i.e. a person may be commited to a stay in a to a mental hospital, or psychiatric ward. This is a practise that is often critiscised as being easily misused and could be considered to be a violation of someone’s civil rights. However if they are in possession of their mental faculties this means that they have a right to refuse treatment. The Adult Support and Protection ( Scotland ) Act 2007[47] gives in its opening paragraphs what it describes as a ‘General principle on intervention in an adult’s affairs’ i.e. where the intervention will give benefits to the person which would not have been available without some such intervention. It also says that where there are a range of possible options that chosen must be the one that is least restrictive with regard to the person’s freedom. The Act then goes on to give principles as to how this may be carried out taking regard for any views that the person has expressed as well as consulting other interested parties such as relatives, primary carers, attorneys,. The active particiaption of the person concerned is encouraged as much as is possible as well as giving them support and as much information as necessary. The Act also allows for the importance of ensuring that the person is not treated less favourably than others might be in a similar situation, as well as taking into account the person’s particular abilities, culture, sex and sexual orientation among other factors . North of the border the Adult Support and Protect Act ( Scotland ) makes it the responsibility of councils to inquire into circumstances when it believes for some reason that a person is at risk and may need professional intervention in order to protect their well being or their property and finances. The same act requires co-operation between the various bodies who might be concerned such as the Mental Welfare Commission for Scotland, the Public Guardian, the police and the relevant Health Board
. Legislation to deal with such a situation in the case of vulnerable adults was contained in the 1956 Sexual Offences Act which stated that:-
A woman who is a defective cannot in law give any consent which would
prevent an act being an assault for the purposes of this section, but a person
is only to be treated as guilty of an indecent assault on a defective by reason
of that incapacity to consent, if that person knew or had reason to suspect her
to be a defective.[48]
In paragraph 15.3 similar words are used with regard to vulnerable males. This act has now been succeeded by others using rather different language, but the principle remains, as in the Sexual Offences Act of 2003 which in paragraph 30 legislates against sexual activity with a person with a mental disorder which by its nature impedes their ability to make valid choices choice.This does just include penetrating sexual acts. An offence is commited if :-
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B is unable to refuse because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental
disorder and that because of it or for a reason related to it B is likely to be unable to refuse.
(2)B is unable to refuse if—
(a)he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A [49]
Further on the act also mentions such as forcing someone to watch a sexual act or causing them to take part in sexual acts by threatening, inducing or deceiving them. Paragraph 38 and succeedinging paragraphs particularly mention care workers in this context and the fact that they would almost certainly be aware that the person concerned had a mental impairment and defines the term ‘careworker’ in paragraph 42
Another act, designed to protect all members of society, but which is relevent to the protection of vulnerable adults, is the Offences Against the Person Act of 1861[50], which though now superceded at least in part, for instance by the repeal of the death sentence and by the Sexual Offences Act of 2003, [51]laid out penalties for the various degrees of physical offences against the person. It served to consolidate much previous legislation into one act. Section 18 includes the phrase ‘grievous bodily harm’ and this can be taken to mean psychological harm of the kind often used against the vulnerable. The proviso given is that the offender intended to cause harm. The 2003 Act simplifies the earlier Sexual Offences Act of 1956 in that in Section 4 paragraphs (c ) and (d) merely states that an offence is done when B does not consent to engaging in the activity and tha t A ‘does not resonably believe that B consents’,. Sections 30 to 41 of this act specifically deals with offences against those with a mental disorder and in Section 42 it , like its predecessor, defines Care workers.
The Crime and Disorder Act of 1998[52]is a long and complicated document which among other things has provision for such things as Anti-social Behaviour Orders when someone acts in ‘a manner that caused or was likely to cause harassment, alarm or distress to one or more persons’[53] these being specifically not members of his own household. Although these would not usually be of concern to those in health care settings, if we include people who are in day care, but who at other times live out in the community then there may be relevence, if for instance they are being harassed in their homes or when going about in the neighbourhood. It may be that such harassment comes to the notice of health care staff, who, because they have a duty of care, ought to investigate or to report the matter. The Act covers sexual acts such as exhibitionism. It requires local authorities to have strategies in place to deal with such situations, for instance by financing neighbourhood warden schemes. In section 17 (1) they are required to do all they resonably can in order to prevent local crime and disorder. That phrase ‘reasonably can’ however could give great leeway – a council could for instance use the excuse of financial constraints to avoid providing adequate street lighting or enough play areas and sports grounds so that young people don’t have to kick balls against someone’s wall.The act gives the police to seize ‘noise making equipment’ ( Section 24 (2a) and councils can evict offenders from council housing .
Section 28 deals with racially aggrevated crime, and of course vulnerable adults are not restricted to one racial group so may be harassed because of colour or religion instead of or as as well as their problems with mental capacity, mental disturbance or physical frailty.
Chapter 6.Degrees, Confidentiality and Priorities in Protection
Chapter 6.1 Necessary standards
Any action taken by an organisation in order to protect a vulnerable adult ought to meet human rights standards as set out in the Human Rights Act of 1988.[54] The action chosen should be in proportion to the perceived level of risk for the vulnerable adult or adults concerned. The person’s wishes should normally be taken into consideration, with the proviso that where others are put at risk this must take precedence, as organizations must give first proprietary to the upholding of the rights of all.
When there is a concern about a matter of abuse or neglect raising this concern, in almost every case, will necessitate the sharing of information that may be considered to be both personal and sensitive. This means, as laid down in the Data Protection Act of 1988,[55] that whenever possible this should be done with the informed consent of the person concerned, except where there is an immediate danger to either them or others and even then only when and where appropriate. The Caldicott Report of 1997[56] deals in great detail with matters of patient confidentiality. It says:-
Patients entrust the NHS or allow it to gather sensitive information relating
to their health and other matters as part of their seeking treatment. They do
so in confidence and they have the legitimate expectation that staff will
respect this trust, or may be unconscious, but this does not diminish the duty
of confidence. This passage is taken from a document produced in 2003 by the The National Health Service – a set of guidelines regarding such matters of confidentiality.[57] The document includes what it refers to as ‘the Confidentiality Model’ which lists the protection of a patient’s information, the need to inform the patient of how their information is used and also the giving of choice to the patient as to how their information is to be used i.e. can it be passed on to third parties. [58] If the patient is so incapacitated as to be unable to give informed consent, information should be disclosed if this is in the patient’s best interests and then only as much information as necessary.
Staff must make clear to patients when it is felt necessary for their safety that information be disclosed and must make sure, as far as is possible, that patients are aware that they have choices available to them as to whether information may be disclosed and to whom, unless there are over riding exceptions as discussed below.
It must be remembered that these are individuals and as such will not all have the same degree of sensativity with regard to personal information. What may seem to be extremely sensitive information to one person may have a very low level of sensitivity to another.
I t is impossible to anticipate every situation that might occur, but it is possible to prioritise the types of incidents and their results.
Chapter 6.2 Priorities First priority of course must be given to situations that are life threatening or critical because serious abuse or neglect has either already taken place or may well occur and so the person is deprieved in various ways – where health is threatened or where the person can no longer carry out or receive vital services.
The second group include those circumstnces where the degree of abuse or neglect suffered means that the person is deprived of the majority of services that should normally be available to them. – i.e. he no longer recieves enough personal care or support, or is no longer able to be as involved as they might be in social situations.
Thirdly the person is unable to carry out several things related to personal care or receive certain services or support.
Finally those situations which only affect one or two aspects of life and provision.
There must be plans in place to deal with each of these possible scenarios and staff and volunteers must be aware of these.
Chapter 6.3 OptionsThere are of course also degrees to which vulnerable adults can be aware of options available to them. For some the level of their impairment means that they need a greater measure of support in order to help them to understnd the various choices available to them as well as coming to realise tha t they have just as much right as everyone else to be able make decisions and to live their lives in safety. Individuals and the situations in which they find themselves must be judged on their merits and consideration given both to the matter of avoiding any breach of confidentiality or to the creating difficulties for the patient.
In some cases, even with full support, mental capacity is too weak to enable the taking of such decisions, or ability can fluctuate as in some mental illnesses. In these situations there must be someone, or an organization, which, acting in the persons best interests and where known their earlier wishes , have authority to make such decisions as are necessary for the persons safety. This might include such people as the Official Solicitor and organizations such as Victim Support or a Health Care Trust.
Chapter 7 The History of Provision
Society has always had members less able than the majority with cope with whatever was required in order to live a reasonable life. What has changed over many centuries is the type of provision offered and the reasons behind such provision – this being linked to various attitudes towards those now referred to as vulnerable adults. Another change has been in the legal consequences when society does not provide what is considered to be sufficient care and protection. The final factors are those that have changed the most over time and are perhaps the most important – the amount of input such a person has regarding choices to be made and decisions arrived at and their awareness that they have such rights together with the amount of support they can expect as they try to choose between the various options available to them.
Chapter 7.1 Early history In earlier days there was no official provision for helping such people. Either families did so or else they fell by the wayside. Later religious groups of various kinds, such as the Templars, included this work among their charitable activities or certain rich benefactors made provision. Places such as the Chelsea Hospital, where retired military veterans live, or St Bartholomew’s Hospital in the city of London were begun in this way. Sometimes this would be purely charitable as in the case of leper hostels, but in many cases , as in homes for expectant mothers, the ‘clients’ were considered to be sinners and would come under strong pressure to reform their ways. Those handicapped by their lack of mental capabilities still tended to be cared for at home, while the mentally disturbed often ended up in places such as ‘Bedlem’[59] where they, in their misery, provided entertainment for visitors.
Chapter 7.2 Early Legislation
Among the first moves to legalise the care of ‘the impotent poor’ was the 1388 Statute of Cambridge, from the time of Richard II[60] which, as well as introducing rules restricting the movements of labourers and beggars, ensured that each county “Hundred” [61]became individually responsible for caring for its own “impotent poor” — that is those who, due to infirmity or great age, were considered to be incapable of work. It may be considered as the first English Poor Law, but was not enacted in any fullness and so was limited in its effects and usefulness. By the 1440s attitudes in rural Britain had hardened further towards the ‘sinful poor’ when people realized that the then system of parish relief and almshouses could no longer cope with the vastly increased level of need. In 1547 came the Statute of Legal Settlement[62] which, while reproving ‘foolish pity and mercy’, did make provision for the housing of the impotent poor. By 1536 church wardens were told to collect funds in order to provide for those who could not work. The act also prohibited unofficial almsgiving, so provision was beginning to slip away from the hands of individuals towards the authorities. During this same period, from about 1500 to 1700, many people, mostly women, were condemned to death as witches and this number included many were disabled women whose physical or mental impairment was seen as the badge of their evil.
From 1552 parishes began to register their poor, who were at that time divided into 4 groups, the first of which we would probably consider covered the category now referred to as ‘ vulnerable adults’ , but then referred to as the impotent poor and included as well as adults, children who had no one to care for them. Under a later act of 1563 these received what was known as ‘outdoor relief’ i.e. clothes, food and money. In the second class were the able bodied who were unable to find work for some reason, such the seasonal nature of their work or a lack of the necessary training and skills. For these there was ‘Indoor Relief’ in the form of being cared for in almshouses, orphanages or workhouses as was considered appropriate, while the sick were cared for in hospitals. For the young and able apprenticeships would be arranged for some craft.
Thirdly there were the idle poor, often seen as likely to have criminal tendencies. They were sometimes referred to as sturdy rogues – the beggars and vagrants and those who, for whatever reason, seemed to refuse work. The first class were seen as requiring help, but the second class, though often given some help in the form of parish relief, were encouraged to seek work so as to remove them from the poor lists and the third group were often punished as an example, for they were thought of as being capable of work but refusing to take it on. They might undergo a public whipping until the boundaries of the parish were reached at which point they became someone else’s problem, or be punished in a more long term manner by being placed in a house of correction where they laboured long and hard on poor rations. The reason for registering them was so that the extent of a growing problem could be properly assessed and dealt with. In each parish two collectors of alms were appointed in order to assist the churchwardens after the main service on Sunday ( at this time church going was supposedly obligatory) to “gently ask and demand of every man or woman what they, of their charity, will be contented to give weekly towards the relief of the poor”[63]..In 1563 local Justices of the Peace began to collect funds in order to provide for the relief of the poor and some nine years later local taxes were in place for that purpose. In 1572 the first Poor Law was passed which provided for a tax to be taken at a local level – i.e. local authorities were now responsible for their own poor. All landowners were required to pay weekly ‘the Poor Rate’ i.e. the money used to pay for the care of the poor. Refusal to pay was punishable by imprisonment. 4 years later another act[64] stated that each town should provide work for the unemployed. Although this was non-residential the system brought about the first ‘Work houses’. Although the Oxford dictionaries first citation dates from Exeter in 1652, ‘The said house to bee converted for a workhouse for the poore of this cittye and also a house of correction for the vagrant and disorderly people within this cittye’[65], they had been around for much longer.
There were a number of Acts of Parliament during Tudor times from 1563 onwards designed to deal with the growing number of poor people. These culminated in the Poor Law Act of 1601[66]. These were necessary because of the collapse of the feudal system, in which everyone owed allegiance to their superiors , who in turn took care of them with lords of local manors being responsible for those on their lands. Matters had not been helped by Henry VIII’s dissolution of the monasteries and convents. Not only were hundreds of monks and nuns suddenly wandering about, but the poor no longer had places of refuge to go to for help. Prior to the Reformation religious houses had followed the New Testament’s teaching to care for the less able as laid out in Matthew 25: – ‘I was an hungered and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger an dye took me in; naked, and ye clothed me: I was sick and ye visited me: I was in prison and ye came unto me.’[67]
Chapter 7.3 Civic responsibility There was a general decline in religious faith because of all the confusion brought about by the various ideas around at the Reformation. This, together with the demise of the long established framework of feudalism and a general drift towards town rather than rural life as well as the removal of the religious , meant gradually responsibility for the vulnerable members of society became a civic , rather than a religious, duty. Lord Burghley, for many years Elizabeth I’s chief advisor, seems to have been particularly concerned according to the web page ‘the Poor Law’[68] . He felt that the poor might be driven to desperate acts and so become a danger in society. He was proved right after a succession of poor harvests towards the end of Elizabeth’s reign. There had been a 25% increase in the British population during the Tudor period, and now people were starving. The situation was accentuated by huge price rises and so the Justices of the Peace were given new powers to raise extra funding and the post of Overseer of the Poor was first created. His role was to calculate the amount that a parish needed to raise in Poor Rate, to collect this money from those who owned houses and land and then to dispense the funds raised as money or as clothing and food. His duties also included the supervision of the parish Poor House. The act of 1601 formalised all the earlier proceedings as well as making provision for a national system, rather than lots of local ones. It allowed for the provision of materials to give those able to do so gainful employment. The term work house is not used. There was a threat of prison for any who refused to work. For the “impotent poor” — the elderly, chronic sick and generally feeble – it proposed the building of housing, rather than workhouses, but the writers of the act still considered that family members were responsible for each other , so older relatives who were infirm for instance, had to be cared for by their families. From 1697 there was ‘badging of the poor’ i.e. those receiving parish relief were required to wear on blue cloth badges with the letter P in front of which would be a letter signifying their parish. It also was a method of ensuring that none got more than they were entitled to. This labeling was by no means widely taken up by parishes. The 1662 Settlement Act[69], otherwise known as ‘An Act for the Better Relief of the Poor of this Kingdom’ confirmed what had been established by the earlier Statute of Cambridge i.e. individual parishes were responsible for their own poor. This led to many disputes as to who should bear responsibility and all sorts of ways were thought up to get around the law. Illegitimate children for instance were considered to have settlement wherever they were born and so parishes tried to move on pregnant, unmarried women before the time of birth. If someone was employed in a parish for a full year they could , when needed, make a claim on the parish and so many men would find themselves employed for 364 days or less only, with an unpaid holiday.
Chapter 7.4 Work houses and asylums Such laws, which Peter Higginbottom[70] describes as ‘the Old Poor Laws’ in contrast to later laws. The Old Poor Laws, being locally enforced, were somewhat haphazard in their implementation. Some of their most important ideas such as the creation of workhouses were completely voluntary, as they were meant to be according to local need. Thomas Gilbert’s Act of 1782[71] was also described as being for ‘the Better Relief of the Poor’. Its aim was to have organization on a county level. Unions of parishes could set up a workhouse in common as opposed to providing small cottages. These were not for the able bodied being solely for the reception of the old and infirm, the sick and orphans. There had already been such unions of parishes, but the Act made these easier to set up and run. However they were never a popular method of dealing with the situation in which parishes found themselves and somewhat less than 100 such Gilbert Unions ever came into being. I t did however make changes to the way poorhouses were supervised , making provision for a Board of Guardians and allowed for the appointment of an official Visitor. In 1796 The Quakers open a new type of asylum, York Retreat, which challenged the then usual treatment and detention of ‘lunatics’ for this asylum had “no cells, no chains, no cold baths and no beatings”. [72]
What Higginbottom goes on to describe as ‘The New Poor Laws’ were based upon the new administrative unit of the Poor Law Union. The aim was to introduce a rigorously implemented standard system to be centrally enforced upon the whole country and which was based upon the use of work houses. As well as work houses an act of 1828 allowed for the building of lunatic asylums, the funding for this and their maintenance to be on county rates. Only a few years later in 1845 the first state-run asylums were introduced in new Lunacy Legislation This enforced the previous Act of 1828 but now compelled Justices of the Peace to build more asylums.
7.5 New attitudes The Poor Law Amendment Act of 1834 was based upon a very different attitude to the poor from the attitudes held in earlier times. The traditional view had been one of poverty being unavoidable and the poor being victims of their given fate as exemplified by the gospel text “For the poor ye always have with you”[73] and helping them was believed to be a Christian duty. The 1834 Act was guided by the view, growing in popularity, that the poor were to a great extent to blame for the situation in which they found themselves, a situation which it was felt they could change if they really wanted to.
From the 1870’s onwards Darwin’s theories about evolution[74] served the disabled a disservice, because they reinforced the idea that they were in some way inferior. Many felt that the views they held now had scientific backing and there was an increased call for segregation.
Workhouses by this time, in almost every case, had a room or block in which the ill or infirm were cared for. The Guardians were required to appoint medical officers to provide any necessary medical care. The job would be put up for tender and in almost every case went to the lowest bidder, so did not attract the more able members of the medical profession. The doctors were also obliged to pay for any medication that they used. Nursing care was left to female inmates, almost always totally untrained and illiterate, which must have meant that they could not read instructions on any medicines prescribed. According to Peter Higginbottom[75]there were no trained nurses in any of the workhouses in the United Kingdom before 1863. By this time there was pressure to reform the system. The Workhouse Visiting Society had been founded in 1858 by Louise Twining with the aims of promoting the moral and spiritual improvement of the inmates of workhouses and in particular they were concerned with “destitute and orphan children”, “the sick and afflicted” and “the ignorant and depraved”.[76] In 1863 Broadmoor, a hospital for the criminally insane had been opened in Berkshire but Pinpoint Online report on their web site that the way in which the mentally ill were dealt with at that time was very confused, often with the poor being placed in asylums and the insane in the workhouses, but within a few years most towns did have poor law infirmaries of some kind, often these being housed within work houses. In 1868 the terms ‘imbecile’ and ‘idiot’ were being used by professionals such as teachers.
In 1888 responsibility for the asylums passed to county and borough councils. Soon afterwards there came a campaign for the segregation of such people and in 1897 about 4 and a half thousand children were placed in special schools. The 1913 Mental Deficiency Act set out to segregate adults with mental deficiencies and to prevent them bearing children.[77]
By the 1870’s books and newspapers were being provided, and there were tea making facilities to be used by the inmates of long stay institutions. Living condition, though by no means ideal, were in many cases better than those outside and food, if monotonous, was at least regular.
Chapter 7.6 20th Century Peter Higgingbottom gives the example of the workhouse in Macclesfield which allowed the older inmates to wear their own clothing and the one in Abingdon where, by the late 1920’s, a wireless was available and there were weekly , supervised , excursions into the local town.
In 1930 the Boards of Guardians were officially dissolved and some workhouses were redesignated as ‘Public Assistance Institutions’ because of course the need to provide care had not diminished. These institutions continued in their task of providing care for the elderly, the infirm and the destitute. The real changes were few, a change of name, the abolition of uniforms and the inmates, now called residents, had a little more freedom., but to be in what most still referred to as ‘the Workhouse’ continued to carry with it a certain stigma and shame. The Disabled Persons ( Employment ) Act of 1944[78] came about because there were many disabled ex-service men, but it opened the way for other disabled people to gain employment. When the National Health Service came into being in 1948 many former workhouse buildings were put to use, often as geriatric hospitals or for the mentally ill or mentally retarded. By the end of the 20th century most of these had closed and the mentally infirm, for whatever reason, are now supposedly cared for on the community once more, with only relatively small specialist units, usually attached to general hospitals.
Chapter 8 Dealing with abusers and those who cause neglect
There is of course legal redress which can be taken against perpetuators of abuse and neglect, as in the recent case of a nurse convicted of striking a demented patient.[79] In this case the nurse’s name was removed from the register of nurses held by the Nurses and Midwives Council after a hearing by the independent Conduct and Competence Committee panel for the Council. She had already been fined and convicted at a court hearing in July 2007. Commenting on this case Kirsty Hempel, a spokesperson for the Nurses and Midwives Council said :-
The Code states that a registered nurse has a duty of care to patients who are
entitled to receive safe and competent care, that you must adhere to the laws
of the land, act in a way that justifies the trust and confidence the public have
in you, and uphold and enhance the good reputation of the profession.
On 4th September 2008 the Sun newspaper carried a report of a nurse being struck off in a similar way because of poor hygiene standards which of course could lead to other patients being exposed to possibly life threatening infection.[80]
The Crime and Disorder Act of 1998[81] deals in part with what to do with offenders, beyond just punishing them In section 69 of the bill there is provision for the making of an action plan for offenders ‘in the interests of securing his rehabilitation, or of preventing the commission by him of further offences, make an order (an “action plan order”) ‘ ( Section 69 (2) this would include a written report by a professional such as a probation officer or social worker regarding what such an action plan is supposed to achieve for the offender. It may require him for instance to undergo certain training such as anger management or require drug treatment and tests or make curfew conditions.
In Safeguarding Adults[82] there is a report regarding a case of rape of a long term resident by a fellow resident. In this case the care manager did not act and so the worker to whom the matter had been reported contacted the adult protection unit who in turn had contact with the safeguarding manager. A strategy meeting took place at which an adovate is able to represent the resident harmed. Meanwhile she is given a personal alarm and the accused person is monitored at work until a police interview can take place.Other residents were questioned after this had taken place and other accusations emerge. The accused is remanded on bail in a single person residency and provided with care. The women concerned are offered counseling, the manager, who was prepared to ignore the situation, was suspended and the women prepared for the upcoming court case. The Adult Protection team were called in discuss the situation with the staff team and the proprieter of the home dout an internal review.
So it is clear that it not only carers who can be neglectful or who cause harm. There have been numbers of cases where it is a fellow patient who causes difficulties or even physical injuries, as in the case reported in the Mail in August 2007, where was described the occurrence on a mixed sex psychiatric ward. Despite the rapid intervention of staff a lady was killed.[83] Her death has led once again to a call for the end to mixed sex wards in U.K. hospitals. The report mentions that an official report by the National Patient Safety Agency in 2006, into 45,000 incidents involving mental health patients over a period of two years, revealed that one in 50 incidents resulted in severe injury or fatality. Commenting on the case the authors quote Moira Fraser, speaking for the Mental Health Foundation, who said: “What does it say about a system in which some of society’s most vulnerable people feel less safe in hospital than outside?”
Not every situation is as dramatic of course, or needs extreme measures in order to properly deal with it. For instance a patient not receiving personal allowance may simply be due to an oversight. Individual complaints need to be followed up with meetings between residents if they have sufficient capacity, relatives (if this is felt to be appropriate) and care managers. Those who have made complaints and who have no
relatives or do not want them involved should to be offered advocacy service for example contact with Victim Support.
There may be incidents viewed as neglect which arise in a nursing home because of low staffing levels. In this case an Agreed Adult Strategy Meeting should take place and the police may need to be made aware of any concerns. Managers are required to deal urgently with staffing issues and social services review the care of a sample of particularly vulnerable individuals. An enforcement notice regarding standards not met will be issued as required and the local authority will suspend placements until the situation is resolved. Once an inspection shows that standards are once again at an acceptable level then placements will begin again, but the situation will need to be reviewed regularly.
But whatever the degree of seriousness ‘Safeguarding Adults’ outlines ways in which organisations can analyze incidents and learn from them. This is known as Root Cause Analysis .:-
A retrospective review of a patient safety incident undertaken in order
to identify what, how, and why it happened. The analysis is then used
to identify areas for change, recommendations and sustainable solutions,
to help minimise the re-occurrence of the incident type in the future. This approach is equally applicable to complaints and claims.[84]
Chapter 9 Vulnerable Adults and Prison
Chapter 9.1 Women in prison
Labour peer Baroness Corston’s report into the condition of women in prison was published on in March 2007. Commissioned by the Home Office, it came about after six deaths at Styal women’s prison near Manchester between 2002 and 2003. There had been 71 self-inflicted deaths of women in England and Wales since 1997 and associated with this were high levels of self-harm and mental illness and distress, as well as family disruption The report confirms that substance misuse, self-harm, mental illness, experience of abuse and domestic violence, and time spent in care are all common among women prisoners, many of whom would come under the classification ‘Vulnerable Adults’. According to the article produced by Community Care.co.uk[85] the study found that women in custody are more than five times likely to have a mental health issue than those in the general population, and that as many as 78 per cent exhibited some level of psychological disturbance at the time of their incarceration.
‘Vulnerable women who are not a danger to society should not be going to prison,’ said Home Office minister Baroness Scotland in March 2007.[86]
Our prisons are full of those considered to be vulnerable adults, many of them in prison hospital units and the prisons of the United Kingdom to a greater or lesser degree are health care facilities.
The article cites a number of incidents in just a 10 day period in one jail. These included a dirty protest, self harm incidents including one in which dangerous amounts of blood were lost, use of segregation for the safety of others , a woman who set fire to herself and a woman in shock after murdering her child.
Chapter 9.2 Action needed The report calls for much smaller units to be used to house those who are a danger, but states that for the majority non-custodial sentances would be more appropriate.Baroness Corston admits that the government had already undertaken lots of research into the subject, but adds ‘There can be few topics that have been so exhaustively researched to such little practical effect’.[87]She suggests more women should be referred to Women’s centres where much therapeutic work is carried out to good effect, giving examples such as Calderdale women’s centre in Halifax and Asha in Worcester.
The article includes a joint comment by 16 charities :-
The Corston review signals a profound shift in the debate on women’s imprisonment away from abstract questions of what to do. The burning
questions for the government now are how and when to implement the recommendations.
The Director of the Prison Reform Trust, Juliet Lyon is quoted by Community Care as saying
Very many (women) have been victims of serious crime and sustained abuse. A
new commission for women, with a sensible blueprint for reform across
government departments, will largely do away with big prisons that
operate as social dustbins for vulnerable women and introduce instead
a network of small units and effective local services coupled with proper supervision and support.[88]
The Corston report review was warmly welcomed by those campaigning for penal reform such as the Howard League for Penal Reform[89] whose director Frances Cook said:-
Imprisonment is a potentially life-threatening and ineffectual response
to women’s offending. We recommend, as a matter of urgency, that
prison must be abolished as the central response to women’s offending.[90]
In a March 2008 article in the Observer, Amelia Hill discusses the alarming facts concerning women in prison and the rise in case of self harm and suicide in recent times, especially among the younger women. In particular she says this is likely to occur in those sent to jail for relatively minor, non-violent offences and that a disproportionatenumber of women prisoners are at risk of commiting or attempting suicide due to their vulnerable mental state.[91]
Chapter 9.3 Vulnerable males in prisonWith regard to vulnerable males in prison, Lord Bassam of Brighton, then the Parliamentary Under-Secretary of State at the Home Office, reported in February 2000 that in the previous 3 years there were 288 self inflicted deaths in United Kingdom prisons.[92]Lord Bassam went on to describe various ways in which prisons were trying to help the situation, but also pointed out that the numbers involved were in line with those in the general population, and stated that prison officers undertake training in order to better identify those who were most likely to be at risk.In reply Lord Lamming raised the point that such prison suicides were often linked with abuse. In 2004 the charity for the mentally ill ‘Mind’ organised a conference ‘Troubled inside[93]’ to consider the position of the vulnerable in prison.
Despite Lord Bassam’s remarks in 2005 a study carried out by Dr Seena Fazel[94] of the University of Oxford which found that men are 5 times more likely to kill themselves if detained in prison than if free.
Mind feels that though there are moves to keep all but violent women out of prison, there is no such move when males are concerned.
Chapter 9.4 Scottish Provision for Mentally Disordered Offenders[95]
There is no one remedy available for the care of vulnerable adults and this document is an example of how provision continues to vary from place to place. The Scottish Office letter of January 1999 under the title ‘Health, Social Work and Related Services for Mentally Disordered Offenders in Scotland’ both sets out policies and shows how complex the problem of adequate and proper provision is, though it only deals with a certain proportion of vulnerable adults – those who, because of some mental disorder, have become involved with the law. The authors, Straife and Hamill, seek to define the situation with which it is trying to deal and describes how the Prison Service has to deal both with those who need medical intervention and those whose disturbed behaviour is not the result of mental disorder. They admit that there are only a small number of prisoners with psychotic illness who might be transferred to hospital situations, but goes on to say that research suggests that there is at least double the national rate of psychological disturbance in Scottish prisons as compared to the population of Scotland and how, in the case of women the proportion of disturbance is even higher. They report that prison experience exacerbates mental health problems for a variety of reasons such as separation from familiar supports, whether family, home or possessions, together with a sense of loss of their social acceptance. In some cases a mental health problem surfaces for the first time soon after detention. The aim of the proposals contained within this letter are, with the use of multi agencies and a variety of disciplines:-
to provide care under conditions of appropriate security with due
regard for public safety: have regard to quality of care and proper
attention to the needs of individuals: where possible provide care
in the community rather than institutional settings: provide care that
maximises rehabilitation and the individual’s chance of an independent
life. [96]
There are a number of important points in that passage – the working together of people from many agencies and disciplines, rather than just the few people concerned in the old workhouse system. Secondly there is the need for provision to pay attention to individual needs and to be in the community rather than in residential care so as to maximize the person’s independence. Yet this is still to be therapeutic and so can be classed as being ‘a health care setting’. Paragraph 1.2 makes it clear that both those with mental illnesses and those with intellectual impairment are included. The planned provision covers a wide remit of provision that is a sufficient and effective range of health, criminal justice, social care, housing, education, employment and benefits advice. The document stresses the need for careful and individual assessment of need[97]and also the need to respect people’s rights as citizens. It outlines the roles of various agencies such as health boards, the local authority, social services, psychologists, nurses, the police and general practitioners and so on and discusses the need for training of all involved[98] It points out how social circumstances can have a huge effect on someone’s behaviour. The aim is to identify and to respond in a suitable manner with accurate diagnosis and then both health and social care – whether from mental health teams, social workers, befriending schemes and so on, and usually a combination of many different resources.
Chapter 9.5 Options Available The letter also makes mention of options available to the courts when a crime has been committed including ‘Hospital –based disposal.[99]i.e. ‘hospital orders’ and ‘restriction orders’[100] stating how this commitment can only be carried out if certain statuary conditions are met and how the Mental Welfare Commission has protective duties under the 1984 Act. The restriction order is a public safety measure and means that a person under such an order cannot be transferred to a place with weaker security without approval of the designated minister. The Scottish Office has also provided a leaflet explaining its provisions and processes which is made available to the people concerned. The Mental Health Act (Scotland ) 1984 has since been amended in several ways, as in the 1991 act [101] which makes provision for what happens when a short term order comes to an end and of informing the person of his right to appeal against such an order. Mention is also made of the person’s relatives and their involvement in the situation.
Chapter 10 Staff and Carers in Health Care Settings
The term ‘health care settings’ covers a range of facilities from hospices and hospitals, day care centres, convalescent homes and a number of other places. Caring for the vulnerable is not the easiest, the best paid or even the most pleasant of careers. Staff vary from the highly trained practitioner to the totally untrained person who may or may not have an adequate grasp of the English language. People take on such work for a miscellany of reasons, often because it fits in with family needs for instance in the case of women especially. How they feel about their work and their attitudes to the people in their care can vary just as much, from those who are dedicated to providing the very best they can through those to whom it is just a job and then those who hate it and, even if silently, somehow blame the people in their charge for the situation.
Making staff feel wanted, satisfied and responsible is an important part of the running of any health care facility. This takes more than an encouraging word. There must be proper staff assessment procedures and training opportunities, even for part timers and those who regularly work late evening or night shifts. Dissatisfaction leads to frustration and anger as well as increased risk-taking and consequent poor decision making, as well as being linked to poor interpersonal relationships, both with patients and fellow staff..
There must be an adequate system of screening staff before they are taken on, and if agency staff are used from time to time, the facility manager must ensure that the agency also does adequate checks.
Chapter 11, Supporting the Abused and the Vulnerable
Chapter 11.1 Specialist Groups As well as support from family and carers there are a number of organizations who specifically support the abused. Often these are independent group and charities , rather than local government groups. One such association is Beyond Existing, a Yorkshire based group listed in Safe Guarding Adults[102], who realise how people who have been harmed find it difficult or embarrassing to talk about what has happened whether this is physical, emotional, sexual or financial abuse, and whether this involves family members or professional carers. There are many more such groups listed by Jackie Pritchard in her book ‘Support Groups for Older People Who Have Been Abused’[103], one of a series of books from the same publisher in a series on violence and abuse.
Particular sub groups may have their own support group, as is the case with Jewish Care[104] which works in London and South East England. They describe themselves as looking after ‘the elderly, frail, sick and vulnerable members of our community.’ The group has its own social work team which is able to carry out assessments and care management for Jewish service users in the London Borough of Barnet, which has a high number of Jews among its population.. When there is a referral regarding the abuse of a Jewish adult the group work in partnership with the local council. This may include joint investigations and case conferences which can devise specifically culturally sensitive protection plans. The group deals with victims of the European holocaust as well as with former refugees and their families.
In 2010 the group hope to open a 56-bed nursing and dementia care home together with 45 ‘extra-care’ assisted housing apartments. The venture, which will also have a day care centre, will give priority to Holocaust survivors.
Other groups include ‘Violence is Preventable’[105] who believe just that. They are working towards early disclosure, which means that meaning abuse is stopped sooner and not allowed to escalate. They can provide guidance on how to stay safe by the avoidance of possibly violent or abusive situations, but also seek to alter
the mindset of potential abusers of the future by working with children and young people and the group works with schools, parents, other agencies and charities, government and local authorities and with the media in order to get their message across and so bring about necessary change.
There are specialist carers such as the Admiral nurses [106] who have as their main focus work with family carers, providing medical care in people’s own homes as well as providing practical advice and emotional support.
They also provide education and on going training in dementia care and consult with other professionals in their area in order to provide and promote best practice with regard to dementia care.
There are numerous organizations which deal with particular sub groups, for instance those dealing with people suffering from a particular condition such as the Alzheimer’s Society, or those in particular circumstances such as Values in Action, which, since 1971, has been seeking to ensure the right of people with learning difficulties to be treated with respect, just as others were. It produces many publications to this end which vary from leaflets and books to videos and audio tapes in order to meet as wide an audience as possible. For instance ‘Face to Face’ is concerned with how to communicate effectively with those without language[107]All these, organizations work with both vulnerable adults and their carers as well as maintaining links with government.
Vulnerable adults do not always make the best witnesses when it comes to court cases. Under the provisions of Chapter 1 of the Youth Justice and Criminal Evidence Act 1999 a witness is eligible as a vulnerable adult for support in such cases as by the use of video recorded evidence. This can be used if the court considers that the quality of the evidence given the witness might give is likely to be negatively affected because :-
the witness suffers from a mental disorder within the meaning of the Mental Health Act 1983; or otherwise has a significant impairment of intelligence
and social functioning; that the witness has a physical disability or is
suffering from a physical disorder. [108]
Once a witness is found to be eligible for such assistance, then in the case of adult
vulnerable witnesses, the court must be satisfied that the use of a video will maximise
their abilities to give evidence as required.
Chapter 11.2 Specialist Groups and Charities versus State Provision
There are advantages and disadvantages on either side. There are both advantages and disadvantages to charitable provision. They are relatively free from government and so can criticize and campaign independently of political bias. On the other hand they do not have power to bring in legislation, only to perhaps influence it. Another big disadvantage is that their effects can be patchy, depending as they do upon charitable fundraising, which takes up a considerable amount of their efforts. They may or may not have paid staff, but depend to a large extent on volunteers who will vary considerably in their abilities, but at least they are likely to be well motivated – for example those who support the work of Mencap often have a relative who has mental disabilities of some kind. State provision on the other hand is more likely to be universal, at least in intent, but can be described as disinterested, its officials being less personably involved. This should bring with it an evenhandedness as far as provision is concerned, but because local authorities and health care trusts have a certain amount of autonomy to spend their funds as they wish the result can still be patchy.
Chapter 12, Modern trends
Chapter 12.1.1 Valuing People When in 2001 the government produced Valuing People[109], their plan for making improvements in the lives of those learning difficulties as well as those immediately concerned about them – their families and carers, the document claimed to be concerned that such people have access to their rights as citizens, are included in their local communities, are able to make everyday choices and have an opportunity to live as independently as possible. It would be followed by yearly reports to parliament as to how the proposals were working out in practice – the first of these, produced by the Learning Disability Task Force was issued in January 2003.[110] It began by saying two things – firstly that it was far too soon for any real changes to have taken place, and secondly that many feared that there just wasn’t enough funding to back up the proposals contained in the original white paper. The task force claims the primary message ‘Nothing about us without us’ was just not getting through and felt that disability care was very low on government agendas. On a more positive note the writers of the report have obviously gone a long way in their attempts to make it accessible to those primarily concerned.
In that 30 year period since the previous white paper a lot of work had already been done, in particular the closure of many long stay hospitals, often former work houses.
According to Section 2 of the Chronically Sick and Disabled Persons of Act 1970 local authorities were required to provide services for disabled people. As well as covering such matters as the provision of home helps and other assistance they were required ‘to arrange services for the prevention of mental disorder and for aftercare of those suffering from a mental disorder’.In April 2000 Lord Rix spoke in the House of Lords on the subject of this bill’s 30th anniversary[111] and to the developments there had been in the provision of local authority services for both disabled and elderly people:-
We signed up to the cause of disabled people in those heady days when disability was becoming a social policy priority and social security, social services, education and public attitudes were all being realigned in the interests of disabled people.
Chapter 12.2 Disabled Rights Commission. Also mentioned on the same occasion was the inauguration of a new venture – the Disabled Rights Commission which would be working at a time when attitudes towards the disabled had moved considerably from that of 30 years earlier.
The emphasis in the 21st century is now on supporting adults to access services as they choose, rather than merely intervening in order to provide adequate protection. ‘Better Government for Older People’[112] is just one example of how championing the idea of engaged citizenship for all is seen as taking a necessarily central role in preventing unnecessary dependence. The group works to influence debate and to challenge attitudes, approaches to policy and service provision nationwide. They work closely with other interested parties as for example by organizing conferences together with the Royal College of Nursing so that both sides can communicate their concerns and ideas.
Chapter 12.3 Accessability Another example is the government’s Valuing People web site[113] which is designed to be easily accessible and easy to understand. For example in the section ‘Keeping Safe’ it explains that those with learning difficulties are entitled to the same support and protection as other people, while at the same time respecting their wishes and individuality. It goes on to say that local councils should have policies to ensure that this happens. There is provision for vulnerable adults to contact the Valuing People team and say what they find and feel on the subject. There is an explanation of what a hate crime is, but also what can be done about it. There are easy to use links to organizations such as Respond[114] with its motto ‘From Hurting to Healing’ and Mencap. These two groups, as well as others, are aware that vulnerable adults are likely to have difficulty in obtaining justice when abuse has occurred. Perhaps there is a problem of communication or their claims are dismissed either as unimportant or unbelievable. Groups such as these are active campaigners for change. Another such group is Voice U.K.[115] which seeks to help those with learning difficulties within the justice system.
Chapter 12.4 ChoiceThere is also help available in order to help people become more capable of making their own decisions. This ranges from medication in the case of those with moderate degrees of Alzheimer’s disease, (though controversially still not generally available in mild cases) to such things as reminiscence therapy, which consists of the discussion of past events in groups, usually using objects such as photos in order to jog memories. Reality orientation consists of frequent reminders given to remind people where they are and what is going on currently– quizzes perhaps or weather charts and calendars. Complementary therapies are also used. These may not affect a person’s capacity levels, but will make life more pleasant for them e.g. massage.
Chapter 12.5 New Knowledge It is now known that dementia can be delayed in its progression by partaking of a diet high in fruit and vegetables and which is relatively low in saturated fat. Keeping active, both mentally and physically also has a part to play. Many care and nursing homes now have regular sessions of ‘chairercise’ so that even those who are relatively immobile can partake in exercise and in hospitals physiotherapists will encourage patients to take suitable exercise and occupational therapists will help with mental exercise by providing suitable materials or encouraging patients to do crosswords etc.
Chapter 12.6 The most severely handicapped Once again the most severely handicapped are the most vulnerable and the least likely to be able to benefit from any help available, but they are also the ones least likely to be aware of such help or be able to access it, which places a greater onus on those responsible for their care.
Chapter 12.7 New Methods and Legislation
The duty of authorities to provide necessary protection for those whose lack of the mental capacity means that they would have difficulties in accessing protection for themselves has been made clear in various pieces of legislation, in particular the
Human Rights Act of 1988[116] and the Mental Capacity Act of 2005[117]. The Community Care Assessment (NHS Community Care Act 1990)[118] describes the various processes by which a professional such as a health care worker decides which services are needed to meet an individual’s particular needs. Many organisations now use a ‘single assessment process’ i.e. an assessment carried out by all involved professionals.
Another relatively modern innovation is the Enduring Power of Attorney.[119] This can be used for instance by someone who has a condition that is progressive, e.g. Huntingdon’s chorea. It gives the power of attorney which, subject to certain conditions and safeguards, continues to remain in force even after the maker of the Enduring Power (the ‘Donor’) is no longer mentally capable of handling their own affairs, provided that it is registered. It can be used by the attorney at any time from the date of its execution including the period prior to the onset of the expected mental incapacity, provided that the doner has placed no restriction on this and there are no restrictions placed within the document.The purpose of such legislation is to enable people, while they still retain adequate mentally capacity, to decide who will deal with their financial affairs for them after they become mentally incapable.
Chapter 12.8 The need for further change Despite all these various acts as recently as February 2007 the Foundation for People with Learning Disabiliites[120] still felt the need to say ‘To achieve equality society’s attitude must change’.
We have moved a long way from the Victorian idea of ‘do gooding’ when the more able, and often wealthy, members of society felt that not only was it their duty to help the less able , but that it was also their right to make decisions of their behalf. Although there may, from time to time, be situations when this is still necessary, on the whole the move is towards people being involved in their own decision making, whether this be choosing what clothes to wear and when, how they spend their money, or the kind of care they receive and who from. With regard to these changes what was once referred to as ‘Adult Protection’ now comes under the heading of ‘Safeguarding Adults’. Such Safeguarding Adults work includes a wide variety of provision such as providing residential accommodation for ‘expectant and nursing mothers who are in need of care and attention which is not otherwise available to them’.[121] People are no longer inert recipients of care, but as far as is possible, actively involved in any decisions made, both major and minor.
There has been much legistlation which seeks to bring this about. For example the Disability Discrimination Act 2005[122] , which seeks to ensure that no one is unnecessarily disadvantaged in public places or in the carrying out of his business by a failure of provision. In section 21b it states that ‘It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions.’ This phrase has implications when it comes to local authority provision of care in that it seeks to ensure that those with disabilities are just as entitled to provision as the able and so provides such things as a visiting library service and other facilities to which one would normally travel to receive such as the services chiropodists, opticians and dentists who can visit care and nursing homes when this is necessary. There is provision for safeguards such as the provision of Adult Protection Help as in the case of Leicester County Council[123]. Their web page lists those it considers vulnerable: those with a disability whether physical, mental or sensory; the mentally ill or demented.; those fragile because of age; those with a drug or alchohol problem as well as those with certain physical problems. The authors go on to define what they consider to be abuse whether physical, psychological, sexual, financial, neglect, discrimination and also refers to institutional abuse and poor practice. The page calls upon the public to report suspected abuse and so involves them in the situation rather than it just being the responsibility of the authorities.
They also seek to inform people of their rights with videos being advertised and various press releases. Other local authorites have made similar provision, but there will always be those who rely on others, often family members, to see that they obtain the care they require and are entitled to.
According to Mark Hunter, in the August 2008 issue of Community Care, changes are
afoot. He cites a number of reasons for this. Firstly, the ‘No Secrets guidance’ is currently being reviewed Secondly several organisations, including Action on Elder Abuse and the Association of Directors of Adult Social Services, have asked that a legislative framework be produced so as to put adult protection on an equal footing with that already in place for children and young people. The present Care Services minister Ivan Lewis has, according to Mark Hunter, said that such legislation will be considered. Jenny Anderton,[124] commenting on these proposals says however :-
Partnership boards, advocacy groups and community safety partnerships are
all doing great work to create accessible ways of reporting crime. Where they
fall down is they don’t talk to each other.” The new policies would include joint working links on the subject between the Home Office and the Department of Health. Other parts of the country however have responded in different ways. Kate Higgins reports in ‘Some Victims Less Equal’[125] in August 2006, that :-
The Scottish Executive had established a Working Group on Hate Crime in
2003 and its primary was that “the Scottish Executive should introduce a
statutory aggravation as soon as possible for crimes motivated by malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability.
However she also reports that, when in June 2006 the Scottish Executive announced the forthcoming legislative programme, including a sentencing bill, it failed to include hate crime in its agenda.
In 2001 the government produced ‘Valuing People’ a survey of learning disability in the 21st century.[126]
Mencap[127] in March 2008 discussed on its web page the refreshment of the government’s learning disability policies as in ‘Valuing People Now’ which sets outs a scheme to tackle hate crime, something that those who are vulnerable are especially defenceless against. The charity reports how often it is the case, when abuse is reported by someone with a learning disability, that the matter is not treated seriously. This may be because of attitudes to those concerned, but also may be because they simply are not believed. Also mentioned is the fact that the police are sometimes reluctant to make a case when they feel that the victim would be unlikely to make an adequate witness when the case reaches court.
Despite all the legislation past and present, all the good practice, hate crimes against the vulnerable members of society continue. A Mencap report of 1999 ‘Living in Fear’ [128]revealed that 9 out of 10 of those surveyed had experienced recent hate crime, this varying from mild verbal abuse up to physical attack. Kate Higgins in 2005 in her survey of Scots with learning disabilities ‘Some People Less Equal’[129] concluded that about 20% expected such attacks at least once a week, a much higher rate than that experienced in the general population. Speaking on a similar subject, but refering particularly to institutions ‘All manner of people under institutional care, including mental patients, retarded persons, nursing home patients, board and care residents, prisoners, and children in daycare may be abused.’ Karyn Patricelli, 2005.[130] She is based in the United States of America, but her comments could unfortunately still apply to the United Kingdom in 2008. On the same page is a long comment by a patient describing her very negative experience of the health service. The lady may have been relatively safe warm, fed and even medicated, but she did not receive the help she was so obviously in need of. To medicate someone so that they are easier to deal with is a common option and in some cases may be the only option available , but in the long term it achieves as little as did shutting people away in asylums in the 18th century. Modern legislation often builds upon that has gone before as when the National Health Service and the Community Care Act of 1990[131] refers back to the 1948 National Assistance Act, though in many cases updating the language used, as in the opening paragraph of section 42. A mere change of titles, though of course reflecting a positive change in attitude, is of course only a first step.
There has been recent rethinking with regard to dealing with offenders. The Web site ‘Rethinking Crime and Punishment’[132] considers the relative costs of keeping someone in prison as opposed to issuing Community Punishment and Rehabilitation orders or Drug Treatment and Testing Orders. One option would be an increase in the use of Probation Hostels which offer a high level of monitoring at a relatively low cost as compared with full custodial sentencing in jail. The writer of the web page asks, ‘If we were to take some of the prisons budget and invest more in community sentences would they produce even better results?’, but does not however give an answer.
The document ‘SafeguardingAdults[133] ‘sets out in section 6 a number of standards that must be met. These include the need of any organization, which receives a report of possible abuse, to make an adequate and appropriate response and the advising of those reporting such abuse of possible options available. The ‘Safeguarding Adults’ is consistent with the principles and structures set out in legislation such as the Human Rights Act and the Mental Capacity Act 2005. Assessments are required to be made quickly and when a crime is found to have been committed the matter must be reported to the police. Taken into account the particular circumstances, including the mental capacity of the person concerned and the estimated level of risk, decisions are then taken as to how best to provide protection for them. If the person is considered to have the mental capacity to do so they are given information as to possible options from which to choose.
If the problem is concerned with safety of a service user, as when a member of staff may be abusing those who use a service or when one vulnerable adult is believed to be abusing or when a service is neglectful, then immediate action should be taken in order to ensure the future safety of those concerned It stresses the need to be able to recognize risks from various possible sources and situations including risks from other service users, colleagues, relatives and carers. The organizations which provide services must have clear internal procedures in order that staff and volunteers can most easily gain any necessary information, support and advice on abuse issues, together with a ‘whistle-blowing policy and both staff and any volunteers made aware of who it is, both within and outside the organization to whom they can report any concerns that they may have.
Despite all such documents and good practice there still remains a pressing need for more understanding on the part of both carers and the public in general so as to lead to acceptance and inclusion of all citizens including any vulnerable adults.
Chapter 13 Conclusions
Over many years there has been much work done to improve the situation of the vulnerable adults in our communities, for instance the National Health and Community Services Act of 1990[134] provides in section 42 legislation by which a local authority:-
shall make such arrangements as they consider appropriate and adequate
for the provision of suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such
accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by
any deformity or disability.
In section 47 provision is made for an assessment of need in such cases.
Some legislation, such as the 1988 Human Rights Act are more important than others in that it respects the rights of all people.Attitudes towards vulnerable adults have varied as has the language used about them , but there has always been some attempt to care for those unable to care for themselves including, in quite recent times, giving them back some dignity as they become involved in making descisions about their own lives. There are new ventures, not necessarily easily recognised as health care situations, which nevertheless serve to care for the health of those who use them by improving their feelings of self worth. An example would be Gal Gael in Glasgow, described on its web page as a ‘Creative Community’ where unemployed, and seemingly unemployable people are encouraged to reclaim their difgnity as they learn a craft. It was described on ‘Songs of Praise’ on 31st August 2008[135] as ‘A venue, tools and a bit of respect’. This may not be traditional medicine, for in this case it cures social ills as much as anything, but it falls into the tradition of making provision for the vulnerable.However there will always be those for whom this ability is very limited by the extreme nature of their condition. For these their must be special safeguards of their rights as human beings and , as far as possible they should be made aware of those rights just as those who provide their care are aware of their responsibilities. In the document ‘Safeguarding Adults paragraph 3.3 it says :-
‘Safeguarding Adults’ is a key theme within the local Crime and Disorder Reduction Boards strategy. All relevant sub-strategies should be audited to
ensure they are effective for, and that relevant services are accessible to,
those citizens who are covered by the ‘Safeguarding Adults’ policy.[136]
We see then that there are lots of efforts being made in order to support the vulnerable adults in our communities and health care facilities. If all adults were able to achieve access to all the support to live in safety when required, there would be no need for complicated policies and procedures deemed necessary to address the needs of
this particular group. The government paper ‘No Secrets’[137] sought to define and identify those most in need of support and protection and who, due to the very nature of their various difficulties, require help. It also considered such things as what actually constitutes abuse and possible abusive circumstances and forms and patterns of abuse. and at which point is intervention necessary. It builds on earlier work such as when it defines a ‘vulnerable adult’ according to the statement made in a 1997 consultation paper ‘Who Decides’, a paper that looked at who makes decisions in the case of vulnerable adults[138], and which was issued by the Lord Chancellor’s department.
Providing them with the best possible support must be an ongoing process. Penny Furness-Smith writing in August 2008 on the Communitycare.co.uk web site said ‘Councils must look at new working practices in their effort to develop their increased role in safeguarding vulnerable adults.’ [139]
The document ‘Safeguarding adults’[140] on page 15 lists ways in which this can be done. As well as a practice of zero tolerence of both abuse and neglect, they list crime prevention and safety audits and so the upholding of the human rights of all concerned. There ought to be promotion and delivery of choice for each user of the available services together with careful screening of any staff members or volunteers. For the staff there must be adequate and appropriate on going training and assessment so that a satisfactory level of service may be delivered together with well planned feedback mechanisms and good management of services and resources. Together with these practices should be clear policies against discrimination and harassment towards any person whether a member of staff, a volunteers a service user or a carer, and all the partner organizations must have effective complaints procedures that are easy to understand, accessible and well publicized. Together with these there must be well thought out protocols with regard to such matters as serious incidents and accidents, those concerning personal and intimate care and protocols for dealing with violent and challenging behaviour. Matters such as the possibility of physical intervention being required in order to control difficult or dangerous behavior, the sexuality and relationships of clients, risk assessment, the proper
control and administration of any medication they may require, and such topics as the proper handling of service users’ money and property. There is a need too for developing an understanding by all staff and carers concerned of the complimentary and supportive roles of the various agencies, such as the social services, medical staff and police, when a potential crime has been committed. Staff and cares need to be aware of the provisions of the various pieces of legislation that have been passed as well as other valid documents, for example the Human Rights Act of 1988[141] and the National Health Service Confidentiality Code of Practice of 2003.[142]
A policy for post –abuse action with the vulnerable adults concerned should be formulated. Abuse leads to profound loss of self esteem as well as fear and the person concerned will need lots of support before they overcome this.
There are plenty of health and other practitioners of various kinds willing and able to work with vulnerable adults. The Royal College of Nursing publishing department for instance has over 4,500 articles [143]on the subject of Disability Nursing Practise so the information is available.
On the whole though the law does not seem to make adequate provision for the abusers in society, still being at the stage of punishment rather than cure in most instances. The document ‘Safeguarding Adults’ , paragraph 6.13[144] for instance simply includes the right of an alleged perpetrator to be informed of concerns about their behaviour, the nature of such concerns and gives them a right of reply, and states that ( page 18):-
Managers, staff or volunteers who are dismissed because it is believed
they have harmed a‘ vulnerable adult’ (whether or not in the course of
their employment), or leave/resign when they may have been dismissed
on these grounds, are referred to the POVA list (if their employment is
covered by POVA )
This refers to the ‘Protection of Vulnerable Adults ‘scheme which began in 2004.[145] The list is consulted when staff are recruited. A person who is named on such a list is disqualified form working with vulnerable adults until their name is removed. There are also cross links to a similar list concerned with child care. If referred the person is placed upon the list provisionally while an investigation is carried out. There are many possible pieces of legislation under which such a listing can be made such as the Care Standards Act of 2000[146] which, replacing the Registered Homes Act of 1984, and which covers such things as the management and staff of social care and independent healthcare establishments and agencies, their conduct and the suitability of any premises. The Act also covers such things as the registration and deregistration of homes, private hospitals etc. Agencies are required to provide adequate premises and staff, train them and make provision for the safety of those using such a service ( Section 22).
This would be easier if examples of good practice, as outlined in the document Safeguarding Adults’[147] were widely publicized as in Jacki Pritchard’s book, Elderly Abuse Work Best Practise in Britain and Canada.’[148] It is insufficient for services simply to produce policies, they must ensure that they are adhered to and that staff receive adequate training and support. The Ann Craft Trust[149] and other such organizations call for skilled advocates who can independently scrutinize services.
The systems in place still have many faults as listed in the document ‘Healthcare Commission report causes concern that adults with learning disabilities are at risk of abuse’[150] The list includes failures to check backgrounds and criminal records of care staff employed. Such checks of course take time and money. It was discovered that , though whistle blowing policies may be in place, they are rarely used. Less than half of services were found to have safeguarding policies and procedures that were sufficient to meet possible needs.
Lack of training means that staff and clients are not always aware of exactly what constitutes abuse, which in turn means that abusive practices are allowed to continue and to proliferate.
The report stated that many organizations continued to have the false impression that their staff knew exactly what to do if abuse was suspected just because policies had been written and procedures proposed, despite the fact that such policies were often tucked away in office drawers and staff did not receive adequate training in their implementation.
Richard Curen, Director of Respond commented, ‘This is deeply worrying. It looks like adults with learning disabilities are being put at risk of abuse in those very services which are meant to be caring for them.’[151]
Other charities have made similar statements. In 2003 ‘Action on Elderly Abuse’[152] for instance accused both the Nursing and Midwifery Council and the National Care Standards Commission of neglect because of what it describes as failing both to properly investigate abuse or to take proper and adequate action against abusers.
With regard to abusers there is a still longer way to go, especially with regard to their support and possible rehabilitation. For instance in their 2008 campaign the Mental Health foundation state that:-
The area of anger has been neglected by researchers, clinicians and
policy makers. Consequently people who might benefit enormously
from learning how to manage their anger better are not encouraged
to come forward, or when they do, they may be offered little or nothing
in the way of useful support.[153]
Psychologists understand the processes involved in someone who causes abuse and neglect involved, but in many cases it would be time consuming and expensive to offer adequate and positive, life changing help. As the situation has gradually inproved with regards the provision of care for the vulnerable, where at least the scale of the problem is now fully realised, perhaps there is hope that in the future there will also be a gradual improvement in the help available to abusers as well as abused.
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