(1) Where an adult refuses a needs assessment, the local authority concerned is not required to carry out the assessment (and section 9(1) does not apply in the adult’s case).
(2) But the local authority may not rely on subsection (1) (and so must carry out a needs assessment) if—
(a) the adult lacks capacity to refuse the assessment and the authority is satisfied that carrying out the assessment would be in the adult’s best interests, or
(b) the adult is experiencing, or is at risk of, abuse or neglect.
(3) Where, having refused a needs assessment, an adult requests the assessment, section 9(1) applies in the adult’s case (and subsection (1) above does not).
(4) Where an adult has refused a needs assessment and the local authority concerned thinks that the adult’s needs or circumstances have changed, section 9(1) applies in the adult’s case (but subject to further refusal as mentioned in subsection (1) above).
(5) Where a carer refuses a carer’s assessment, the local authority concerned is not required to carry out the assessment (and section 10(1) does not apply in the carer’s case).
(6) Where, having refused a carer’s assessment, a carer requests the assessment, section 10(1) applies in the carer’s case (and subsection (5) above does not).
(7) Where a carer has refused a carer’s assessment and the local authority concerned thinks that the needs or circumstances of the carer or the adult needing care have changed, section 10(1) applies in the carer’s case (but subject to further refusal as mentioned in subsection (5) above).
Section 2(b) – are we suggesting, in this section, that an adult who has capacity to refuse an assessment, will still be made to have an assessment under this proposed legislation? Against their wishes? I may have misunderstood but it appears that the local authority can dismiss a persons right to refuse if it believes a person is at risk of abuse or neglect.
As a social worker I support many families and individuals who are in domestic violence situations, which may or may not involve a vunerable adult, and unless the individual concerned wishes to involve outside help (police, health, social care etc) we have been powerless to intervene unless the person lacks capacity. As, rightly so, it is a persons human right to private and family life without interference from the state.
Whilst I would encourage and support a person in this situation to accept help I would not feel comfortable imposing the authorities will on them and subjecting them to an assessment without their consent – if they had capacity. Have I misunderstood? Correct me if I am wrong.
There should always be an an investigation in these circumstances as it is about protecting vulnerable individuals who may be being intimidated or concerned by threats of a ‘withdrawal of contact’ if they tell. The law should demonstrate to them that they are supported and that there is zero tolerance of any kind of abuse.
I have interpreted this in the same way as Stacey and would have concerns regarding carrying out a safeguarding assessment/ investigation where a capcitated adult refuses to consent to the safeguarding investigation.
The most common “scenario” I can see this applying to is an allegation of financial abuse where the alleged perpetrator is either a family member or friend.
In these situations any decision to “override” the alleged victim’s consent currently would be based upon potential risk to others but if there is no risk to other vulnerable adults I think it would contravene the HRA to put a duty of assessment on the local authority.
Somebody refusing help of any kind may be the abused person, refusing help under threats from abusive family members / carers!
When a social worker visits a client, be that a ‘at risk’ child or adult, they should have their right of entry and be allowed to call the police to enable that vulnerable person to be checked or there whereabouts established.
Don’t we every learn from cases like Baby Peter, it is better to be over cautious than deal with a dead child or an abused cilent!
I am afraid Shurleea had got the wrong end of the stick with this section. It refers to adults, not children (as does the whole Bill!) and cannot be used in the context of helping an ‘at risk’ child or another ‘Baby Peter’!
If an adult is being abused or neglected, the state has the right to conduct an assessment, though in truth if the potential client refuses to assist in this assessment, and has the capacity to do so, the state really has its hands tied.
You can lead a horse to water, but you cannot make it drink! You can attenpt to help abused people, but they also have to want to help themselves.
Well the words are all there,lovely people-centered lguanage. As a dementia nurse and community worker I could have written this paper with no problem at all. The problem would be in funding these proposals. As far as I can see there is no mention of what the eligibility criteria will be neither is there any guarantee that councils will support people in the future. Will a single pensioner who needs some help to get up and then to go to bed and who will need shopping etc who is living on a3190 per week be able to get help with care?Seems to me the whole Bill is based on free-voluntar/y labour. Tories will never understand that many elderly people have no children or nice families to run about after them. Billions of pounds given to banks,fat cats,baling out the Eurozone,paying for India’s space programme and other’aid’ but only a paltry couple of million for elderly people over several years. A nother waste of tax;payers money this Bill will be with poor elderly people still having to go without care because they are too poor. Never mind, children;s inheritance will be protected as the tax;payer pays hotel costs for people with million pound homes!
This clause needs to turn on a reasonbable belief or suspicion of a lack of capacity, in order to make it consistent with the State’s article 1 European Convention duty, in my view. The trigger for mandatory assessment in any event, of experiencing abuse or neglect, or being at risk of abuse or neglect should be clarified to include self-neglect.
I don’t understand why complying with a carer’s refusal of a carer’s assessment should not be subject to a belief or suspicion of a lack of capacity as well, when it is carers who are often under the most strain. The consequences could be caught on a safeguarding enquiry of course, in relation to the person being cared for, but not providing for a mandatory assessment of a carer when there was concern that they may be lacking insight into their own situation seems to be missing an opportunity for good social work and persuasion, to my mind.
Reading the other consultees’ views makes me think that people need to be widely informed that the only way the Court of Protection can obtain jurisdiction over a person believed to lack capacity is on the basis of at least enough evidence to raise an arguable question in the judge’s mind about capacity, and then the Court orders the person to undergo assessment. It is not interference with people that it then happening, necessarily; it is the only way the State can offer protection to people who appear to be saying no, because whether they are doing so with or without capacity is a difficult question in lots of cases of co-dependency, physical frailty, etc. So the obligation to do an assessment of need – albeit through a door or a window, if the person won’t co-operate, regardless of their position on consent, is an essential aspect of public protection and individual rights in a civilsed society, in my view.
We would agree with this if under b) the following words were added: “there is lack of certainty about the adult’s capacity to chose to remain in their ‘at risk’ situation or there is some evidence that they may be being threatened or placed under undue pressure.
It needs to be bourne in mind that in circumstances where an assessment of need is refused there still needs to be an assessment of risk (based on what is already known) to the person and to any others who may be affected by this person’s refusal. Walking away is not an option.