Mental Capacity Act Conference 2019

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

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

3. Care Act 2014

4. Six Safeguarding Principles

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

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

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

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

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

10. Domestic Abuse Bill 2019

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

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

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

16. Legal responseslandscape is complex and covered by a range of legislation… Rape (Sexual Offences Act, 1956, 2003, s1) False Imprisonment (Common Law) Common Assault & Battery (Criminal Justice Act 1988 s39) Threats to Kill (Offences Against the Person Act 1861 s16) Sexual Assault (Sexual Offences Act 2003, s3) Harassment, alarm and distress (Public Order Act 1986 s4A, amended Protection of Freedom Act 2012) Fraud (Fraud Act 2006) Stalking (Protection from harassment Act 1997 s2A amended Protection of Freedom Act 2012) Ill treatment &/or wilful neglect of a person lacking mental capacity (Mental Capacity Act 2005, s44)

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

18. Coercive control – Reasonable cause to suspect A’s 'substantial adverse effect on B’s usual day-to-day activities ' may include, but is not limited to: • Stopping or changing the way someone socialises • Physical or mental health deterioration • A change in routine at home including those associated with mealtimes or household chores • Attendance at college/ day centre • Putting in place measures at home to safeguard themselves or their children • Changes to work patterns, employment status or routes to work • For purpose of the offence, An ‘ought to know’ that which a reasonable person in possession of the same information would know (s76) Serious Crimes Act (taken from CPS Controlling or Coercive behaviours in an intimate or family relationship https://www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship )

19. Case Law

20. Cont………..

21. Actions considered…

22. Outcome…..

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

24. Case Law

25. Cont…….

26. The High Court

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

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

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

30. Critical skills and support

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

32. Sharing Information

33. There are a number of circumstances where the practitioner can reasonably override a decision by the individual to not share information, including:

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

35. Conclusion Thank you for coming Your certificate will be emailed Please complete the online evaluation form