The state agencies undermining agency

New UK safeguarding legislation is set to make it easier still for the authorities to enter people’s homes.

Ken McLaughlin

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Topics Politics

The history of social work contains much discussion over one of the most important and hitherto contentious aspects of politics: when should the state be authorised to exercise its power over us and to intrude into our lives and into our homes?

Over the years, this tension between a sphere of individual autonomy and state authority has exercised many great minds. After all, the private sphere of the family was a cornerstone of liberal political thought. However, even many key liberal thinkers, including John Stuart Mill, conceded there would be times when state intervention against the wishes of the individual was defensible, for example, when harm was involved. Neither did Mill view parental authority as sacrosanct. He instead thought that the state was justified in using the law to limit parental liberty, where necessary, for the good of the child or society. He did think, however, that such state action should only be considered in exceptional circumstances and approached with caution so as not to undermine the autonomous sphere of the family.

As social work developed, it increasingly meditated this tension between the privacy of the family and the public responsibility of the state to protect children. That is one of the main reasons why a healthy suspicion of social workers is a good thing for both the individual and society. In recent years, however, the balance has moved inexorably towards the view that the state should be allowed to intervene further and further into family life. More often than not, this is justified on the basis of public protection (we are abused or abusive), or we do not know what is good for us (think of the number of government-backed health and lifestyle campaigns to which we are subject).

This shift is illustrated by a statute recently adopted in Scotland, and now likely to be implemented in Wales. The Social Services and Well-being (Wales) Bill would create adult protection and support orders, which would allow social workers to apply to court for permission to enter a property in which they have a reasonable suspicion that an adult is at risk of abuse or neglect, but where a third party is denying access to the person or is suspected of coercing the person into refusing social services’ involvement. A similar law came into force in Scotland with the passing of the Adult Support and Protection (Scotland) Act 2007. In England, a draft Care and Support Bill currently stops short of such an order, but during the consultation process there have been numerous calls for it to be amended to allow such an inclusion. For example, the College of Social Work supports the inclusion of the new powers, and claims that 84 per cent of social workers also support such powers of entry. Given that such an order already exists in Scotland and will soon exist in Wales, it remains to be seen if the Department of Health will stick with the draft bill as it stands – these risk-averse measures have a tendency to achieve a momentum that is difficult to rein back.

It would be foolish to believe there are not instances of adults being mistreated by family members, and prevented from reporting the abuse to the authorities. Indeed, if powers to intervene in such situations had already been available, 46 per cent of social workers said they would have used them up to five times in the past three years.

Nevertheless, powers to gain entry already exist. Section 17 of the Police and Criminal Evidence Act (PACE) enables police officers to enter premises without a warrant to save ‘life or limb’ – and at times the old ‘I thought I could smell gas’ excuse has allegedly been used to justify immediate police entry. Section 47 of the National Assistance Act enables councils, with the approval of a magistrate, to enter and remove people under certain conditions. Likewise, section 135 of the Mental Health Act allows a magistrate to enable a police officer, accompanied by a doctor and an approved mental-health practitioner (usually a social worker) to enter and remove someone from home to a place of safety for a mental-health assessment if there is reasonable cause to believe he or she is being abused or neglecting themselves. In addition, section 44 of the Mental Capacity Act 2005 already makes it a criminal offence to abuse or neglect a person who lacks capacity.

So, given there are existing mechanisms by which the authorities can enter people’s homes without the occupier’s permission, it is worth asking why there is a demand for the extension of such powers today. And it is here that the trend not only to undermine the private sphere but also individual autonomy becomes clear.

If you look at the situations where the authorities can already intervene into people’s homes, these are clearly defined in terms of risk to life or limb, criminality or where someone’s judgement is impaired due to mental incapacity and/or mental illness. Now, these situations are obviously subject to professional judgement and contestation, but at least they define a set of criteria to be met before the state can intrude upon the privacy of the home. However, recent developments in social policy have moved the focus away from the protection of adults towards a focus on ‘safeguarding’.

Safeguarding relates to the need to protect certain people who may be in vulnerable circumstances. So, under the proposals, even if an adult with capacity refuses an assessment, the local authority can still investigate if it suspects that the person is experiencing, or at risk of, abuse or neglect, even to the extent of entering their home against their will. The key change then is not only the move away from serious physical danger to protecting people who may be in vulnerable circumstances (whatever that means). More crucially, the change involves the removal of the need for the adult to lack mental capacity. In other words, just because you are mentally well and have capacity, that may no longer guarantee you the right to refuse a local-authority assessment.

What needs to be acknowledged is that many people, for a variety of reasons, may choose not to report a crime or form of abuse to the authorities. They may wish to deal with, or even live with, a problematic or ‘vulnerable situation’, to exercise control over their own affairs, including their relationships in all their complexity and, potentially, unpleasantness. Now, to others such a choice may be viewed as an unwise one, but this is a crucial aspect of freedom – the right to make unwise choices. Sadly, the trajectory of statute and social policy means that even those with mental capacity are increasingly deemed to be incapable of deciding their fate without professional guidance. The clamour for, and lack of resistance to, such developments also highlights the loss of belief not only in the autonomous individual but also in the liberal concept of the autonomous family.

Ken McLaughlin is a senior lecturer in social work at Manchester Metropolitan University, England. His latest book, Surviving Identity: Vulnerability and the Psychology of Recognition, is published by Routledge. (Buy this book from Amazon (UK).) On 19th February he will be chairing a discussion on the regulation of relationships at the Manchester Salon.

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