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Does the law relating to vulnerable adults empower them and offer them choice?

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Introduction

Does the law relating to vulnerable adults empower them and offer them choice? In answering this question, this essay will initially look at some of the issues around defining who is a vulnerable adult, what are the main pieces of legislation in this area and some of the matters that arise. It will then go on to discuss the question, mainly in the context of older people, before going on to consider some of the issues for adults with disabilities and briefly, at adults who experience mental health problems. The focus on the needs of vulnerable adults is a relatively recent one. Prior to the 1980s childcare issues were the main topic for debate despite the fact that adults are the main users of social care services. However, pressure from various groups of service users and increased emphasis on the importance of anti discriminatory and anti oppressive practice led to a shift in policy that resulted in the passing of the Care Standards Act 2000. This act formalised Adult Protection procedures within local authorities and partner agencies such as the police, it introduced registration of social workers, making it an offence for unregistered people to use the title, it also introduced the protection of vulnerable adults scheme (POVA) designed to keep abusers out of the workforce (Workbook 4, p 9 and Update Supplement, p 24). An adult who is vulnerable can be so because of acts of omission or commission; vulnerability can arise because of a failure to provide care which can be categorised as neglect within the context of abuse. It can also arise as a result of physical, sexual, financial or emotional abuse. There is no definition of a vulnerable adult enshrined in legislation but in its widest context the Law Commission describes a vulnerable adult as "...any person of 16 or over who (1) is or may be in need of community care services by reason of mental or other disability, age or illness and who (2) ...read more.

Middle

Abuse that takes pace in a residential setting can be seen as a criminal matter or a civil one arising out of breach of contract. However, in domestic settings where no money is changing hands the issues can be much more complex, because of the dynamics of the relationships between service users and carers; heavy handed use of the law can have disastrous consequences for both. The case of Mollie & Edward (Workbook 4, pp 24 - 25) is a good example of this. The law needs to be used to empower and give choice to both Mollie and Edward and because of their conflicting needs it would be better if two workers were involved. Edward has committed a criminal offence in hitting Mollie and as such, the Offences against the Person Act 1861 could be used, however, removing Edward might not be the best thing for Mollie as she would have to be cared for by strangers or moved to a residential setting with all the risks identified above. Mollie is neither empowered nor given choice. More assistance under the 1977 NHSA might be a better option. Edward is a carer and in law, under the Carers (Recognition and Services) Act 1995 he is entitled to an assessment in his own right. However, in my experience, the extent to which he is empowered and given choice is, again, resource driven as the law entitles Edward to an assessment and not necessarily to any services for carers beyond information and advice. Legal remedies for abuse include criminal prosecution. For example, in the case of financial abuse, a prosecution under the Theft Act 1968 or in the case of psychological abuse, The Protection from Harassment Act 1997. In her article on Elder Abuse, Alison Brammer points out that the high burden of proof can make criminal prosecution difficult, but the lower burden of proof in the civil courts can mean contract, tort and family law can make it "...effective and empowering for an individual to take private action to counter the abuse..." ...read more.

Conclusion

It can only be hoped that the situation will improve for the 25,000 people who are compulsorily detained each year (Update Supplement pp 7 - 10 & 31 and Workbook 4, p87). In conclusion then, it can be seen that there is ample legislation to empower vulnerable adults and offer them choice. However, it is "...fragmented, complex and difficult to grasp..." (workbook 4 p 20). Before 1989 childcare law was similarly fragmented. The Children Act 1989 with its welfare checklist to assist practitioners when difficult situations arise replaced earlier legislation with more simplified law. There is no such unifying statute for Adults. "...this absence of a legislative mandate means that social work practice within community care must be especially sensitive to the application of sound professional values..." (Reader, McDonald, p 146). "...Where it is appropriate to have recourse to legal intervention, that action must be informed by values with an appropriate emphasis on empowerment and self determination..." (Reader, Brammer p 174). We are a litigious society, being excellent at making laws, rules, guidance, policies and procedures, some of which are aimed at protecting vulnerable adults. However, the law also allows society to simultaneously under provide the resources needed to safeguard them because generally, the wide range of legislation that exists to protect them comes with only a limited enforcement resource and a "get out" clause that ensures Local Authorities only provide what they can afford, irrespective of need R v Gloucestershire County Council, ex parte Barry [1997] 4 All ER 421 (Workbook 4 p 44). The law appears to recognise that demand for health and social care services is infinite and the supply is finite; accordingly, care managers have to comply with the budgetary restrictions of the authorities that employ them whilst contemporaneously complying with the requirements of their own Professional Codes of Practice; a dilemma in itself. It is against this complex background that practitioners have to strive to use the law to empower and provide choice for service users, their carers and their families. ...read more.

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