A vulnerable point

The Department of Health is reviewing its2000 adult protection guidance ('Safeguarding Adults', Department of Health and Home Office, October 2008). At the moment, the guidance '“ and the safeguards to which it gives access '“ relates solely to 'vulnerable' adults. But what does that mean?

How is vulnerability defined?

The notion of vulnerability precedes the adult protection guidance. It is used in the Care Standards Act 2000, for example, and also at the heart of the special measures available to certain witnesses in criminal proceedings (Youth Justice and Criminal Evidence Act 1999, s.16).

The guidance of 2000 is contained in the 'No secrets' document ('No Secrets: Guidance on Developing and Implementing Multi-agency Policies and Procedures to Protect Vulnerable Adults from Abuse', Department of Health and Home Office, 2000). It says that a vulnerable adult is 'one who needs community care services because of disability, age or illness; and who cannot take care of himself, or protect himself against significant harm or exploitation'. Such a person might expect to be protected by a comprehensive 'inter-agency' framework.

There is concern, however, that this framework is more restricted than it should be, and that the problem is one of definition.

The House of Commons Health Committee, for example, says 'No Secrets' should not be confined to people requiring community care services, and that it should also apply to old people living in their own homes without professional support and anyone who can take care of themselves ('Elder Abuse', House of Commons Health Committee, 2007, Second Report of the Session 2003-04, Volume 1, HC 111-I, paras 8 & 14).

This echoes the Association of Directors of Adult Social Services (ADASS), which has argued that 'vulnerability' 'seems to locate the cause of abuse with the victim, rather than placing responsibility with the acts or omissions of others' ('Safeguarding Adults: A National Framework of Standards', ADASS, 2005, p.5).

As the new consultation document notes, there is 'a broad belief that the definition does need revision, but no clear agreement on how this revision may take place' (Department of Health and Home Office, October 2008, op. cit., chapter 9) and the Law Commission has recently weighed into the debate. As part of a much wider review of adult social care law, it says it wants to look for itself at the notion of vulnerability ('Adult Social Care: Scoping Report', Law Commission, November 2008, paras 4.280-4.293).

Alternatives

So, what are the alternatives? The Law Commission speaks favourably of the Safeguarding Vulnerable Groups Act 2006, which, it says, understands vulnerability 'purely through the situation an adult is placed [in]' (Law Commission, 2008, op. cit., para.4.290). Some have argued, however, that it would be better to abandon the notion of vulnerability and instead, seek to protect people who are simply 'at risk'.

That, certainly, is the purpose of legislation recently enacted in Scotland. The Adult Support and Protection (Scotland) Act 2007 covers people who '(1) are unable to safeguard their own well-being, property, rights or other interests; (2) are at risk of harm; and (3) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.'

ADASS, too, supports the use of risk as the keystone of adult protection, although its definition differs from the one used in Scotland. It says an adult at risk is one 'who is or may be eligible for community care services' and whose independence and wellbeing are at risk due to abuse or neglect (ADASS, 2005, op. cit.). This reference to community care need not fall foul of the Commons Health Committee, however, for ADASS says it includes 'those people who are assessed as being able to purchase all or part of their community care services but whose need '“ in relation to safeguarding '“ is for access to mainstream services such as the police'.

It remains to be seen what the adult protection review will yield, and which notion the Government will choose. But its task might be even more important than the consultation document suggests.

The stakes

With the coming of the Mental Capacity Act 2005 and the creation of a new Court of Protection, the High Court has lost the work it used to do with incapable people. Recently, however '“ and perhaps not coincidentally - it has set about transforming its inherent jurisdiction so as to offer protection to what it calls 'vulnerable adults'. It proposes nothing less than the regulation of 'everything that conduces to [their] welfare and happiness' (Re SA (Vulnerable adult with capacity: Marriage) [2006] 1 FLR 867).

Adult protection is too important a task to be scuppered by questions of nomenclature. Everyone concerned needs to know precisely when the safeguards will kick in; when, it seems, an adult will be 'vulnerable'. And the apparent willingness of the High Court to supplement the 'No Secrets' guidance with real, enforceable rights means that as far as such people are concerned, the stakes have never been higher.