The Journal of Adult Protection

ISSN: 1466-8203

Article publication date: 30 November 2012



Penhale, B. and Flynn, M. (2012), "Editorial", The Journal of Adult Protection, Vol. 14 No. 6. https://doi.org/10.1108/jap.2012.54914faa.001



Emerald Group Publishing Limited

Copyright © 2012, Emerald Group Publishing Limited


Article Type: Editorial From: The Journal of Adult Protection, Volume 14, Issue 6

Welcome to this final issue of volume 14. We are already at the end of the publication year for the journal, which seems strange given that the sun is shining and we are still in September, but that is the way of publication planning.

This issue is our second themed issue of the year and contains papers around the theme of the Mental Capacity Act, 2005. But before running through the papers in this issue, as in previous issues, here is a selection of recent news items relating to safeguarding and mental capacity, that readers may wish to consider further.

During June 2012, the London School of Economics’ Centre for Economic Performance published How Mental Illness Loses Out in the NHS. Professor Lord Richard Layard of the Mental Health Policy Group led the team of professionals responsible for the report. He noted that “The under-treatment of people suffering from mental illnesses is the most glaring case of health inequality in the NHS”. The report confirms that only around a quarter of:

  • young people with problem behaviour, anxiety or depression; and

  • adults with depression and anxiety requiring treatment receive any treatment (Centre for Economic Performance, London School of Economics and Political Science, 2012).

June also witnessed Tony Nicklinson’s right to die appeal to the High Court. At 58, Tony Nicklinson had “locked in syndrome.” A stroke during 2005 had left him paralysed from the neck down and unable to speak. Mr Nicklinson’s appeal failed and his family acknowledged its link with his death in late August within days of learning the unsuccessful outcome of the appeal. Mr Nicklinson’s wife has recently stated that she will continue the campaign for legal reform in this area.

In mid-July 2012 the White Paper “Caring for our future” was issued by the Department of Health (2012) in England, in order to introduce proposed reforms to the care and support system within adult social care. The associated draft care and support bill was set out to provide a single updated/modern piece of law for adult care and support, replacing complex and outdated legislation and following many of the reforms suggested by the Law Commission within their recent work on the reform of Adult Social Care Law. Only a small number of recommendations relating to adult safeguarding were made in the White Paper; these included (again) the statement that legislation to mandate the establishment of Adult Safeguarding Boards would be introduced. The White Paper was introduced with a consultation period spanning the summer ostensibly so that the proposals could be commented on during a three-month period. At the same time, however details of a proposed new safeguarding power concerning emergency powers of entry in specific situations of risk of harm were also introduced, again subject to the same period of consultation, until mid-October. As a number of organisations (Action on Elder Abuse, Ann Craft Trust and PASA) are all responding to the consultation process, we hope that as many readers (and other voluntary sector organisations) will also have taken the opportunity to respond to the consultation.

During August the Winterbourne View Hospital Serious Case Review was published by South Gloucestershire Council (Flynn and Citarella, 2012). The review was commissioned in the wake of the exposure of institutional abuse at this private hospital for adults with learning disabilities by BBC Panorama in 2011. Their broadcast showed support workers wrestling patients to the floor to be physically restrained; nurses ignoring the behaviour of support workers as they used water-based punishments; and a variety of behaviours resulting in the foreseeable distress and suffering of patients. With average weekly fees of £3.5k, the owners, Castlebeck Care (Teeside) Ltd benefited financially to a substantial degree. The hospital’s existence was entirely dependent on public contracts and yet it did not have to demonstrate either value for money or the efficient use of its resources. NHS commissioners showed a lamentable lack of interest in following up on what was happening to patients who had been placed at the hospital. Commissioning seemed to be reduced to place/bed hunting. Although the sentencing in courts of nurses and support workers will acknowledge the cruelties for which they were responsible, responsibility at the highest level remains to be addressed. The company appeared to make decisions about profitability over and above decisions about delivering an effective, safe and humane service (BBC, 2011).

As the giant street party of the London Olympics came to a flourishing end, it was the paralympics in particular – the vision of Dr Ludwig Guttman to show injured war veterans what they could do – which may well play a part in transforming the ways in which people with disabilities are perceived. Compelling narratives of disabilities overcome, barely believable standards of perfection and gripping feats of athleticism made for exciting viewing. While it confirms that London can put on a good show, it prompted a couple of interesting reflections:

  1. 1.

    The private security contractor, G4S failed to deliver the full 10,000 personnel required for the London Olympics. It meant that the army stepped in, in the form of c.3000 personnel, to make up the embarrassing shortfall. It prompted the Defence Secretary, Phil Hammond, to revise his view of the private sector noting that G4S had embarked on the contract, “incredibly leanly with little resilience.”

  2. 2.

    Atos was the main sponsor of the London Paralympics. Its sponsorship was not wholly welcomed by people with disabilities. It is a private company contracted by the Department for Work and Pensions to conduct “fitness to work” tests or Work Capability Assessments. Claimants scoring 15 points are likely to be found eligible for support while those with below 15 points are unlikely to qualify for benefits. To date there have been over 600,000 appeals with some 30 percent subsequently granted the benefit. There are also questions about the ability of the company to undertake appropriate assessments of mental health conditions.

During September 2012, we have learned some shocking facts about the Sheffield Hillsborough disaster of 15 April 1989. The deaths of 96 football supporters as a result of being crushed at the city’s Hillsborough stadium were scrutinised by an Independent Panel chaired by the Bishop of Liverpool, James Jones. The Independent Panel has revealed that as the tragedy was unfolding a major incident procedure was not activated; as many as 41 victims might have been saved had the response been more effective (the coroner had ruled that everyone had died by 3.15 p.m. and concluded that the cause was “misadventure”); there was a failure of leadership; the police failed to manage the crowds and were too slow in appreciating the severity of the crush. In addition, there was no systematic triage and no equipment with which to respond; the stadium did not meet minimum standards; 116 of 164 police statements were doctored; the blood of all victims was tested for alcohol (including that of a ten-year old); and a Police National Computer check undertaken on all who died with a blood alcohol reading above zero, apparently to impugn their reputations. As the former Lord Chancellor, Charles Falconer observed, there was “a concerted conspiracy to withhold the truth”. This is shocking on so many levels: the evidence is compelling that the police deliberately sought to distort the facts to disguise their own shortcomings and to discredit the football fans and Liverpool/Merseyside citizens. Whilst many people in the public, community and voluntary sectors worked so hard to respond to the huge distress, e.g. Liverpool City Council had a support team in place for several years – their police colleagues in South Yorkshire were more exercised by their own reputation.

It was not the institutions of state which uncovered these facts: there was a Judicial Inquiry by Lord Justice Taylor who wrote an interim and final report; there was civil litigation; there was a Health and Safety Executive investigation and there were criminal and disciplinary investigations. Additionally, there were inquests; there was a judicial review and a judicial scrutiny of new evidence and there was a private prosecution, yet it was the tenacity of families of the victims and the independent panel that after 23 years revealed the truth. There are echoes between some of these findings and those of a number of safeguarding-related enquiries and serious case reviews.

This special issue of the journal concerns issues relating to the “Mental Capacity Act”, 2005 and of the ability of individuals to take decisions concerning their own lives. The Act received Royal Assent in England and Wales in 2005 and much of the implementation occurred in 2007, so that many of the provisions have had some five years to become established elements of practice for social and health care professionals. Many of the individuals who lived in Winterbourne View were deemed to lack capacity relating to many activities of daily living and were treated in a variety of inhuman ways within a setting that seemingly lacked even basic principles of care and dignity. Equally many of the individuals who might be covered by emergency powers such as those proposed by the Department of Health might also be viewed as lacking capacity, which would of course, ignore one of the basic tenets of the Act, that decisional capacity should be viewed as time and situation/decision specific and an individual presumed to have decision-making capacity unless assessments prove to the contrary.

However, this presumption may not in itself be problem-free, as the findings from a recent Serious Case Review in Stockport indicate (reported in mid-September – Mellor, 2012). The young man, MH, who was murdered by “friends”, was refused an assessment by adult social care services learning disability services on the grounds that he had capacity and that his IQ test (which was used by the service to establish eligibility for assessment purposes) did not indicate that he had any learning disability. MH had been accommodated within the local authority children’s services between the ages of nine and 15 years and supported by them until he was 21 years old. He had a number of situational vulnerabilities in young adulthood: he was homeless, involved in substance misuse and offending behaviour, but although these elements might well have affected his decision-making capacity at various points, these were not picked up by adult care services as he was denied an assessment of need and did not come to the attention of adult safeguarding services. Although Stockport Borough Council have stated that their practice of establishing eligibility for assessment solely through the use of IQ tests will cease, such tests will continue to be used, with other measures, and it is not clear what weighting will be given to the results of such tests in these days of economic restraint. In addition the SCR found that there was little knowledge and understanding of the Mental Capacity Act or associated requirements by social workers within children’s services and a programme of training is to be undertaken in order to rectify this apparent failure within that council. However, these are issues to provide food for thought in relation to the Act and how practice has developed since its implementation over five years ago.

The first paper in this issue is by Lynne Phair and Jill Manthorpe of the Social Care Workforce Research Unit at King’s College, London and consists of findings from a review of policies and practices relating to the safeguarding the rights of patients who might be considered to be vulnerable, and how these were dealt with in one local NHS Trust. The review therefore covered policy and practice relating to the Mental Capacity Act and adult safeguarding. The findings from this review, which effectively acts as a case study, are used within the paper to develop recommendations for hospital and broader healthcare practice.

This paper is followed by a research paper covering by Matthew Gough and Lianne Kerlin from the University of Nottingham and concerns a study that evaluated the impact of training about the Mental Capacity Act within the residential care sector in one authority in the East Midlands. This qualitative study undertook a number of semi-structured key informant interviews and also included a focus group of managers and deputy managers of care homes in the area. The data presented cover limitations in the delivery and content of training about the MCA, together with a number of organizational factors concerning both training and implementation of knowledge within practice. A number of recommendations relating to future training in this area are developed within the paper.

The third paper in this issue is by David Hewitt, who writes regularly for the journal on legal matters. In this paper, David presents views concerning the Deprivation of Liberty Safeguards, which were introduced in April 2009 and how these have been developing and interpreted in recent years. Through a consideration of two Court of Appeal decisions and decisions by the House of Lords and the European Court of Human Rights, the paper explores how deprivation of liberty is being defined and used. This provides much food for thought about this complex area and it will be of interest to many readers to see how this develops in future.

Our fourth paper in this issue concerns an issue which is related to decision-making but covers the area of service user rights and risk taking, particularly in relation to adult social care. This paper by Alison Faulkner, an independent researcher, builds on earlier work that she undertook for the Joseph Rowntree Foundation last year. This paper focuses on the views of services users and disabled people about risks and risk taking, with particular and welcome attention paid in the paper to the views of service users with mental health difficulties.

The final paper in this special issue has been provided by one of our editorial board members, Alison Brammer of Keele Univeristy and provides some brief consideration of a number of recent legal cases that have appeared before the courts and that relate to the Mental Capacity Act. These cases again provide issues for readers to consider further, whether from policy, practice or research-related angles.

We are always interested in receiving material submitted by individuals for consideration for publication and are happy to discuss potential ideas for articles, particularly for those practitioners who regularly read issues and might be tempted to put pen to paper about work that they have been undertaking in their area, either as individuals, or organisationally. As stated in the previous issue of the journal, we are also looking to extend our pool of reviewers for both submitted papers and for books and training material, so if you think that you might be interested please do get in touch with one of the editors to discuss further. Although several people have already been in touch with us following this request, we are still wishing to increase our list of potential reviewers so do please consider this and get in touch. Finally, as we edge towards the end of the year, we hope that this issue of the journal continues to provide readers with some useful and thought-provoking material for further consideration and reflection concerning developments in adult safeguarding. We hope that you enjoy this issue and have wonderful festive celebrations ahead of you.

Bridget Penhale, Margaret Flynn


BBC (2011), “Panorama undercover care: the abuse exposed (Winterbourne View)”, Broadcast 31 May

Centre for Economic Performance, London School of Economics and Political Science (2012), How Mental Illness Loses Out in the NHS, LSE, London

Department of Health (2012), “Caring for our future”, White Paper, Department of Health, London

Flynn, M. and Citarella, V. (2012), Winterbourne View Hospital: A Serious Case Review, South Gloucestershire Council on Behalf of South Gloucestershire Safeguarding Adults Board, Bristol

Mellor, D. (2012), Serious Case Review in Respect of Adult A, Stockport Safeguarding Adults Board (SSAB), Stockport

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