By Bridget Penhale, 13th September 2021
I recently attended most of a 3-day Court of Protection hearing (reported in a blog post by Prof. Celia Kitzinger) concerning alleged coercive and controlling behaviour and undue influence by a man (NC) in relation to an older woman (BU). BU had stated that she wished to marry (or form a civil partnership) with the man. BU’s daughter had applied for a declaration that BU lacks capacity to make decisions about contact and decisions about entering into marriage or civil partnership: she was also seeking an order to prevent NC from having contact with her mother – or, alternatively, a Forced Marriage Protection Order.
There were two expert witnesses engaged by the Court to undertake assessments of the woman. The first, a Consultant in Old Age Psychiatry, provided evidence about BU’s cognitive functioning and capacity. The second, a psychologist, provided evidence about coercive and controlling behaviour and undue influence in the relationship between the woman and her partner.
Although judgment has not yet been handed down, the hearing led me to reflect on several issues in relation to aspects of violence, abuse and safeguarding, and their intersection with capacity related issues.
One of the areas that interested me was the position taken by the Local Authority in relation to safeguarding BU.
One of the issues that was discussed in the hearing was whether some form of supervised contact between the partners in the relationship might be possible and if this could be provided by the Local Authority.
The barrister (Laura Twist) appearing for the Local Authority indicated that the Local Authority would not be able to assist with any proposed supervised contact between BU and NC as they did not have the necessary expertise to provide effective supervision. Further, the Local Authority did not have any required specialist in-house services in this specific area.
As a former social worker and social work manager, as well as an academic, the Local Authority position on supervised contact was somewhat surprising to me.
Social workers may not routinely provide supervision for contact arrangements in adult social care, but as a result of their training, most social workers have well-developed assessment skills, particularly in relation to observation and analysis of situations.
Social workers also develop experience in handling potential distress or even conflict during assessments (or reviews) of family members.
In addition, social workers in Children and Families Social Care may well be involved in supervising contact visits between parents/carers who are separated from their children, so might be able to assist their counterparts and colleagues in Adult Social Care to provide such a service, or to provide some guidance about this.
Such provision would not necessarily be seen as a ‘specialist service’ or one that requires either specific expertise or specialised training.
The Local Authority could also consider commissioning such a service from a provider (if use of social work time to carry out this task was seen as an expensive use of resource).
The second expert witness (Prof. Dubrow-Marshall) had proposed a specialised psycho-therapeutic intervention to address the coercive and controlling behaviour in the relationship. He had described this as particularly in the interests of the woman to help her to re-establish her self-identity. He had also said that the intervention should ideally also be provided to the man – suggesting that therapy would be offered both individually and possibly also together in due course.
The Local Authority’s position was that this was a health-related need and the Local Authority did not provide psychological services. This intervention would therefore need to be sought either through the NHS, or privately.
Although technically it would be possible for the Local Authority to commission such an intervention, the stated position was that the Local Authority would/could not commission such an intervention as it was related to a health need. The dividing line between health and social care need is a fine one in situations such as these – but given the expressed view that this was clearly a health need, it was an understandable outcome, particularly as Local Authorities do not generally have responsibility for providing psychological interventions.
In relation to whether the Local Authority would have any ongoing involvement with the individual, it appeared that much depended on the situation as it might develop, and which might arise from the final orders issued and the possibility of further arrangements that might be needed.
For example, if BU was deemed to have capacity to decide about marriage or civil partnership and was not prevented from entering into one (e.g. via a Forced Marriage Protection Order), then concerns about management of her financial affairs would be likely to occur, irrespective of the existence of the Financial Deputyship. Although she might have capacity to consent to marriage, she might not have capacity to make decisions about her financial affairs (and this latter point had been established at an earlier hearing in late 2020). Moreover, if the individuals were married or cohabiting it was considered that it would be extremely difficult for such a Deputyship in relation to financial affairs to operate effectively.
However, as it stood, at the time of the hearing, the Local Authority did not consider that there were any outstanding/unresolved needs relating to safeguarding and there was no open safeguarding matter, as the individual did not appear to have ongoing needs in relation to care and support that might require assistance from adult safeguarding. The previous safeguarding matter in relation to alleged/potential financial abuse had been resolved in November 2020 with the Court appointment of a Financial Deputy and no additional needs had been identified since then. At that point in time, it would seem likely that needs for care and support had been identified, as safeguarding duties only apply if the individual has care and support needs (irrespective of whether the Local Authority is meeting those needs at that time).
The Care Act 2014 criteria relating to adults in need of care and support are:
Needs which meet the eligibility criteria: adults who need care and support
2.—(1) An adult’s needs meet the eligibility criteria if—
(a) the adult’s needs arise from or are related to a physical or mental impairment or illness;
(b) as a result of the adult’s needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and
(c) as a consequence there is, or is likely to be, a significant impact on the adult’s well-being.
(2) The specified outcomes are—
(a) managing and maintaining nutrition;
(b) maintaining personal hygiene;
(c) managing toilet needs;
(d) being appropriately clothed;
(e) being able to make use of the adult’s home safely;
(f) maintaining a habitable home environment;
(g) developing and maintaining family or other personal relationships;
(h) accessing and engaging in work, training, education or volunteering;
(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
(j) carrying out any caring responsibilities the adult has for a child.
(3) For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult—
(a) is unable to achieve it without assistance;
(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;
(c )is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or
(d) is able to achieve it without assistance but takes significantly longer than would normally be expected.
(4) Where the level of an adult’s needs fluctuates, in determining whether the adult’s needs meet the eligibility criteria, the local authority must take into account the adult’s circumstances over such period as it considers necessary to establish accurately the adult’s level of need.
(NB: The items that I have highlighted in Bold font in 2) above, namely points g) and i), would appear the needs most likely to have applied in this situation).
Although the first expert witness, with a background in old age psychiatry, stated that from his assessment, the woman did not have capacity in relation to decisions about contact, and a previous lack of capacity concerning financial decisions had been established at the previous hearing (in November 2020) and was not re-visited here, it was not clear from the discussions in the hearing what the precise nature of the ‘disorder of mind or brain’ was, as the first witness in this hearing indicated that he did not consider that the impairment was wholly related to a dementia-type illness – and the second expert witness had restricted his assessment to coercive control and undue influence and had not been commissioned to undertake any assessment of capacity.
Equally it was not clear what needs for care and support might have previously been identified during consideration of capacity concerning financial affairs (see point above re: safeguarding duties), or indeed when, or if a Care Act assessment might have happened, which would have considered possible needs more fully, especially relating to the specific eligibility criteria under which an assessment would take place.
As an expert in safeguarding and particularly abuse of older people, the Local Authority position on safeguarding was intriguing. The sub-text of the statement that was made appeared to be that since the concerns about potential financial abuse of the woman had been dealt with some months previously at the previous hearing, there were not any ongoing safeguarding concerns that required attention – albeit in part due to existing restrictions on contact between BU and NC. Yet, this seemed to be a rather narrow conceptualisation of needs relating to abuse, neglect and safeguarding for the following reasons.
The parties in the hearing (apart from NC, who appeared as a litigant in person) appeared to be wholly in agreement that the woman had been subjected to coercive and controlling behaviour and undue influence.
In effect (as per the evidence from the second expert witness), her experience was of a totalising nature and essentially her identity had been subsumed into the man’s identity – and this was considered to still be the case even after some months of restricted contact between them.
Moreover, the man had previously breached the existing ‘No contact’ order/injunction on a substantial number of occasions (an example was given during the hearing of some 40 times in a two-month period) and had stated that he had done this as he believed it was in the woman’s best interests to have contact with him. The risks of experiencing continuing coercive control and undue influence (irrespective whether this was due to any malign intent or not) therefore appeared to remain high – and such experiences could result in care and support needs, including those resulting in an inability to protect herself from abuse and harm. A further social care assessment would be needed to determine if this was the case or not (this would be the situation whether those needs were being met by the Local Authority or not).
Coercion and control can occur without the emergence of any needs for care and support, but there could nonetheless be a significant impact on individual capacity, for example if decisions were being made under duress or intimidation, and a thorough assessment would help to establish the likelihood (or not) of this being the case. In this instance, the stance taken by the Local Authority seemed, principally to revolve around financial concerns, rather than a more holistic conceptualisation of safeguarding and consideration of violence, abuse, neglect and/or exploitation, including coercion, control and undue influence.
The Care and Support Statutory guidance (latest edition April 2021) which was developed to accompany the Care Act 2014 (and first issued in 2015) contains clear statements that when considering needs for safeguarding of adults at risk, definitions of abuse and neglect should not be drawn too narrowly. Although coercive and controlling behaviour and undue influence were not specifically originally included within the Care Act but appeared subsequent to the Act’s implementation within the Serious Crime Act 2015, understanding of the nature of such acts, perhaps particularly as they might relate to adults with likely needs for care and support have been developing in recent years, since the implementation of the latter Act. The statutory guidance framework on Coercive and Controlling Behaviour produced by the Home Office in December 2015 states clearly in the Introduction, at point 4:
Controlling or coercive behaviour should be dealt with as part of adult and/or child safeguarding and public protection procedures.
In any case, since in overall terms the Care Act is premised on a clearly stated principle of promoting and maximising individual well-being, it seems reasonably apparent that such behaviours, especially in the long-term are likely to have very negative impacts on an individual’s well-being, so should be particularly considered in relation to this aspect of the legislation. Understanding the well-being principle in relation to abuse and harm (and ultimately safeguarding) is thus clearly needed. Well-being appears to include the ability of individuals to live their lives free from abuse and/or harm and to be protected from these, if they should occur, or if there is risk of them happening. Risk to individual well-being and safety may therefore also require some consideration of safeguarding matters.
In the Care and Support Statutory guidance (updated 21 April 2021), the following statement appears in Chapter 14, which deals specifically with Safeguarding:
14.17 Local authorities should not limit their view of what constitutes abuse or neglect, as they can take many forms and the circumstances of the individual case should always be considered, although the criteria at paragraph 14.2 will need to be met before the issue is considered as a safeguarding concern.
Exploitation, in particular, is a common theme in the following list[1] of the types of abuse and neglect.
The criteria set out at 14.2 of the Guidance document are:
14.2 The safeguarding duties apply to an adult who:
- has needs for care and support (whether or not the local authority is meeting any of those needs)
- is experiencing, or at risk of, abuse or neglect
- as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
A further document issued by the Local Government Association, reminds local authorities about their responsibilities relating to safeguarding and also indicates that it is important not to take too narrow a perspective on abuse and harm (and associated risks of these happening) and the relevant links to the wellbeing principle (LGA 2020). Taking into account the potential effects of (different forms of) abuse and harm on individual wellbeing also requires consideration of the ways in which risk to an individual could be mitigated. This may well also include the need to use legislative powers, on occasion.
Safeguarding and consideration of apparent needs for care and support (and responding to them, if/as necessary) very much appear, therefore, to be central to situations of coercive and controlling behaviour. This seems to be particularly relevant if an individual lacks capacity to decide for themselves about key issues such as contact or marriage/civil partnership. If the lack of decisional capacity falls within the remit of the Mental Capacity Act 2005 (Section 2 (1)) then the Court of Protection is likely to need to be involved in such decisions and there is perhaps an imperative for the Local Authority to also be concerned about, if not involved in, the way that such issues might relate to safeguarding concerns (real/actual or potential and the associated risk of harm). As the Local Authority has a ‘lead agency’ role in adult social care, including safeguarding, there might be an expectation of involvement, nevertheless.
If however the lack of capacity is not due to any ‘impairment of, or disturbance in the functioning of the mind or brain’ but due to the existence of the coercive or controlling behaviour and undue influence from another person, then there may still be a need for the COP to be involved in determining matters of inherent jurisdiction – so the Local Authority could still have some interest in such aspects as they might relate to safeguarding, particularly as this would be likely to concern individual well-being.
A briefing by the Social Care Institute for Excellence (2014) provides further detail of the circumstances in which inherent jurisdiction might be accessed. The briefing emphasises an important and key point: that the purpose of the inherent jurisdiction is not to overrule the wishes of an adult with capacity, but to ensure that decisions are being made freely. In situations of coercion and control, however it may be very likely that the person cannot make decisions of their own volition.
Of note in s2(2) of the MCA is the point: “It does not matter if the impairment or disturbance is permanent or temporary“.
Given this statement, it could be possible to develop an argument that coercive or controlling behaviour from another person might render another individual incapable of taking their own decisions and thus constitute a disturbance in functioning of the mind or brain, even if of a temporary nature.
This could perhaps be especially likely if there were some degree of intimidation (even if not overt) experienced by the person involved, so that they were fearful of taking or expressing any decision that could be perceived as contrary to the view of the other person, or a perception that this would be going against the rules that they need to follow, that have been developed by the perpetrator (Pike, 2016). This could apply even if the total immersion of individual identity into another’s identity does not take place.
In any case, the impact of coercive and controlling behaviour on an individual’s capacity to take decisions needs to be considered as far as possible. Coercive power has been explained as being used to inflict unpleasant or painful consequences on someone acting on their own choices, so that the individual therefore chooses instead to follow the decisions or choices made by the person controlling them (Gilbraith 1982). The range of tactics used by perpetrators of such control includes isolation, intimidation, and threats, as well as control over aspects of daily life – in effect such people seem to work to ‘limit space for action’ (Home Office 2015: 4) by the individual who is subject to such control. Further, if there are additional factors that influence decisional capacity, such as a cognitive impairment or learning disability, then there could be a cumulative and significant effect on decision-making ability.
My recommendation is, then, that local authorities should therefore consider needs for safeguarding, in a broad sense, in situations of coercive and controlling behaviour and undue influence of adults with likely needs for care and support. This may include making the situation as safe as possible for the person and provision of ongoing monitoring and review of the circumstances, perhaps via a duty of care, even if not directly by those with safeguarding responsibilities.
Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and also an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets as: @bpenhale
References:
DHSC (2014) Care and Support Statutory Guidance, London: Department of Health and Social Care (updated 2021)
Gilbraith, J. (1983) The Anatomy of Power, Boston: Houghton-Mifflin
Home Office (2015) Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework, London: TSO
LGA (2020) Understanding what constitutes a Safeguarding Concern, London: Local Government Association (LGA)
Pike, L. (2016) Supporting people with social care needs who are experiencing coercive control, Dartington: Research in Practice for Adults (RiPfA)
SCIE (2014) Gaining access to an adult suspected to be at risk of neglect or abuse: A guide for social workers and their managers in England, London: Social Care Institute for Excellence (SCIE)
Legal:
Acknowledgements
Thanks are due to current experienced practitioners in Adult Safeguarding, including the Norfolk Safeguarding Adults Board (SAB) Board Manager, for their comments and expertise in safeguarding and coercive control and to the Open Justice Court of Protection Project for discussion about the COP hearing.
[1] The list of types of abuse is provided in the statutory guidance document
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