Dame Louise Casey, leading an independent commission into adult social care, has recently (3 March) written to the Secretary of State for Health and Social Care, asking for immediate action on safeguarding, dementia and motor neurone disease. In relation to the former, she has asked that the DHSC:
Lead an urgent review of existing adult safeguarding statutory duties and powers, to test whether the current framework provides sufficient clarity and leverage in high-risk situations.
In the appendix to her letter, she identifies that this could include:
- clarifying what triggers the Section 42 duty for local authorities to make inquiries if it is suspected an adult with care needs is experiencing, or is at risk of, abuse or neglect
- considering whether mechanisms such as powers of entry would strengthen safeguarding while remaining consistent with adults’ rights;
- strengthening the links between safeguarding, inspection and regulation, potentially through clearer pathways for how SAR findings can inform regulatory action and the focus of inspections.
Wes Streeting has written to confirm that this will be carried out.
I might suggest that it is entirely obvious that there are gaps in the law here – and not just in relation to the often debated questions of whether there should be a statutory power of entry in England as there is in Wales, Scotland and (in the foreseeable future) Northern Ireland. If there were not gaps, the High Court would not be having to create solutions by exercising its inherent jurisdiction to fill in the gaps left by statute. Professor Rob George (and Baroness Hale) has recently and powerfully questioned whether this is a legitimate exercise for the High Court. Even if it is, it is, to use a technical term, wildly unsatisfactory because the lack of a statutory framework makes it nigh-on impossible to identify in advance what relief the court will actually grant.
More fundamentally, as Dame Louise Casey’s letter hints, there is a real issue about where in a democratic society we think the starting point should be as regards the rights balancing exercise, an issue I would suggest requires resolution in a more considered way than is possible in individual cases.
Back in the 1990s, as part of its Mental Incapacity Report, the Law Commission expressly considered (in Part IX) considerations relating to public law considerations for vulnerable people at risk. Those proposals were never taken forward – one consequence of which being that the High Court has been left to pick up the pieces. The Law Commission in 2025 identified that it would very much like to take forward such work for the 21st century (including, self-evidently, whether ‘vulnerability’ is the right touchstone); it might be thought that now is the time to ask them to do so.
