1. Introduction

The term ‘inherent jurisdiction’ refers to the High Court’s ability to make declarations, orders and grant injunctions in situations where there is no statutory power to intervene to protect an adult. It has been described by courts as a ‘safety net’ as it allows them to intervene where there is no other legal avenue available. It can be used in situations not covered by existing legislation, such as the Mental Capacity Act 2005 (MCA), Mental Health Act 1983 or legislation in relation to domestic abuse, coercive and controlling behaviour or forced marriage. However, it cannot be used in a way that would directly contradict any legislation.

It can be used to fill a gap where there is no existing applicable legislation, but not as a way of getting around or circumventing existing legislation.

In all cases, it is necessary to first consider what, if any, other legislative mechanisms exist. It is only after considering whether any existing legislation covers the position. that it can be clear whether there is a gap to be filled, and whether recourse to the inherent jurisdiction is necessary.

Any legal professions or organisation with legal standing can bring an application to the High Court. This includes local authorities, NHS trusts and Integrated Care Boards.

2. Scope of the Inherent Jurisdiction

The inherent jurisdiction can be used to fill a legal ‘gap’ and so can cover a variety of scenarios.  By its very nature, there is no legislation setting out the precise remit of the inherent jurisdiction, and it is instead developed on an ongoing basis by way of case law.  For this reason, legal advice must be obtained as soon as possible in circumstances where it is thought that an application to the High Court may be required.

One of the main areas where the inherent jurisdiction has been used in recent cases is in situations where an adult is not able to freely make their own decisions, but this is not as a result of mental incapacity. In these situations, the courts have used the term ‘capacitous but vulnerable’ which means the person has mental capacity but is vulnerable in some other way.

For example, an adult may be subject to external influences, such as coercion or undue influence from another person, which limits their ability to make their own decisions freely. The adult’s decision-making is therefore impaired, and they are unable to make their own choice freely, but this is because of coercion or undue influence, rather than because of a disturbance or impairment in the functioning of their mind or brain, as required by the MCA (see Mental Capacity and Code of Practice chapter).

Case law has established that a person may have physical or cognitive impairments but those will not necessarily, on their own, mean that they are ‘at risk’ so as to make use of the inherent jurisdiction necessary.  On the other hand, a person may have no physical or cognitive impairment but is still ‘at risk’ as a direct result of the coercion or abuse from another person, and so may come within the remit of the inherent jurisdiction.  A family member may use influence over another family member, but for the situation to come within the inherent jurisdiction, the influence must be ‘undue’ or ‘coercive’ so the adult is incapable of making their own decisions.

The inherent jurisdiction may also be used in situations where action is required to safeguard an adult from risks from themselves, such as self-neglect or hoarding, where the adult has mental capacity and so action under legislation is not an option, but the risks they cause to themselves are so great that court intervention is necessary.

It may also be used where an adult lacks capacity but the situation is not covered by the Mental Capacity Act, for example where the adult falls into a legislative ‘gap’ between the Mental Health Act 1983 and the Mental Capacity Act 2005 (see Interface between Mental Capacity Act 2005 and Mental Health Act 1983 chapter).

3. Types of Order

Before making any order, the court must be satisfied that it is necessary and proportionate to do so.  The order must be reasonable and proportionate to the circumstances and not go beyond the minimum necessary to safeguard the adult.

Orders may or may not be time-limited.

Orders may require someone to take specified actions (such as to allow access to an adult) or may set out what someone must not do (such as to threaten or assault an adult).

Types of orders which may be made under the inherent jurisdiction include (but are not limited to) orders:

• allowing social care professionals to gain access to adults where there are safeguarding concerns but where, for example, another person is denying or restricting access to the person about whom there are concerns and there are no grounds for an order under existing legislation;
• freezing assets to prevent the adult’s money or property being wrongly transferred or spent;
• recovering money and / or property belonging to the adult which has already been disposed of;
• overturning a decision about the transfer of money belonging to the adult which has already been made.

Orders made under the inherent jurisdiction can be directed either at the adult or at the person who is coercing them.

For example, orders have been made against the person coercing the adult preventing them from:

• refusing access to the adult by health and social care professionals;
• not allowing the adult to have contact with family and / or friends;
• behaving in an aggressive and / or confrontational manner to health and social care staff;
• interfering in the provision of care and support to the adult;
• assaulting or threatening the adult;
• seeking to persuade or coerce the adult into transferring ownership of property (such as money or their home);
• trying to persuade or coerce the adult into moving into a care home or nursing home;
• behaving in a way towards the adult which is degrading or coercive, such as having unreasonable restrictions on which rooms in the house the adult is allowed in, or punishing the adult, particularly if those punishments are degrading or otherwise humiliating.

Case law has established that, in general, it is better for orders to be made in relation to the person coercing the adult, rather than directed at the adult themself. This is because such an order is likely to be less of a restriction for the adult, and so more proportionate and more likely to promote their independence and empowerment.

Where an order is requested which is directed at the adult, the High Court* has stated that, in order to satisfy the requirements for the order to be both necessary and proportionate, the applicant should be able to demonstrate (with supporting evidence) that they have considered:

• whether the adult will be informed about the order;
• whether the adult is likely to understand the purpose of the order;
• whether the adult will appreciate the impact if the order is breached or broken.

*Redcar  & Cleveland Borough Council v PR [2019] EWHC 2305 (para. 46)

See Appendix 1: Case Law regarding mental health and inherent jurisdiction and deprivation of liberty safeguards and inherent jurisdiction

4. Legal Summary of the Inherent Jurisdiction

The inherent jurisdiction is the High Court’s jurisdiction or power to protect ‘incompetent’ and also ‘vulnerable’ adults. Usually this is where a person has mental capacity, and therefore the MCA cannot be used. It is a jurisdiction that can only be used by the High Court, not the Court of Protection (CoP).

The legal standard is set out by Munby J, Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), at 76-83

McFarlane LJ in A Local Authority v DL & Ors [2012] EWCA Civ 253 at paras 54, 62 described it as:

The High Court has jurisdiction over those who, if not incapacitated, are reasonably believed to be i) under constraint, or ii) subject to coercion or undue influence, or iii) other disabling circumstance: “some other reason deprived of capacity to make relevant decision, disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

4.1 Basic principles

To be able to use the inherent jurisdiction, the proposed intervention must be necessary and proportionate.

The Court will first attempt to use inherent jurisdiction to assist creative decision-making, rather than taking a decision for the adult: LBL v RYJ and VJ [2010] EWHC 2665 (COP) “facilitative, rather than dictatorial, approach of the court”;

A Local Authority v DL & Ors [2012] EWCA Civ 253 at para 68 per McFarlane LJ noted that inherent jurisdiction is not limited solely to affording a vulnerable adult a temporary safe space’ within which to make a decision free from any alleged source of undue influence. The Court may, in appropriate cases, impose long-term injunctive relief to protect the vulnerable adult.

5. Practice Guidance for using the Inherent Jurisdiction

5.1 Documents required

The relevant legal team will make the application to the High Court using a Part 8 claim form and will include:

• draft order;
• witness statement;
• source documents.

5.2 Grounds / what to show

• Explanation of how the court has jurisdiction; for example coercion; undue influence; other disabling influences.
• That the proposed intervention is necessary.
• That the proposed intervention is proportionate; this should include the alternative options which have been considered.

5.3 Legal process

• The application is filed in the Family Division of the High Court.

Points to consider / discuss include:

• Does the application need to be lodged without notice being given to those who are alleged to be controlling the person?
• Is it urgent?
• If it is not urgent, should the application be started with a request for directions (which is when the court gives instructions to the parties on how they are to prepare the case) ?
• Are there any interim measures required?
• Does there need to be any fact-finding hearing?

5.4 Where a person has borderline mental capacity

If mental capacity is uncertain at the start of the proceedings, there are two options:

1. Commence in High Court and explain why;
2. Commence in the CoP and transfer to the High Court if required.

If urgent action is required, it is best to start proceedings in the High Court.

6. Further Reading

6.1 Relevant chapters

Mental Capacity and Code of Practice

6.2 Relevant information

Guidance Note: Using the Inherent Jurisdiction in Relation to Adults (39 Essex Chambers)

Gaining access to an adult suspected to be at risk of neglect or abuse (SCIE)

Appendix 1: Case Law

Redcar & Cleveland Borough Council v PR [2019] EWHC 2305 (para. 46)

The facts centred around a capacitous (person with mental capacity) but vulnerable 32-year-old woman who was living with her parents. Her mental health deteriorated, and she was admitted to hospital. While she was in hospital, she made allegations about her father. The woman’s mental health improved, and when she was well enough to be discharged from hospital, the local authority became concerned that she was planning to return home to live with her parents. The authority issued an application under the inherent jurisdiction for protective orders.

In its judgment at paragraph 46, Cobb J observed that “before a local authority made an application under the court’s inherent jurisdiction, which was designed to regulate the conduct of a subject by way of injunction, particularly where mental illness or vulnerability was an issue, it should be able to demonstrate (and support with evidence) that it had appropriately considered:

• whether the person was likely to understand the purpose of the injunction;
• (ii) would receive knowledge of the injunction; and
• (iii) would appreciate the effect of breach of that injunction. If the answer to any of these questions was in the negative, the injunction was likely to be ineffectual and should not be applied for or granted since no consequences could flow from the breach”.

There is not yet clear case-law as to the extent to which orders may be made under the inherent jurisdiction which would have the effect of depriving the adult of their liberty.

Appendix 2: Deprivation of Liberty Safeguards and Inherent Jurisdiction

The use of the inherent jurisdiction to authorise a deprivation of liberty must comply with article 5 of the European Convention on Human Rights and is illustrated in the case of NHS Trust v Dr A [2013] COPLR 605.

The facts involved an Iranian doctor, Dr A, who went on hunger strike to recover his passport that had been confiscated by the UK Borders Agency following his failed claims for asylum. He suffered from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether to accept nourishment. It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. This treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. A legislative gap had occurred; as he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder.

2.1 Issues and judgement

The legal question was whether the High Court had power to make order under inherent jurisdiction to authorise forcible feeding of an  incapacitated adult where a deprivation of liberty could not be authorised under MCA 2005 section16(A)(1): “If a person is in ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. It was not disputed that subjecting Dr A to forcible feeding amounted to a deprivation of liberty, but the difficulty was identifying how that deprivation was to be authorised in law.

The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as being in Dr A’s best interests (paragraphs 94 & 96) In NHS Trust v Dr A, the Courts firmly established that the inherent jurisdiction was available to provide a remedy particularly, when none was available under the comprehensive MCA 2005 legislation that would meet the care of such a mentally incapacitated adult.

“[96] In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Art 5. Unless and until this court or another court clarifies the interpretation of s 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under s 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA and (b) involves the deprivation of a patient’s liberty.”

This decision illustrates how the inherent jurisdiction is a flexible legal tool to plug legislative gaps. It can not only protect adults who fall outside the scope of the MCA but can also be raised for those persons who need to be deprived of liberty and fall between the provisions of the MHA and MCA.

Being professionally curious is essential to help identify abuse and neglect which isn’t always obvious. Asking questions, looking, listening, and reflecting on information received is vital to keep adults safe from abuse and neglect.

Professional curiosity is a reoccurring theme in Safeguarding Adult Reviews (SARs).  The purpose of reviews is to learn lessons and influence best practice. Lack of professional curiosity is highlighted locally and nationally as an area to develop.

KSAB’s 7-Minute Professional Curiosity Briefing has been updated to give practitioners practical tips, to help be professionally curious within your role.

Other useful links:

• Rochdale Safeguarding Partnership (YouTube video)
• How to be professionally curious in virtual settings (Leeds Council)
• Professional Curiosity Guidance (Norfolk SAB)

Please get in touch with [email protected] if you have any further questions.

‘Cuckooing‘ is the term for when professional criminal gangs target the homes of adults who they have identified as vulnerable. They then use the property for dealing drugs, hiding firearms, stolen goods and money and other crimes. Arson and violence are other crimes associated with such gangs. The adult victim may have care and support needs, but this is not always the case.

The female cuckoo bird lays its eggs in other birds’ nests, which is where the term comes from.

2. Cuckoo Victims

Cuckooing victims may include:

• people with drug or alcohol problems;
• people already known to the police;
• older people;
• people who have mental or physical health problems;
• people with learning disabilities;
• female sex workers;
• single mums; and
• people living in poverty.

Other adults may also be at risk.

Where the victim is known to have drug problems, criminals often offer them free drugs in exchange for using their home for dealing.

Once they have gained control of the adult and their home there is significant risk to the victim of physical and psychological abuse, sexual exploitation and violence. Such adults are often used as drug runners, to move drugs from one place to another on behalf of the criminals, often under threat of violence if they do not agree.

The adult may be made to travel to places which are a distance away from their local area, but such exploitation make also take place in properties in the same vicinity. Movement of people for the purposes of exploitation is a criminal offence covered by the Modern Slavery Act 2015 (see Modern Slavery chapter), as it is a type of trafficking and slavery.

In such circumstances the victim may not feel they cannot go to the police or tell other professionals, as they are frightened that they will be suspected of being involved in drug dealing or being identified as a member of the gang. They may be afraid this could result in them being evicted from their home. Some victims feel forced out of their homes, or are actually made to leave by the gangs, which makes them homeless.

3. Gangs

Gangs may use a number of such residential properties, moving between them within hours, days, weeks or longer in an effort to avoid being detected by the police.

They may use accommodation in rural areas, including serviced apartments, holiday lets, budget hotels and caravan parks, again in an effort to avoid police detection.

Such criminals are very skilled at identifying adults who they think are in some way vulnerable to their coercive behaviour. They are often very business-like in how they operate, with a view to make as much money as possible.

4. Signs of Cuckooing

4.1 Signs an adult is being exploited or abused

The following are some of the signs that an adult is being exploited or abused:

• they associate with someone older than them and / or someone who controls what they do and where they go;
• they travel alone to places far away from home, where they may not have any connections;
• they get more telephone calls or people calling to their property than they usually do;
• they have physical injuries that they cannot, or do not, explain easily;
• they seem quiet and withdrawn, as if something is concerning them that they cannot talk about;
• they are known or suspected to be carrying or selling drugs;
• they are going missing from home or college, work or work placements;

• they have new clothes, possessions, more than one mobile phone or money than they cannot usually afford.

4.2 Signs of cuckooing in a local neighbourhood

The following are some of the signs that accommodation belonging to a vulnerable adult has been taken over by criminal gangs:

• people are entering and leaving the property, often throughout the day and night;
• there is an increase in the number of cars (including new vehicles), bikes, or taxis or hire cars outside the property;
• there is an increase in anti-social behaviour in and around the property, including litter and drug using equipment outside;
• the adult stops attending, or misses, appointments with support and / or healthcare services;

• professionals who visit the property to see the adult see new people there, who may also not introduce themselves;

• the property may not have many or any valuable possessions inside and may start to become neglected as items and stolen and damage is caused by people coming to the property and repairs not made;
• there are signs of drug use in and around the property, including discarded needles, crack pipes for example.

Such properties are often multi-occupancy accommodation (for example, a block of flats or a house that has been converted to a number of flats) or a social housing property.

5. Taking Action

If a member of staff is concerned about that an adult with care and support needs is being victimised by criminal gangs, particularly in their own home they should:

• discuss their concerns with their line manager;
• inform Merseyside Police; and
• raising a safeguarding concern with Knowsley Safeguarding Adults Team.

If a member of staff believes an adult is a victim of cuckooing but they do not have needs for care and support, this is still a crime and should be reported to the police.

All concerns or suspicions should be recorded in the adult’s case records as well as actions that have been taken and decisions that have been made (see Case Recording Standards and Information Sharing chapter).

6. Further Reading

6.1 Relevant chapter

Safeguarding Procedures for Responding in Individual Cases

6.2 Relevant information

Tackling ‘Cuckooing’ and County Lines Drug Networks (Crimestoppers)

1. Introduction

This chapter is a summary of the main parts of the Domestic Abuse Act 2021. For further information please see the Domestic Abuse Statutory Guidance (Home Office).  

2. Definitions

2.1 Domestic abuse

The Domestic Abuse Act provides a definition of domestic abuse.

It is the behaviour of one person towards another where:

a) both people are aged 16 or over and are personally connected to each other (see Section 2.2, Personally connected); and

b) the behaviour is abusive.

Behaviour is defined as abusive if it consists of any of the following:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse;
• psychological, emotional or other abuse.

It does not make any difference whether the behaviour is a single incident or consists of a number of incidents over a period of time.

Economic abuse is any behaviour by a person that has a negative impact on the other person’s ability to:

• obtain, use or maintain money or other property (such as a mobile phone or car. This would also include pets);
• buy goods or services (for example utilities such as heating, food or clothing).

Under the Act, abusive behaviour towards a child who is under the age of 16 is considered child abuse, not domestic abuse (see Knowsley Safeguarding Children Partnership Procedures). Children are also recognised as victims of domestic abuse if they see, hear, or experience the effects of the abuse, and are related to the victim and / or perpetrator of the domestic abuse, or if the victim and / or perpetrator have parental responsibility.

Domestic abuse also includes so called ‘honour’ based abuse (see So Called Honour Based Abuse and Forced Marriage, the Crown Prosecution Service , forced marriage (see Forced Marriage, gov.uk) and female genital mutilation (see Female Genital Mutilation, gov.uk).

2.2 Personally connected

The Act introduced the term ‘personally connected’. This applies to people who:

• are married to each other;
• are civil partners;
• have agreed to marry one another or have a civil partnership (whether or not they are still planning to);
• are or have been in an intimate personal relationship with each other;
• have, or have had, a parental relationship in relation to the same child;
• are relatives.

2.3 Controlling or coercive behaviour

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

Controlling behaviour is a range of acts designed to make a person subordinate and / or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

Both coercive and controlling behaviour can apply to people who are no longer in a relationship, but who were previously.

3. Victims and Perpetrators of Domestic Abuse

The majority of domestic abuse is committed by men against women, however victims do not come solely from one gender or ethnic group. Men are abused by female partners, abuse occurs in same sex relationships, can be committed by young people against other family members or their own partners (teenage domestic abuse is the most common), as well as abuse of older relatives or those with physical or learning disabilities. Domestic abuse occurs irrespective of social class, racial, ethnic, cultural, religious or sexual relationships or identity.

4. Working with People where there are Concerns of Domestic Abuse

On average, victims live with abuse for between 2 to 3 years before seeking help, and will experience 50 incidents of abuse before they receive effective help (see Safelives).

Social work interventions with adults who are experiencing, or at risk of, domestic abuse should seek to:

• support victims to get protection from violence by providing relevant practical and other assistance;
• identify those who are responsible for perpetrating such abuse, so that there can be an appropriate criminal justice response;
• provide victims with full information about their legal rights, and about the extent and limits of statutory duties and powers;
• support non-abusing parents in making safe choices for themselves and their children, where appropriate.

Professionals from any agency may receive a disclosure from a victim or perpetrator about domestic abuse, or have concerns that such behaviour may be taking place. All staff working with adults and families should be familiar with signs of domestic abuse, and know how to respond.

Concerns about domestic abuse may also be reported by a member of the extended family, friend or neighbour for example. Such information must be responded to in accordance with the Knowsley Safeguarding Adults Board Procedures.

Social workers in contact with adults who are threatening or abusive to them as professionals should be aware of the potential for that individual to be also abusive in their personal relationships. They should, therefore, assess whether domestic abuse may be occurring within the family environment.

4.1 Carrying out assessments

See also SafeLives: Resources for identifying the risk victims face, including the Domestic Abuse, Stalking and Harassment (DASH) checklist.

When carrying out any assessments, social workers should consider seeing the adult on their own so they can ask whether they are experiencing, or have previously experienced, domestic abuse. This may include asking direct questions about domestic abuse and asking whether domestic abuse has occurred whenever adult abuse is suspected. This should be considered at all stages of assessment, enquiries and intervention.

When assessing domestic abuse and the needs of the adult living with domestic abuse, the following factors should be considered:

• age and vulnerability of the adult;
• the adult’s description of the effects of the abuse upon them;
• frequency and severity of the abuse, how recent and where it took place
  whether there were any children or other adults who either witnessed the abuse or was in the property at the time;
• any weapons used or threatened to be used;
• whether the adult victim has been locked in the house or prevented from leaving;
• has there been any actual or threatened abuse of animals.

The social worker should decide, based on the assessment and their professional judgement, whether there is a threat to the safety of the adult or anyone else in the home environment.

If the threat is imminent, the police should be contacted immediately, by telephoning 999. If the threat is not imminent, the professional should raise a safeguarding enquiry (see Safeguarding Procedures for Responding in Individual Cases chapter).

The police are often the first point of contact for adults experiencing domestic abuse. However, the ambulance service and hospital Accident and Emergency Departments may also often be involved as a first point of contact.

Social workers should ensure that they make a full record of all discussions, including with whom they take place and any actions taken, including referrals to other agencies (see Case Recording Standards and Information Sharing chapter).

Under the Domestic Abuse Act the local authority has a duty to provide support to victims of domestic abuse and their children in refuges and other safe accommodation. In addition, all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance (see Homelessness chapter).

5. Domestic Violence Disclosure Scheme

See also Domestic Violence Disclosure Scheme Factsheet (gov.uk)

The Domestic Violence Disclosure Scheme (also known as Clare’s Law) is made up of two elements: the Right to Ask and the Right to Know.

Under the Right to Ask, a person or relevant third party (for example, a family member) can ask the police to check whether a current or ex-partner has a violent or abusive past. If records show that an individual may be at risk of domestic abuse from a partner or ex-partner, the police will consider disclosing the information.

Right to Know enables the police to make a disclosure on their own initiative if they receive information about the violent or abusive behaviour of a person that may impact on the safety of that person’s current or ex-partner. This could be information arising from a criminal investigation, through statutory or third sector agency involvement, or from another source of police intelligence.

6. Professional Safety

It is important to assess any potential risks to social care staff, carers or other staff who are providing services to a family where domestic abuse is or has occurred. In such cases a risk assessment should be undertaken. Social care staff should speak with their manager and follow the local guidance for staff safety. Such issues should also be discussed during supervision (see Supervision chapter).

7. Further Reading

7.1 Relevant chapters

Safeguarding Procedures for Responding in Individual Cases

7.2 Relevant information

Domestic Abuse Statutory Guidance (Home Office)  

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

Domestic Abuse – How to Get Help (Home Office)

Safelives

Controlling or Coercive Behaviour Statutory Guidance Framework (Home Office)

1. Introduction

Sections 20 and 21 of the Criminal Justice and Courts Act 2015 are a part of the Government’s response to the public inquiry conducted by Sir Robert Francis QC into the events at Mid-Staffordshire NHS Foundation Trust (Report of the Mid Staffordshire NHS Foundation Trust  Public Inquiry – also known as the Francis Report).

There were already offences in relation to the ill-treatment and wilful neglect of adults receiving treatment for mental disorder (under the Mental Health Act 1983) and of those who lack mental capacity. However, there was previously no equivalent specific offence in relation to those being cared for who had full mental capacity (see Mental Capacity chapter). Under these sections of the Act, it is a criminal offence for an individual to ill treat or wilfully or deliberately neglect a person for whom they care, in their role of being a care worker.

‘Wilful’ means that the care worker has acted deliberately or recklessly in relation to the person who they are paid to care for.

‘Ill-treatment’ is also a deliberate act, where the individual knew that they were ill treating a person, or were being reckless as to whether they were.

Ill treatment and neglect are separate concepts. Ill treatment does not necessarily have to result in physical harm and can involve emotional and psychological damage – that the actions have caused or have the potential to cause to the adult and their family (see case law R v Newington1990, 91 Cr App R 254). It can also include a failure to protect the privacy and dignity of a vulnerable adult when the victim is unaware that they are being ill treated.

These offences apply to both organisations and individuals.

The Care Quality Commission (CQC) has a role to play as the regulator in setting standards and ensuring adults are safeguarded from abuse and improper treatment. CQC can prosecute registered care providers whom they have judged to have breached the standard. Criminal offences only apply to cases of wilful neglect where there is evidence of the worker or organisation acting or omitting to act deliberately, even though they know there is some risk to the adult as a consequence or because they do not care about that risk. Genuine errors or accidents by a care worker should not be caught within these offences.

2. Care Worker Offence

Under the Act a ‘care worker’ means an individual, who, is paid to provide health or social care. They may also be a director or be in a similar post within an organisation that provides health or social care.

‘Paid work’ means when a person is paid for carrying out care (see Appendix 1, Further Information, Paid work).

Health care includes all types of physical health or mental health care provided to adults. This also includes health care in relation to protecting or improving public health, and procedures that are similar to types of medical or surgical care but are not provided in connection with medical conditions which are excluded health care (see Excluded Healthcare) .

Social care includes all types of personal care, physical support and other practical assistance provided for people who need such care or assistance. This may because of:

• age;
• Illness;
• disability;
• pregnancy;
• childbirth;
• dependence on alcohol or drugs; or
• any other similar circumstances.

This would not include a person who provided such care which was secondary to carrying out other activities.

A care worker found guilty of such an offence could receive a prison sentence of up to five years or a fine (or both); or for a less serious charge a prison sentence of up to 12 months or a fine (or both).

Unpaid family carers and friends cannot be charged with these offences. They may be investigated and charged under different legislation, however.

3. Care Provider Offence

The term ‘care provider’ means:

• a corporation or association that provides and / or arranges health care (apart from excluded health care – see Section 2, above) or social care for an adult;
• a person who is not the care provider, but provides health care or social care which has been arranged by the care provider, including where the individual does not provide care but supervises or manages those who do;
• a director or similar post holder in an organisation which provides health care or social care;
• a person who provides such care and employs or has arrangements with other people to assist them in providing such care.

A care provider commits an offence if:

• a care worker who is caring for an individual (as part of the care provider’s arrangements) ill treats or wilfully neglects that individual;
• if the care provider’s activities are managed or organised in a way which leads to a gross breach of a duty of care by the care provider to the individual who is ill-treated or neglected, and if that had not happened, the ill treatment or wilful neglect would not have occurred or would have been less likely to occur.

A person arranging for the provision of such care does not include someone who makes arrangements under which the provision of such care is secondary to carrying out other activities.

References made to providing or arranging the provision of health care or social care do not include making:

• direct payments for community services and carers;
• direct payments for health care;
• direct payments for care and support.

4. The Duty of Candour

There is a requirement on health and social services to be open and honest with patients and service users when things go wrong. Professionals are expected to be candid with adults who use their services and their families when serious events occur and not obstruct fellow professionals who raise concerns.

The Francis Report recommends that healthcare providers must inform patients or other authorised persons as soon as practicable when they believe that the treatment of care provided has caused death or serious injury to that patient and provide information and explanation as the patient may reasonably request.

It also recommends a duty of candour on individual professionals to inform their employers where they believe or suspect that the treatment has caused death or injury. It is a criminal offence to obstruct a person in the performance of these duties or provide misleading information.

The Care Act includes a duty of candour as one of the requirements for providers registered with the CQC. All providers must act in open and transparent manner with adults who use their services and their families about their care and treatment.

There is also a requirement to notify and provide information and support to the adult or the person acting on their behalf where:

(i) an incident has resulted in or appears to have resulted in the death of an adult who uses the service ; or

(ii) caused severe harm or moderate harm or prolonged psychological harm to them.

The regulations also set out a notification requirement and it is a criminal offence for workers who commit breaches of the duty of candour.

Appendix 1: Further Information

1. Meaning of Wilful

The meaning of “wilful “has been developed in the case of R -v–Sheppard [1981) AC the House of Lords  held that a man “wilfully” fails to provide adequate medical attention for [P] if he either:

(a)  Deliberately does so knowing that there is some risk that P’s health may suffer unless he receives such attention; or

(b) Does so because he does not care whether P may in need of medical treatment, or not’

2. Paid work

Paid work does not include:

• payment in respect of the individual’s expenses;
• payment to which the individual is entitled as a foster parent;
• a benefit under social security legislation;
• or a payment made under arrangements under Section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).

1. Introduction: What is Modern Slavery?

Modern slavery is a serious and often hidden crime where people are exploited by criminals, usually for profit. It includes human trafficking, slavery, servitude and forced labour.

In all types of modern slavery a victim is, or is intended to be, used or exploited for someone else’s gain, with no respect for their human rights. Criminals involved in modern slavery can be people working alone, those running small businesses or part of a wider organised crime network.

Adult victims will usually be coerced or forced into modern slavery, by using threats, force, deception, or abusing their position of power over victims. However, vulnerable adults (and children) cannot give their informed consent to be in such a position and therefore exploitation – even without any type of coercion – could still be modern slavery.

The scale of modern slavery in the UK is significant. Modern slavery crimes are being committed throughout the country and there have been increases in the number of victims identified every year. In 2023, the Home Office received 8,622 referrals for adult potential victims via the National Referral Mechanism (NRM) process; a further 4,929 reports of adult potential victims were received through the Duty to Refer (DtN) process (see Section 5, National Referral Mechanism and the Duty to Refer). Adults who consented to a referral for support through the NRM were most commonly from Albania, Vietnam or Eritrea.

Modern slavery can be difficult to spot and often goes unreported. Staff working in social care, health, local authorities and any other role which comes into contact with the public could potentially see signs of modern slavery. Staff should be trained to:

• understand the signs or indicators of modern slavery;
• know how to take appropriate action; and
• provide possible victims with protection and support, based upon their individual needs. It is essential that professionals recognise that those who were previously victims of modern slavery (known as survivors) may be at risk of re-trafficking and further harm and take action to prevent this. This is because they may be found by their previous exploiters or coerced by new exploiters.

Multi-agency working is vital to ensure that victims are identified, protected and safeguarded.

Modern slavery is an adult safeguarding concern, and the local authority has legal duties to provide support for suspected or known victims. Under the Modern Slavery Act 2015, all modern slavery offences are punishable by a maximum sentence of life imprisonment. For modern slavery concerns regarding children, please see the Knowsley Safeguarding Children Partnership Procedures.

2. Types of Modern Slavery

Modern slavery includes the following:

• human trafficking;
• slavery, servitude and forced or compulsory labour.

2.1 Human trafficking

Human trafficking is where a victim is forced or deceived into a situation where they are then exploited. It involves the movement of people for exploitation and can occur across international borders or within a country.

The Council of Europe Convention on Action against Trafficking in Human Beings defines ‘human trafficking’ as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Human trafficking involves three basic elements:

1. action;
2. means; and
3. purpose of exploitation.

It should be seen as a process involving a number of actions which are all connected, rather than a single act at a particular point in time, as noted in the table below:

Elements of human trafficking in adults	What this means
Action	recruitment, transportation, transfer, harbouring or receipt, which includes an element of movement whether national or cross-border;
Means	threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability;
Exploitation	for example, sexual exploitation, forced labour or domestic servitude, slavery, financial exploitation, removal of organs (see below for more detail)

(taken from Modern Slavery Statutory Guidance: How to Identify and Support Victims, Home Office)

To be considered as human trafficking, a victim must be trafficked for the purposes of exploitation. This can be:

• sexual exploitation: in most cases of human trafficking for sexual exploitation purposes victims will be female, but there are also male victims. Rape and violence are common, and victims are often tricked and given false promises of good jobs and economic opportunities;
• forced or compulsory labour: victims have to work for little or no pay and their employers will not let them leave or find another job. If they are foreign nationals, their passports may be taken by their exploiters so they cannot return home. They may also be forced to live in terrible conditions. Forced labour can take place in any sector of the labour market, including manufacturing, food preparation and processing, agriculture, hospitality, nail bars and hand car washes;
• forced criminality / criminal exploitation: victims are forced to commit illegal activities, including pick pocketing, shop lifting, begging, growing and cultivating cannabis, being exploited across different areas of the country – know as ‘county lines’, benefit fraud, sham marriage and other crimes. The Modern Slavery Act states that victims who have been forced into criminality should not be prosecuted;
• removal of organs: victims are trafficked for their internal organs (typically kidneys or the liver) to be taken (‘harvested’) to be transplanted in other people (who usually pay for the new organs);
• domestic servitude: victims work in a household where they may be ill-treated, humiliated, made to work long and tiring hours, forced to work and live in very difficult conditions or forced to work for little or no pay. Sometimes, someone who is a victim of forced marriage can also be a victim of domestic servitude.

2.2 Slavery, servitude and forced or compulsory labour

As well as trafficking, modern slavery also covers cases of slavery, servitude and forced or compulsory labour. Some people may not be victims of human trafficking because they have not moved out of their local area, but can still be victims of modern slavery.

Slavery, servitude and forced labour are illegal in the UK.

For a person to be a victim of slavery, servitude and forced labour there must have been:

• the means (being held, either physically or through threat – for example, threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability);
• a service (a person has to have provided a service for the benefit of others – for example, begging, sexual services, manual labour, domestic service).

3. Identifying Victims

It can be difficult to identify victims of modern slavery; they are often reluctant to come forward, may not recognise themselves as victims or, because they are scared, they may tell their stories with obvious mistakes or having left some information out.

Some adults are more vulnerable to becoming victims of modern slavery, including:

• young men and women;
• pregnant women;
• former victims of modern slavery (including people who do not consent to enter the National Referral Mechanism, see Section 5), who may be at risk of being re-trafficked;
• people who are homeless or at risk of becoming homeless;
• people with drug and alcohol issues;
• people who have learning difficulties, disabilities, communication difficulties, chronic developmental or mental health disorders or other health issues;
• people who have experienced abuse before;
• people in some deprived / poor areas where there are few job opportunities are more likely to be recruited by traffickers, pretending to be recruitment agencies / genuine employers;
• people struggling with debt;
• people who have lost family or suffered family breakdown or have limited support networks;
• people with criminal records who employers may not want to take on;
• illegal immigrants who are not allowed to work and therefore do not have an income;
• older people who are lonely and do not have much money;
• people who speak no or very little English and / or cannot read or write in their own language;
• overseas domestic workers.

3.1 Signs to look out for

Victims of modern slavery can be found anywhere. However, there are certain industries where they are more likely to be found such as nail bars, car washes, food preparation / processing factories, domestic service, farming and fishing, building sites and the sex industry.

The Modern Slavery Statutory Guidance (Home Office) provides the following indicators:

3.1.1 General indicators

Victims may:
Believe that they must work against their will	Have false identity or travel documents for example a passport (or none at all)
Be unable to leave their work or home environment	Be found in or connected to a type of location or venue likely to be used for exploiting people
Show signs that their movements are being controlled / feel that they cannot leave	Be unfamiliar with the local language
Be subjected to violence or threats of violence against themselves or against their family members and loved ones	Not know their home or work address
Show fear or anxiety	Allow others to speak for them when addressed directly
Have injuries that appear to be the result of an assault	Be forced, threatened or deceived into working in poor conditions
Not be allowed to have the money they have earned	Be disciplined / controlled through punishment
Be distrustful of the authorities	Receive little or no payment
Be afraid of telling anyone their immigration status	Work very long hours over long periods
Come from a place where human trafficking victims are known to come from	Live in poor or substandard accommodations
Have had the fees for their transport to the country of destination paid for by organisers of human trafficking, who they must pay back by working or providing services	Have no access to medical care
Have no or not much contact with other people	Only be allowed to have limited contact with their families or with people outside of their immediate environment
Be unable to speak freely with others	Believe that they must work until they have paid off the debt they are told they owe
Be dependent on their ‘bosses’ / facilitators	Have believe the false promises of their bosses / facilitators.

3.1.2 Physical indicators

• Physical injuries – with no clear explanation as to how or when they got the injuries or which are either not treated or only partly treated, or there may be lots of / unusual scars or broken bones which have healed.
• Work related injuries – often through having poor or no personal protective equipment and health and safety arrangements.
• Physical consequences of living in captivity, neglect or poor environmental conditions – for example, infections including tuberculosis (TB), chest infections or skin infections, malnutrition and vitamin deficiencies or anaemia.
• Dental problems – from physical abuse and / or not being able to see a dentist.
• Worsening of existing long term medical conditions – these may be untreated (or poorly treated) conditions such as diabetes or high blood pressure.
• Being disfigured – cutting, burning, or branding someone’s skin may be used as punishment or a way to show that an exploiter ‘owns’ the person.
• Pain after a surgical operation – infection or scarring from organ harvesting, particularly of a kidney.

3.1.3 Psychological indicators

• Expression – they may seem in fear or anxious.
• Depression – they may have a lack of interest in getting involved in activities, in socialising with other people or appear to feel hopelessness.
• Attachment and identity issues – they can become detached from other people or become over-dependent (or both). This can include being dependent on their exploiters.
• Unable to control emotions – for example they may often swing between sadness, forgiveness, anger, aggression, frustration and / or emotional detachment or emotional withdrawal.
• Difficulties with relationships – they may have difficulty trusting others (either have a lack of trust or be too trusting) which causes difficulties in their relationships and difficulties assessing warning signs in their relationships.
• Loss of independence – for example they may have difficulty in making simple decisions, tendency to give in to the views / desires of others.

 3.1.4 Situational and environmental indicators

• Exploiters keep victims’ passports or identity documents, contracts, any payslips, bank information or health records.
• They have a lack of information about their rights as a visitor in the UK or a lack of knowledge about the area in which they live in the UK.
• They act as if they are being coerced or controlled by another person.
• They may go missing for periods.
• They may be fearful and emotional about their family or dependents.
• They may have limited spoken English, for example only being able to talk about being exploited and not being able to have any other topic of conversation.
• They may be limited in where they can go (victims may not be ‘locked up’ but are not able to move around freely) or being held in isolation.
• They may have their wages withheld (including deductions from wages).
• Debt bondage – they may have to work until they have paid off a debt to the traffickers / exploiters.
• They may have abusive working and / or living conditions, including having to work a lot of overtime.

3.2 Impact on victims

Victims of modern slavery are forced, threatened or deceived into situations of humiliation and being under the control of their exploiters, which undermines their personal identity and sense of self. The impact of these experiences can be devastating.

It is important for all professionals to understand the specific vulnerability of victims of modern slavery and use practical, trauma-informed methods of working which are based upon basic principles of dignity, compassion and respect and which recognise the impact of trauma on the emotional, psychological and social wellbeing of people.

Victim’s voices must always be heard, and their rights respected.

4. Reporting Concerns

4.1 Taking action

When responding to concerns of modern slavery,  the safety, protection and support of the potential victim must be the first priority. They may need emergency medical care. Only independent interpreters should be used. Never use any other adults who are with potential victims, as they may (unknown to the member of staff) be associated with the exploiters and therefore may not tell the truth about the person’s situation.

4.1.1 Immediate risk of harm

If it is suspected that someone is in immediate danger, the police should be contacted on 999.

4.1.2 No immediate risk of harm

There are a number of options that can be taken:

• the police can be contacted on 101;
• the Modern Slavery helpline can be contacted: 0800 0121 700.

4.1.3 Adult Social Care

Victims of modern slavery are often adults who are at risk of, or who are experiencing, abuse or neglect, particularly when they have been rescued from a situation of exploitation. In this instance, it should be considered whether a Section 42 (safeguarding) enquiry is required. When making a safeguarding referral, the cooperation of the adult victim should be requested, taking into account their needs and wishes.

Even where an adult has been removed from a harmful situation, they can be at risk of re-victimisation. Even if there is no immediate risk relating to safety or the person’s welfare, it is important to discuss any concerns with the safeguarding adults team.

4.2 Seeking advice

Advice about what action to take can be sought from your manager, the safeguarding adults team, the local police public protection unit (contactable via the police switchboard) or the Modern Slavery Helpline.

5. National Referral Mechanism and the Duty to Refer

For further guidance and the online referral forms see:

• Modern Slavery Victims: Referral and Assessment Forms (gov.uk)

The National Referral Mechanism (NRM) provides a framework for identifying and referring potential modern slavery victims and ensuring they receive appropriate support.

Support for adult victims may include:

• access to legal aid for immigration advice;
• access to short-term Government-funded support through the Modern Slavery Victim Care Contract (accommodation, material assistance, translation and interpretation services, counselling, advice, etc);
• outreach support if already in local authority accommodation or asylum accommodation;
• assistance to return to their home country if not a UK national.

5.1 Referral or Duty to Notify

An online referral system is used for making referrals into the NRM and also for Duty to Notify (DtN) referrals.

Referrals into the NRM can only be made by staff who work for designated ‘first responder’ organisation – this includes local authorities (see Appendix 1 below).

Whether a DtN referral or referral into the NRM is made depends on obtaining the consent of the adult victim.

For an adult to be referred to the NRM, they must provide informed consent. This means they should understand what the NRM is, what support it can provide, and what the possible outcomes are if they are referred.

It should be presumed that an individual has the mental capacity to make a decision about whether to consent to entering the NRM. When there may be concern about a person’s mental capacity to make a decision about whether or not to consent to entering the NRM, steps should be taken to try to support them to make the decision. Where a person does not have the capacity to consent, a best interests decision should be taken. Before a decision is taken in the best interests of an individual, it is vital to consult with any other agencies involved in the care and support of the individual. See Mental Capacity chapter.

If the adult does not consent to a NRM referral, a DtN referral should always still be made, using the online referral form.

5.2 Support for potential victims who do not consent

Adult potential victims who choose not to enter the NRM may still be eligible for other state support. They may still be:

• in immediate risk of harm, in which case the police should be contacted by calling 999;
• eligible for housing support through the local authority or for other support from the government where they have recourse to public funds;
• entitled to make a claim for asylum or another type of immigration status or stay in asylum support if they have an active claim (where the person does not have the right to reside in the UK);
• able to receive emergency medical care;
• at risk of further exploitation, see Section 4.1.3, Adult Social Care.

6. Further Reading

6.1 Relevant information

Modern Slavery and Exploitation Helpline – free confidential advice in over 200 languages

Modern Slavery Statutory Guidance – How to Identify and Support Victims (Home Office) 

Modern Slavery Training Resource Page (Home Office) 

Modern Slavery Resources (Home Office)

 

Appendix 1: NRM First Responder Organisations and Responsibilities

In England and Wales, a ‘first responder organisation’ is an authority that is authorised to refer a potential victim of modern slavery into the National Referral Mechanism. The current statutory and non-statutory first responder organisations are:

• police forces;
• certain parts of the Home Office; UK Visas and Immigration, Border Force, Immigration Enforcement and National Crime Agency;
• local authorities;
• Gangmasters and Labour Abuse Authority (GLAA);
• Salvation Army;
• Migrant Help;
• Medaille Trust;
• Kalayaan;
• Barnardo’s;
• Unseen;
• NSPCC (CTAC);
• BAWSO;
• New Pathways;
• Refugee Council.

First responder organisations have the following responsibilities – it is for the organisation to decide how it will discharge these responsibilities:

• identify potential victims of modern slavery and recognise the indicators of modern slavery;
• gather information in order to understand what has happened to victims;
• refer victims into the NRM via the online process (in England and Wales this includes notifying the Home Office if an adult victim doesn’t consent to being referred – DtN);
• provide a point of contact for the competent authority to assist with the Reasonable and Conclusive Grounds decisions and to request a reconsideration where a first responder believes it is appropriate to do so.