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32 Child & Fam. L. Q. 157 (2020)
Protecting Vulnerable Adults from Abuse: Under-Protection and over-Protection in Adult Safeguarding and Mental Capacity Law

handle is hein.journals/chilflq32 and id is 157 raw text is: 157 Protecting vulnerable adults from abuse: under-protection and over-protection in adult safeguarding and mental capacity law Jaime Lindsey* Keywords: Mental capacity - safeguarding - vulnerability - domestic abuse - protection orders In this article I explore law and practice at the intersection between adult safeguarding and mental capacity law to show that adults vulnerable to abuse are left under-protected in some cases and over-protected in others. In particular, I argue that the Mental Capacity Act 2005 has become a tool for protecting vulnerable adults from abuse, yet this is done in ways that restrict and control the vulnerable victim. Instead, the approach to adult safeguarding needs to shift from restricting and controlling vulnerable adults towards tackling perpetrators of abuse. Learning from recent developments in civil law responses to domestic abuse, I suggest that safeguarding adults law should similarly adopt an approach that focuses on perpetrators of abuse by incorporating a safeguarding adults protection order instead of resorting to mental capacity law. Introduction The domain of adult safeguarding crosses the boundaries of law, social care, health, criminal justice and beyond. Safeguarding concerns 'an adult's right to live in safety, free from abuse and neglect' and generally encompasses an obligation on the state to secure such freedom from abuse and neglect. Abuse in this context is a broad concept and can include physical, emotional, sexual and financial abuse. Given the breadth of safeguarding in English law, criminal law, mental capacity law, forced marriage, modern slavery, domestic abuse legislation, and aspects of public law are just some of the options where a safeguarding concern arises. Such a network of legal mechanisms might suggest that vulnerable adults have sufficient protection. However, the variety of different frameworks in English law can mean that adults vulnerable to abuse can fall between the gaps of the different legal regimes, being left under-protected in some cases and over-protected in others. In this article I focus on the intersection of adult safeguarding and mental capacity law to show how both under-protection and over-protection occur. Under-protection means a failure to sufficiently protect a person from abuse. Generally this will mean that no or limited action is taken, the victim is insufficiently supported, and the abuse is left to continue with few consequences for the perpetrator. As emphasised throughout, under-protection is particularly evident when allegations of abuse are reported but not pursued. For example, one social worker Jaime Lindsey, Lecturer in Law, School of Law, University of Essex, Wivenhoe Park, Colchester, C04 3SQ. The author would like to thank the two anonymous reviewers and journal editor for their comments, which have helped to improve the article. The author also thanks Erika Rackley and Donald Nicolson for their feedback on earlier drafts, as well as Stella Kontou for her very helpful research assistance. 1 Department of Health and Social Care, Care and support statutory guidance (DHSC, 2018), available at: www.gov.uk/ government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#safeguarding-1, chapter 14.7.

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