5.2. Appendix 2: Self-neglect: Legal remedies and other options

5.2.1. Introduction

The following information contains legal remedies and other options to consider in cases involving adults who are self-neglecting. Please note that links to external sites open in a new window.

5.2.2. Environmental Health

Power of entry/Warrant (Section 287 Public Health Act): Gain entry for examination/execution of necessary work required under Public Health Act. Police attendance required for forced entry. Non-engagement of person. To gain entry for examination/execution of necessary work (all tenures including leaseholders/freeholders).

Public Health (Control of Disease) Act 1984 Section 46 sets out restrictions in order to control the spread of disease, including use of infected premises, articles and actions that can be taken regarding infectious persons.

Prevention of Damage by Pests Act 1949: Local authorities have a duty to take action against occupiers of premises where there is evidence of rats or mice.

Enforcement Notice (Section 83 Public Health Act 1936): Filthy or unwholesome condition of premises (articles requiring cleansing or destruction). Prevention of injury or danger to person served (all tenures including leaseholders/freeholders/empty properties).

Litter Clearing Notice (Section 92a Environmental Protection Act 1990): Environmental Health to make an assessment to see if this option is the most suitable. Where land open to air is defaced by refuse which is detrimental to the amenity of the locality. An example would be where hoarding has spilled over into a garden area.

Environmental Protection Act 1990 Abatement: Abatement notice where any premise is in such a state as to be prejudicial to health or a nuisance (Sections 79/80).

5.2.3. Fire and Rescue

Regulatory Reform (Fire Safety) Order 2005: The fire brigade can serve a prohibition or restriction notice to an occupier or owner which will take immediate effect. This can apply to single private dwellings where the criteria of risk to relevant persons apply.

5.2.4. Police

Power of Entry (Section 17 Police and Criminal Evidence Act): Person inside the property is not responding to outside contact and there is evidence of danger. Information that someone inside the premises was ill or injured and the police would need to gain entry.

5.2.5. Housing

Anti-Social Behaviour, Crime and Policing Act 2014: A civil injunction can be obtained from the County Court if the court is satisfied that the person against whom the injunction is sought has engaged or threatens to engage in anti-social behaviour, or if the court considers it just and convenient to grant the injunction for the purpose of preventing the person from engaging in anti-social behaviour.

Conduct by the tenant which is capable of causing housing-related nuisance or annoyance to any person. ‘Housing-related’ means directly or indirectly relating to the housing management functions of a housing provider or a local authority.

Housing Act 2004: This allows enforcement action where either a category 1 or category 2 hazard exists in any building or land posing a risk of harm to the health or safety of any actual or potential occupier or any dwelling or house in multiple occupation (HMO). These powers range from serving an improvement notice, taking emergency remedial action, to the making of a demolition order.

The courses of action available to authorities as regards either category of hazard are:

• Serve an Improvement Notice requiring remedial works.
• Make a Prohibition Order to close the whole or part of a dwelling or to restrict the number of permitted occupants.
• Take emergency action.
• Serve a Hazard Awareness Notice.
• Make a Demolition Order.
• Declare a Clearance Area.

Housing Act 1985 and Housing Act 1988: In extreme cases, a landlord can take action for possession of the property for breach of a person’s tenancy agreement, where a tenant fails to comply with the obligation to maintain the property and its environment to a reasonable standard. This would either be under Ground 1, Schedule 2 of the Housing Act 1985 (secure tenancies) or Ground 12, Schedule 2 of the Housing Act 1988 (assured tenancies).

The tenant is responsible for the behaviour of everyone who is authorised to enter the property.

5.2.6. Town and country planning

Town and Country Planning Acts provide the power to seek orders for repairs to privately owned dwellings and where necessary compulsory purchase orders.

5.2.7. Animal welfare agencies

This includes agencies such as RSPCA or local authority agencies such as Environmental Health/DEFRA.

Animal Welfare Act 2006: Offences (improvement notice): Education for owner a preferred initial step. Improvement notice issued and monitored. If not complied with, can lead to a fine or imprisonment.

Cases of animal mistreatment/neglect. The Act makes it not only against the law to be cruel to an animal, but that a person must ensure that the welfare needs of the animals are met.

5.2.8. Mental Health Service

Mental Health Act 1983, Section 135(1): Provides for a police officer to enter a private premises, if need be, by force, to search for and, if thought fit, remove a person to a place of safety if certain criteria are met. The police officer must be accompanied by an Approved Mental Health Professional (AMHP) and a doctor.

Note: a place of safety is usually the mental health unit but can be the Emergency Department of a general hospital, or anywhere willing to act as such.

Evidence must be laid before a magistrate by an AMHP that there is reasonable cause to believe that a person is suffering from mental disorder, and is being:

• ill-treated,
• neglected,
• kept other than under proper control, or
• if living alone is unable to care for self, and that the action is a proportionate response to the risks involved.

Note: Section 135 lasts 72 hours and is for the purpose of removing a person to a place of safety with a view to the making of an assessment regarding whether or not Section 2 or 3, or 7 of the Mental Health Act should be applied.

Mental Health Act 1983, Section 2 and 3: Where a person has a mental disorder (as defined under the Act) of such a degree, and it is considered necessary for the patient’s health and safety or for the protection of others, they may be compulsorily admitted to hospital and detained there under Section 2 for assessment for 28 days. Section 3 enables such a patient to be compulsorily admitted for treatment for up to 6 months, this can then be renewed for a further 6 months and then yearly if necessary.

There must be two recommendations from s12 approved registered medical practitioners. The AMHP makes the application if it is considered appropriate and the less restrictive option.

Mental Health Act 1983, Section 7: A Guardianship Order may be applied for where a person suffers from a mental disorder, the nature or degree of which warrants their reception into Guardianship (and it is necessary in the interests of the welfare of the patient or for the protection of other persons). The person named as the Guardian may be either a local social services authority or any applicant.

A Guardianship Order confers upon the named Guardian the power to require the patient to reside at a place specified by them; the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; and the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

There is a requirement that any application is made upon the recommendations of two registered medical practitioners.

Mental Health Act 1983, Section 136: Section 136 allows police officers to remove adults who appear to be “suffering from mental disorder and in immediate need of care and control” from a public place to a place of safety for up to 24 hours and extended for no longer than a further 12 hours for specified purposes. The place of safety could be a police station or hospital.

Mental Capacity Act 2005: A decision can be made as to whether a person lacks the mental capacity to make specific decisions. If a person lacks capacity regarding a specific decision, any decision made must be in the person’s best interests. It is important to follow the empowering principles of the Act and ensure that any actions taken are the less restrictive option available.

A person who lacks capacity to make decisions about their care needs, and they are refusing support and at high risk of serious harm to self as a result.

Community Treatment Orders (CTOs): If a person has been in hospital under Section 3 or other treatment order of the Mental Health Act, a responsible clinician (usually a psychiatrist) can arrange for a person to have a Community Treatment Order (CTO). This means the person will have supervised treatment when they leave hospital. The person will need to follow the conditions of a CTO. The conditions aim to make sure the person gets the appropriate treatment and can also be used to try to protect the person from harming themselves or other people. Conditions can include where the person will live or where they will go to get treatment. A person can be brought back to hospital if they breach the conditions of their CTO.

5.2.9. Local authority

Building Act 1984 Section 76 is available to deal with any premises which are in such a state as to be prejudicial to health. It provides an expedited procedure i.e. the local authority may undertake works after 9 days unless the owner or occupier states an intention to undertake the works within 7 days. There is no right of appeal and no penalty for non-compliance.

5.2.10. Other legal considerations

Public bodies have a positive obligation under the European Convention on Human Rights (ECHR, incorporated into the Human Rights Act 1998 in the UK) to protect the rights of the individual. In cases of self-neglect, articles 5 (right to liberty and security) and 8 (right to private and family life) of the ECHR are of particular importance.

These are not absolute rights, i.e. they can be overridden in certain circumstances. However, any infringement of these rights must be lawful and proportionate, which means that all interventions undertaken must take these rights into consideration. For example, any removal of a person from their home which does not follow a legal process (e.g. under the Mental Capacity or Mental Health Acts) is unlawful and would be challengeable in the Courts.

5.2.11. Inherent jurisdiction of the High Court

The inherent jurisdiction of the High Court can be used to protect people who have the mental capacity to make decisions, but cannot exercise that capacity freely because they are:

• under constraint, or
• subject to coercion or undue influence.

5.2.12. Court of Protection

The Court must first determine whether the person has the mental capacity to make a decision on a specific matter, and then, decide what is in the individual’s best interests.

The Court of Protection makes decisions on matters relating to property and finance or health and welfare for people who lack the mental capacity to make a specific decision at a specific time (the Court can also be asked to make decisions on capacity outside of these areas such as forced marriage, contraception, entering into sexual relations).

If the individual has mental capacity, the Court has no jurisdiction over that matter.