A survey of its implementation in England and Wales in 1988 and 1989

The compulsory removal of elderly people in England and Wales under Section 47 of the National Assistance Act and its 1951 Amendment: a survey of its implementation in England and Wales in 1988 and 1989

P. Nair

Introduction

The attitudes of society and the judiciary to deprived and needy members of the community have influenced their legal standing. From the initial formulation of the Poor Law through to the National Assistance Act there has been concern about the welfare of the old, the ill and the unemployed. The first local attempt to implement the proposals of the Royal Commission on the care of elderly, incurable and neglected people was in Bradford. The Bradford Corporation Act 1925 included a section 56 which stated:

1. If the Medical Officer certifies in writing that any person –

a. is aged or infirm or physically incapacitated and resides in premises which are insanitary owing to any neglect on the part of the occupier thereof or under insanitary conditions; or

b. is suffering from grave chronic disease.

And that such a person is unable to devote to himself or to receive from persons with whom he resides proper care and attention … and in the interests of the health of such person or any person with whom he resides for the removal of the person from the premise …

2. The Medical Officer shall give to any person proposed to be removed under the provisions of this Section … three clear days.

In 1928 the Parliamentary Committee accepted a draft which was similar to The Bradford Corporation Act 1925 and became Section 28 of the London County Council Act of 1928. This continued until 1946 when The Rucker Report on the Break Up of the Poor Law was considered by the Social Services Committee. The report assumed that the Poor Law legislation would be totally repealed and replaced by the National Insurance scheme and the National Health Service. In a section entitled ‘Miscellaneous’ it dealt with compulsory removal to institutions. This concerned the problem of ‘the old or infirm person who is living in a state of filth and neglect which cannot be remedied by his own incurably unclean habits or eccentricity or because domestic help cannot be found’. In such a case, the report felt that removal to an institution might be the only solution, but the elderly person might not be willing to enter on his or her own accord. Power to enforce a person’s removal to an institution in such circumstances was needed.

In 1948 the National Assistance Act together with the National Health Service became the basis of the modern welfare state. Section 47 of the Act dealt with ‘securing the necessary care and attention for persons who:

a. are suffering from grave chronic illness, or being aged, infirm or physically incapacitated are living in insanitary conditions and

b. are unable to devote to themselves, and are not receiving from other persons, proper care and attention.’

The Act gives no definition of grave chronic disease, infirmity, physical incapacity or insanitary conditions. The central figure in the administration of Section 47 is the ‘proper officer’ – who is often a community physician. However since the restructuring of community health other individuals including environmental health officers have fulfilled this role. The role of the ‘proper officer’ now lies within the Local Authority which remains responsible for the implementation of the legislation. If the proper officer ‘and another registered medical practitioner’ both certify that in their opinion it is necessary in the interests of the subject to remove him or her without delay, the application may be made by the approved community physician or ‘proper officer’ to the court whether or not notices of the intended applications have been served on the subject (National Assistance Act, Section 47 and its 1951 Amendment).

It is also necessary for the applicant to show that the manager of any institution to which it is intended to remove the subject is in agreement. If the certificate states that delay must be avoided, the application may be heard by a single magistrate and, if thought necessary, an order may be made ex parte. Such an order can only be made after the subject or some person in charge of him or her has been served 7 days clear notice of the time, date and place of the hearing of the intended application.

The need for 7-day notification led to an emergency amendment of the Act in 1950 when a 52-year-old spinster fell in the streets of Morley, Yorkshire and broke her thigh bone. She lay on the floor and would not accept the services of a doctor, nurse or home help. The Medical Officer of Health who was informed visited the patient and advised her removal to hospital. The woman rejected this proposal as she did all other offers of assistance. During the 7-days notice period ‘the local authority was powerless to help her … lying on the hard floor caused a number of sores which became infected with tetanus. At the end of the enforced waiting period the magistrate gave the necessary order and shortly after admission the woman died of lock-jaw’. As a result of this tragic event, Dr A. Broughton, a local MP introduced a Private Member’s Bill which conferred emergency powers allowing immediate removal provided this need was certified by two doctors.

No notice is required for removal under this 1951 Amendment either to the person to be removed or the manager of the receiving institution. A major defect in the administration of both Section 47 and its 1951 Amendment is the lack of legal aid available to people who wish to oppose an application for removal from their own home.

During the last 40 years 8000 people have been so removed. Little is known of their ultimate fate as no official records are kept. Although the work of Muir Gray [1, 2] has shown a gradual fall in the number of compulsory removals made under the Acts over the last two decades this method of hospitalizing vulnerable elderly people has not as yet fallen into disuse. In the light of concern about the role of doctors and social services in using statutory powers to remove people against their will, we examined the use of the Acts in England and Wales in 1988 and 1989.

Method

Directors of Public Health in 200 health districts throughout England and Wales were asked to identify proper officers working within their districts responsible for the administration of the Acts. Each proper officer was asked to provide details of requests for and removals of people under the Acts within their responsible areas. During 1988 and 1989 data were collected using a standardized form which was sent to all proper officers at the beginning of the study. Five weeks later a further copy of the form was sent to all those who had not replied.

Details collected on requests for admission included the source of referral: family practitioners, district nurses, social workers, neighbours or other people. Linked to the source of the request, background details were also recorded. These included a refusal of treatment, poor personal hygiene, self-neglect, vagrancy, behavioural problems and other causes.

The number of compulsory removals both under Section 47 and separately under the 1951 Amendment were recorded for each district, together with the age and ethnic status of the detainee. Details of each district’s population structure in 1989 were also requested from which the admission rates in people over 65 years of age were calculated. If possible, proper officers were asked to provide details of the outcome of an admission to hospital. Had the detainee ultimately returned home, been admitted to residential care or died? When the outcome was unknown this was recorded.

Statistical comparisons between various groups were undertaken using [[Chi].sup.2] analysis.

Results

During 1988 and 1989, 771 requests for compulsory removal were received by 148 proper officers (response rate 74%). Of these requests, 179 (23%) were made in the London regions of North West Thames, North East Thames, South West Thames and South East Thames (Table I). There was no significant correlation between the number of referrals and the size of population over the age of 65 years (r = -0.138). The majority of [TABULAR DATA FOR TABLE I OMITTED] referrals were from family practitioners (46%), but social workers also played a role (18%) (Table II).

Although district nurses, environmental health officers and neighbours had applied to the proper officer they were only responsible for 7% of the referrals. The commonest reason given for a request was self-neglect (Table III). Other factors leading to an approach to the proper officer included poor personal hygiene, refusal of treatment being cited in 19% of cases although the Acts do not allow for compulsory treatment. Vagrancy was seldom included as a factor in submissions.

Table II. Sources of referral for compulsory removal under Section

47 National Assistance Act and its 1951 Amendment

In a local study in Bradford [4] 36% of people removed were actually sectioned whereas the national figure was 21%. Bradford is not typical of the national situation in other ways, the majority of referrals being from social services (70%), 28% from general practitioners compared with 46% nationally. It is disturbing that the outcome in 24% of cases is unknown and the attitude of one respondent, ‘I am sorry but I am not willing to commit the time searching my files for the information’, coupled with a 26% failure to respond rate shows that voluntary monitoring of the Acts is unlikely to be effective.

Annual reports on Section 47 and its 1951 Amendment should become a statutory requirement. In the forty years since their enactment the hope of the Ministry of Health [5] that the need for these Acts would diminish has not been confirmed. It is largely for this reason that the routine collection of data on compulsory admission was abandoned. Clearly this requirement should be reinstated so that accurate figures may be collected. Amongst proposals put forward at a meeting of the Faculty of Public Health Medicine on 27 February 1990, it was suggested a Code of Practice should be developed which included holding data on each case centrally and the formulation of standards of care that could be used for audit purposes. Our present lack of knowledge on the outcome of 24% of cases who are removed cannot be allowed to continue.

It is clear that Section 47 and related legislation provide public health and local community officials with a powerful tool, which incorrectly used can remove ‘undesirable’ people from society. In order to ensure that its abuse does not become widespread it is essential that various reforms are initiated now. We would encourage the Lord Chancellor to consider these in any review of the concept of ‘competence’ in his current revision of the legislation. Any reform should include as a minimum:

1. Independent representation for any candidate for removal. The advocate should be supported from legal funds.

2. Independent review of detainees by a tribunal consisting of a legal representative, geriatrician or other relevant medical specialist and lay person – and not the magistracy.

3. National records of all requests for compulsory removal should be kept and an annual report of their fate published.

4. All detainees should be advised of their rights and all personnel concerned with their care should be advised of detainees’ right to refuse investigation and treatment.

5. The grounds for removal should be clearly defined and contained within any revised legislation.

The fact that similar legislation has never been used in Northern Ireland suggests that the role of a social worker in the successful placement of inadequate people is crucial.

References

1. Muir Gray JA. Section 47 and the Community Physician. Public Health 1980;84:296-300.

2. Muir Gray JA. Section 47: Bradford 1925 – United Kingdom 1988. J Public Health Med 1990;12:28-30.

3. Hoggett B. Mental health law. London: Sweet & Maxwell, 1984.

4. Towler JN, ’47 Varieties’: a summary of the use of Section 47 of the National Assistance Act 1948 in Bradford. Public Health 1988;102:485-92.

5. Ministry of Health Annual Reports, 1949 to 1955. London: HMSO.

P. NAIR, J. F. MAYBERRY Department of Medicine, Leicester General Hospital, Gwendolen Road, Leicester LE4 5PW

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