Section 47 of the National Assistance Act 1948

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Due to be repealed as the Care Act 2014 comes into force.

(Do not confuse this with Section 47 of the Adults with Incapacity (Scotland) Act 2000".)

Contents

Introduction

This is very rarely used, far less often than it is considered as a way out of an inconvenient situation.

Under the (rare) conditions where a genuine public nuisance (implying hazard) exists owing to someone's insanitary habits, the Act gives powers to remove them to a suitable place for further evaluation and care - see below.

Contemplating its use requires even more careful thought than using various Sections of the Mental Health Act, and usually considering it implies the MHA has been considered, and is thought not to apply.

The only reasons why anybody has ever suggested we consider a S47 under the 1949 National Assistance Act have been:

1) Because they are creating an environmental hazard for others. In such cases there are nearly always other environmental health laws (or, for example, sections 31 and/or 32 of the Public Health Act 1984), which are more appropriate;
2) To act in the (alleged!) best interests of somebody who is declining to go into hospital or a nursing/care home. In such instances it is more appropriate, to use the Mental Capacity Act 2005.

Details of the law

The law states that: “In order for [an order under section 47 of the National Assistance Act 1948] to be granted the person has to be:

  • suffering from grave chronic disease
  • aged and infirm
  • physically incapacitated
  • be living in insanitary conditions
  • AND unable to devote to themselves, and are not receiving from others, proper care and attention”.

Interpretation of the law

The wording of the law is is very unclear. The Act has variously been interpreted to mean that, for an order to be given, the patient must be:

  • suffering from grave chronic disease
  • OR aged and infirm
  • OR physically incapacitated
  • AND be living in insanitary conditions
  • AND unable to devote to themselves, and are not receiving from others, proper care and attention”.

OR, in contrast to this:

  • suffering from grave chronic disease
  • OR aged and be living in insanitary conditions
  • OR infirm and be living in insanitary conditions
  • OR physically incapacitated and be living in insanitary conditions
  • AND unable to devote to themselves, and are not receiving from others, proper care and attention”.

The first version seems to imply that, regardless of whichever other conditions are used, the person concerned has to be living in insanitary conditions. The second version suggests that if the person concerned is ‘suffering from grave chronic disease’ then they need not also be living in insanitary conditions.

At least one expert in public health law believes that insanitary conditions are NOT required if there is grave chronic disease - but this has never tested in court. Even if it were, Section 47 orders are usually given in the magistrates court, which does not create precedent.

It is clear, however, that the individual’s conditions can be insanitary, even if the house is not. Dressings, clothes, and immediate surrounds (within 6”) count as conditions.

Section 47 and the Human Rights Act

The Human Rights Act (HRA) permits people to be lawfully detained for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.

This would appear to cover the use of Section 47 in at least some instances.

The detention of persons because they are elderly or suffering from grave chronic disease would not (necessarily) be covered by the exceptions listed in the HRA - it would, for example, enable courts to detain people suffering from e.g. AIDS, despite their being competent (having capacity) if they were "unable to devote to themselves, and are not receiving from others, proper care and attention" - in which case use of Section 47 would be incompatible with the HRA, and thus unlawful.

How to obtain a Section 47 order

Orders are obtained on behalf of the local authority. A proper officer - often, but not necessarily, a medical practitioner working in the local public health department - is required to sign the application. If you think a patient should be admitted under a Section 47 order, the place to start is with your local authority (e.g. a district or borough council or equivalent).