This section sets out the essential work that must be considered throughout adult safeguarding. In every case there must be evidence of due diligence and attention to mental capacity and consent.
In addition to practice guidance highlighted throughout this document, staff may find the following information from SCIE helpful on adult safeguarding questions.
The Mental Capacity Act 2005 provides a statutory framework to empower and protect people who may lack capacity to make decisions for themselves; and establishes a framework for making decisions on their behalf.
This applies whether the decisions are life-changing events or everyday matters. All decisions taken in the adult safeguarding process must comply with the Act. The Mental Capacity Act outlines five statutory principles that underpin the work with adults who may lack mental capacity:
Learning from Safeguarding Adults Reviews undertaken by ADASS London shows that staff working with adults who lack mental capacity are still not fully complying with these principles.
The majority of adults that require additional safeguards are people who are likely to lack mental capacity to make decisions about their care and support needs.
Mental Capacity refers to the ability to make a decision about a particular matter at the time the decision is needed. It is always important to establish the mental capacity of an adult who is at risk of abuse or neglect, should there be concerns over their ability to give informed consent to:
The Act says that:
‘…a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for him/herself in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or brain. Further, a person is not able to make a decision if they are unable to:
Mental capacity is time and decision-specific. This means that an adult may be able to make some decisions at one point but not at other points in time. Their ability to make a decision may also fluctuate over time. If an adult is subject to coercion or undue influence by another person this may impair their judgement and could impact on their ability to make decisions about their safety. Thus, an adult could be put under pressure, for example in domestic abuse situations, that they lack the mental capacity to make the decisions about their safety. Staff must satisfy themselves that the adult has the mental ability to make the decision themselves, if not, it is best to err on the side of caution, identify the risks and consider support or services that will mitigate the risk. Preventing the person from isolation can be a protective factor. Involving an advocate could assist in such circumstances. Advocacy support can be invaluable and may be provided by an IMCA or other appropriate advocate. See also section 3.2.1 and Appendix 1 on Advocacy.
The Care Act 2014 statutory guidance advises that the first priority in safeguarding should always be to ensure the safety and well-being of the adult.
Making Safeguarding Personal is a person centred approach which means that adults are encouraged to make their own decisions and are provided with support and information to empower them to do so.
This approach recognises that adults have a general right to independence, choice and self-determination including control over information about themselves. Staff should strive to deliver effective safeguarding consistently with both of the above principles. They should ensure that the adult has accessible information so that the adult can make informed choices about safeguarding: what it means, risks and benefits and possible consequences. Staff will need to clearly define the various options to help support them to make a decision about their safety.
Adults may not give their consent to the sharing of safeguarding information for a number of reasons. For example, they may be unduly influenced, coerced or intimidated by another person, they may be frightened of reprisals, they may fear losing control, they may not trust social services or other partners or they may fear that their relationship with the abuser will be damaged. Reassurance and appropriate support may help to change their view on whether it is best to share information. Staff should consider the following and:
If, after this, the adult refuses intervention to support them with a safeguarding concern, or requests that information about them is not shared with other safeguarding partners, in general, their wishes should be respected. However, there are a number of circumstances where staff can reasonably override such a decision, including:
In such circumstances, it is important to keep a careful record of the decision making process. Staff should seek advice from managers in line with their organisations’ policy before overriding the adult’s decision, except in emergency situations. Managers should make decisions based on whether there is an overriding reason which makes it necessary to take action without consent and whether doing so is proportionate because there is no less intrusive way of ensuring safety. Legal advice should be sought where appropriate. If the decision is to take action without the adult’s consent, then unless it is unsafe to do so, the adult should be informed that this is being done and of the reasons why.
If none of the above apply and the decision is not to share safeguarding information with other safeguarding partners, or not to intervene to safeguard the adult:
It is important that the risk of sharing information is also considered. In some cases, such as domestic violence or hate crime, it is possible that sharing information could increase the risk to the adult. Safeguarding partners need to work jointly to provide advice, support and protection to the adult in order to minimise the possibility of worsening the relationship or triggering retribution from the abuser.
There are important differences between being treated under the Mental Health Act (MHA) and the Mental Capacity Act (MCA). If adults are treated under the MCA their lack of mental capacity to make decisions must be established. Adults who have mental capacity and refuse treatment for mental illness, should be treated under the MHA if they are subject to the Mental Health Act 1983.
Page updated on: 06.11.2017 at: 11.33