3.1 ADULT SAFEGUARDING PRACTICE
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.
3.1 Mental Capacity and Consent
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:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
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:
- Planned interventions and decisions about their safety;
- Their safeguarding plan and how risks are to be managed to prevent future harm.
3.1.1 Mental Capacity Assessment
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:
- Understand the information relevant to the decision; or
- Retain that information long enough for them to make the decision; or
- Use or weigh that information as part of the process of making the decision; or
- Communicate their decision (whether by talking, using sign language or by any other means such as muscle movements, blinking an eye or squeezing a hand)’.
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.
3.1.2 Consent in relation to safeguarding
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:
- Explore the reasons for the adult’s objections – what are they worried about?
- Explain the concern and why you think it is important to share the information.
- Tell the adult with whom you may be sharing the information with and why.
- Explain the benefits, to them or others, of sharing information – could they access better help and support?
- Discuss the consequences of not sharing the information – could someone come to harm?
- Reassure them that the information will not be shared with anyone who does not need to know.
- Reassure them that they are not alone and that support is available to them.
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:
- The adult lacks the mental capacity to make that decision – this must be properly explored and recorded in line with the Mental Capacity Act.
- Emergency or life-threatening situations may warrant the sharing of relevant information with the emergency services without consent.
- Other people are, or may be, at risk, including children.
- Sharing the information could prevent a serious crime.
- A serious crime has been committed.
- The risk is unreasonably high and meets the criteria for a MARAC referral.
- Staff are implicated.
- There is a court order or other legal authority for taking action without consent.
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:
- Support the adult to weigh up the risks and benefits of different options
- Ensure they are aware of the level of risk and possible outcomes
- Offer to arrange for them to have an advocate or peer supporter
- Offer support for them to build confidence and self-esteem if necessary
- Agree on and record the level of risk the adult is taking
- Record the reasons for not intervening or sharing information
- Regularly review the situation
- Try to build trust to enable the adult to better protect themselves.
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.
3.1.3 Mental Health Act 1983 ( amended 2007) and Mental Capacity Act 2005
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.
- The Mental Health Act is used to ensure that people who need treatment for serious mental disorder receive this treatment, even against their wishes, if there are sufficient risks to their own health or safety or risks to the safety of other people.
- The MCA Code of Practice makes it clear that all professionals should seek to use the MCA to make decisions if that is possible rather than using the MHA (Code of Practice Chapter 13 introduction.)