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.
- 3.1 Mental Capacity and Consent
- 3.2 Mental Capacity Assessment
- 3.3 Control and Coercion
- 3.4 Consent in Relation to Safeguarding
- 3.5 Reasons to Override Consent
- 3.6 Deprivation of Liberty Safeguards (DoLS)
- 3.7 Mental Health Act 1983 (amended 2007) and Mental Capacity Act 2005
- 3.8 Mental Capacity Act Section 44 Ill-Treatment or Neglect
- 3.9 Advocacy and Support
- 3.10 Advocacy
- 3.11 Support to Adults
- 3.12 Support for Vulnerable Witnesses in the Criminal Justice System Process
- 3.13 Managing Risk
- 3.14 Involving the Adult
- 3.15 Identifying Risk
- 3.16 Risk Assessment
- 3.17 Risk Management
- 3.18 Reviewing Risk
- 3.19 Risk Disputes
- 3.20 Recording Actions under Adult Safeguarding
- 3.21 Organisational Learning
- 3.22 Links with Other Reviews and Investigations
3.1 Mental Capacity and Consent
The Mental Capacity Act 2005 provides a statutory framework to empower and protect people who 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 lack mental capacity:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success;
- A person is not to be treated as unable to make a decision merely because he/she makes 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 his/her 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.
The requirement to apply the MCA in adult safeguarding enquiries challenges many professionals and requires utmost care, particularly where it appears an adult has capacity for making specific free and informed decisions that place them at risk of being abused or neglected, even if this decision is considered to be unwise.
3.2 Mental Capacity Assessment
The Mental Capacity 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. The adult may have the capacity to make some decisions, but not others.
Mental capacity is the ability to make decisions. The starting point must always be to assume that a person has the capacity to make a specific decision. Some people may need help to make a decision or communicate their decision. However this does not necessarily mean they cannot make that decision. Anyone who believes that a person lacks capacity should be able to prove their case using the two stage test of capacity.
3.3 Coercion and Control
If an adult is subject to coercion and control or undue influence by another person this may impair their judgement and could impact on their ability to make decisions about their safety. If this is the case, Mental Capacity Policy and Procedures may not cover the particular situation. Professionals from a range of disciplines will need to work with the person, to explore options that may be available to keep them safe. Supporting people who are subject to coercion is often complex and challenging work. If the situation cannot be resolved in other ways, you may need to seek legal advice regarding whether to apply to the High Court for inherent jurisdiction.
3.4 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 wellbeing of the adult.
The adult 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 person who is abusing them, 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.
3.5 Reasons to Override Consent
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 duty of care has to be considered;
- 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. In addition, if there are any other adults or children at risk seek advice from the Safeguarding Lead for your organisation.
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 abuse 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 increasing risk of harm to the individual within the relationship or risk of retribution from the abuser.
3.6 Deprivation of Liberty Safeguards (DoLS)
Please refer to appendix 4.
3.7 Mental Health Act 1983 (amended 2007) and Mental Capacity Act 2005
Where a person lacks capacity to consent and is currently detained and being treated under part 4 of the Mental Health Act 1983, nothing under Mental Capacity Act authorises anyone to:
- Give the person treatment for mental disorder; or
- Consent to the person being given treatment for mental disorder.
Further guidance can be found in Chapter 13 of the MCA code of practice around the relationship between the Mental Capacity Act and Mental Health Act and where the MCA applies.
3.8 Mental Capacity Act Section 44 Ill-Treatment or Neglect
The Mental Capacity Act 2005 (The Act) introduced two criminal offences:
- Ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions. These offences are known as Section 44 of the Act and applies to anyone caring for a person who lacks capacity – this includes;
- Family carers, healthcare and social care staff in hospital or care homes and those providing care in a person’s home;
- An attorney appointed under a Lasting Power of Attorney or an Enduring Power of Attorney; or
- A deputy appointed for the person by the court.
These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years – or both. Ill treatment and neglect are separate offences. For a person to be found guilty of ill treatment, they must either:
- Have deliberately ill-treated the person; or
- Be reckless in the way they were ill-treating the person or not.
It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health.
The meaning of ‘wilful neglect’ varies depending on the circumstances but it usually means that a person has deliberately failed to carry out an act they knew they had a duty to do.
For further guidance staff should read Chapter 14 of the MCA Code of Practice:
3.9 Advocacy and Support
Advocacy is an essential tool in ensuring the voice of the person is heard during any decisions which are made about them, including during a safeguarding enquiry or Safeguarding Adults Review (SAR).
IMCA support with Safeguarding is provided for anyone who lacks capacity to engage with or understand the Safeguarding process.
Care Act advocacy is provided to anyone involved in Safeguarding investigation under s42 and is assessed as having substantial difficulty in relation to the safeguarding process.
IMHA support is provided for S42 enquiries where the person is subject to detention under the MHA and already receiving support from an IMHA.
Non statutory advocacy is provided for those who do not meet s42 enquiry, or where there is an ongoing s42 enquiry and the person does not have substantial difficulty but does have an additional need or vulnerability.
If a person has been assessed as lacking capacity to make a decision, they are entitled to the support of an Independent Mental Capacity Advocate (IMCA). Under the Mental Capacity Act this is a legal right for all people aged over 16 in England, if they lack capacity and do not have an appropriate family member or friend to represent their views. An IMCA is only needed if the person cannot understand information relevant to a particular decision, retain it, weigh up the pros & cons and then communicate their decision.
An IMCA is independent of health and social care services and will represent the individual in discussions to work out whether the proposed decision is in their best interests, taking account of their current and previous wishes, beliefs and preferences.
An IMCA must be instructed, and then consulted, in relation to the following decisions:
- An NHS body is proposing to provide serious medical treatment;
- An NHS body or a local authority is proposing to arrange a change of accommodation to hospital or a care home, and:
- They will stay in hospital longer than 28 days; or
- They will stay in the care home for more than 8 weeks.
An IMCA may be instructed, and then consulted, in relation to the following decisions:
- Care reviews, where nobody else is available to be consulted;
- Adult protection (or ‘safeguarding’) cases, whether or not family, friends or others are involved.
The Care Act 2014 requires that a local authority must arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adults Review where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other appropriate individual to help them (Section 68).
A Care Act Advocate will support the individual to be involved in the assessment or review process, representing their rights, views, wishes and feelings by helping them to:
- Understand the assessment or review process;
- Participate in the process ensuring their rights are protected and their wishes, views and feelings are heard;
- Identify any alternative options;
- Promote the individual’s wellbeing;
- Prevent and delay the need for care and support;
- Take control of their life so that they can pursue opportunities to realise their potential;
- Ensure the assessment or review process follows the Care Act.
Care Act advocates cannot undertake advocacy services under the Mental Capacity Act 2005, however where there is an appointed IMCA they may also take on the role of Independent Advocate under the Care Act 2014.
The flowchart illustrates when to consider appointing an advocate.
It should be remembered that where the adult does not want support from family or friends that their wishes should be respected and an independent advocate offered and provided with their agreement. Your local authority Mental Capacity Act/DoLs Team will be able to provide details of your local advocacy service.
3.11 Support to Adults
A requirement under the Equality Act 2010 is for provision and reasonable adjustments to enable disabled people equal access to information and advice. Ensuring equality may reduce or remove substantial difficulty. Access to other services for example, translators should always be considered to ensure that the adults are afforded every opportunity to participate and be involved.
3.12 Support for Vulnerable Witnesses in the Criminal Justice Process
Research has found that sometimes evidence from victims and witnesses with learning disabilities is discounted. This may also be true of others such as people with dementia. It is crucial that reasonable adjustments are made and appropriate support given, so people can get equal access to justice.
Guidance should include reference to support relating to criminal justice matters which is available locally from such organisations as Victim Support and court preparation schemes. Some witnesses will need protection, and the Police may be able to get victim support in place.
Special Measures were introduced through legislation in the Youth Justice and Criminal Evidence Act 1999 (YJCEA) and include a range of measures to support witnesses to give their best evidence and to help reduce some of the anxiety when attending court. Measures in place include the use of screens around the witness box, the use of live-link or recorded evidence-in-chief and the use of an intermediary to help witnesses understand the questions they are being asked and to give their answers accurately.
The Advocate’s Gateway (TAG) provides free access to practical, evidence-based guidance on vulnerable witnesses and defendants.
Information on the website – Support for vulnerable intermediaries Advocates Gateway http://www.theadvocatesgateway.org/
3.13 Managing Risk
3.14 Involving the Adult
Making Safeguarding Personal (MSP) 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, in a communication format which is preferable to them, so that the adult can be supported to understand the information given to them and 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.
Making Safeguarding Personal (MSP) stresses the importance of keeping the adult at the centre of the safeguarding enquiry. Under MSP the adult is best placed to identify risks, provide details of its impact and whether or not they find the mitigation acceptable. Working with the adult to lead and manage the level of risk that they identify as acceptable creates a culture where:
- Adults feel more in control;
- Adults are empowered and have ownership of the risk;
- There is improved effectiveness and resilience in dealing with a situation;
- There are better relationships with professionals;
- Good information sharing to manage risk, involving all the key stakeholders (see Information Sharing part one);
- Key elements of the person’s quality of life and wellbeing can be safeguarded.
3.15 Identifying Risk
Not every situation or activity will entail a risk that needs to be assessed or managed. The risk may be minimal and no greater for the adult, than it would be for any other person.
- Risks can be real or potential;
- Risks can be positive or negative;
- Risks should take into account all aspects of an individual’s wellbeing and personal circumstances.
Sources of risk might fall into one of the four categories below:
- Private and family life: The source of risk might be someone like an intimate partner or a family member;
- Community based risks: This includes issues like ‘mate crime’, anti-social behaviour, and gang-related issues;
- Risks associated with service provision: This might be concerns about poor care which could be neglect or organisational abuse, or where a person in a position of trust because of the job they do financially or sexually exploits someone;
- Self-neglect: Where the source of risk is the person themselves.
3.16 Risk Assessment
Risk assessment involves collecting and sharing information through observation, communication and investigation. It is an on-going process that involves persistence and skill to assemble and manage relevant information in ways that are meaningful to all concerned. Risk assessment that includes the assessment of risks of abuse or neglect, and exploitation of people, should be integral in all assessment and planning processes, including assessments for self-directed support and the setting up of personal budget arrangements.
Assessment of risk is dynamic and on-going and a flexible approach to changing circumstances is needed. The primary aim of a safeguarding adults risk assessment is to assess current risks that people face and potential risks that they and other adults may face. Specific to safeguarding, risk assessments should encompass:
- The views and wishes of the adult;
- The person’s ability to protect themselves;
- Factors that contribute to the risk, for example, personal, environmental;
- The risk of future harm from the source;
- Identification of the person causing the harm and establishing if the person causing the harm is also someone who needs care and support;
- Deciding if domestic abuse is indicated and the need for a referral to a MARAC;
- Identify people causing harm who should be referred to MAPPA;
- It may increase risk where information is not shared.
3.17 Risk Management
The focus must be on the management of risks not just a description of risks. Employers need to take responsibility for the management of risk within their own organisation and share information responsibly where others may be at risk from the source. The local authority may be ultimately accountable for the quality of a s.42 enquiry, but all organisations are responsible for supporting holistic risk management with the adult, and in partnership with other agencies.
It is the collective responsibility of all organisations to share relevant information, make decisions and plan intervention with the adult. A plan to manage the identified risk and put in place safeguarding measures includes:
- What immediate action must be taken to safeguard the adult and/others;
- Who else needs to contribute and support decisions and actions;
- What the adult sees as proportionate and acceptable;
- What options there are to address risks;
- When action needs to be taken and by whom;
- What the strengths, resilience and resources of the adult are;
- What needs to be put in place to meet the on-going support needs of the adult;
- What the contingency arrangements are;
- How will the plan be monitored?
Positive risk management needs to be underpinned by widely shared and updated contingency planning for any anticipated adverse eventualities. This includes warning signs that indicate risks are increasing and the point at which they become unacceptable and therefore trigger a review.
Effective risk management requires exploration with the adult using a person- centred approach, asking the right questions to build up a full picture. Not all risks will be immediately apparent; therefore risk assessments need to be regularly reviewed as part of the safeguarding response.
3.18 Reviewing Risk
Individual need will determine how frequently risk assessments are reviewed and wherever possible there should be multi-agency input. These should always be in consultation with the adult.
3.19 Risk Disputes
Throughout this policy and procedures risk assessment and risk management is carried out in partnership with the adult, wider support network and others. The decision to involve others or not is in itself a decision which may give rise to risk, and the individual may need support to make this decision.
The professional views of risk may differ from the views of the adult. Perceived risks have implications for the safety and the independence of the individual, but they also have implications for the accountability of professionals.
Professionals need to embrace and support positive risk taking by finding out why the person wishes to make a particular choice, what this will bring to their life, and how their life may be adversely affected if they are not supported in their choice. The promotion of choice and control, of more creative and positive risk-taking, implies greater responsibility on the part of the adult and greater emphasis on keeping them at the centre of decision making.
It may not be possible to reach agreement, but professionals need to evidence that all attempts to reach agreement were taken. Where there are concerns about people making unwise decisions, the decision making process must be fully recorded.
3.20 Recording Actions under Adult Safeguarding
A record of all actions and decisions must be made. Good record keeping is a vital component of professional practice.
Records may be disclosed in courts in criminal or civil actions. All organisations should audit safeguarding concerns and outcomes as part of their Quality Assurance.
Supervisors should ensure that recording is addressed in supervision and that staff are clear on their responsibilities.
SAB’s should regularly review the quality of recording, as part of its performance and quality data scrutiny.
Learning lessons from past mistakes and missed opportunities highlighted in Safeguarding Adult Reviews (SAR’s) , Serious Case Reviews (SCR’s) and other reports emphasise the need for quality recording especially when managing abuse, neglect and risk. This includes providing a rationale for all actions and decisions, whether or not they were taken, and if not the rationale clearly recorded.
Quality recording of adult safeguarding not only safeguards adults, but also protects workers by evidencing decision making based on the information available at the time. For more information see the University of the West of England advice on the importance of keeping records.
3.21 Organisational Learning
It is essential that all aspects of safeguarding practice are monitored and scrutinised on a regular basis. All staff have a responsibility to audit their work and a set of local outcome focused standards might support staff.
All agencies need to take responsibility for organisational learning and implement changes to their practice as a result of audits, complaints, SARs, and most importantly feedback from adults at risk about what works well and what needs to improve. Opportunities should be provided for learning from themes and patterns of practice that can add value to learning from good practice, and pinpointing necessary changes.
In addition to practice guidance highlighted throughout this policy and procedures, staff may find the following information from SCIE helpful on adult safeguarding questions.
Section 44, the Care Act 2014 stipulates that SAB’s must arrange a SAR when an adult in its area with care and support needs dies as a result of abuse or neglect, whether known or suspected, and there is concern that partner agencies could have worked more effectively to protect the adult. SABs must also arrange a SAR if the adult with care and support needs in their area did not die but the SAB knows or suspects that the adult has experienced serious abuse or neglect.
In the context of a SAR something can be considered serious abuse or neglect where, for example the adult was likely to have died but for an intervention, or suffered permanent harm or had reduced capacity or quality of life (whether because of physical or psychological effects) as a result of the abuse or neglect.
There is an expectation that individuals, agencies, organisations, cooperate with the review but the Act also gives SAB’s the power to require information from relevant parties.
SAB’s will produce their own local SAR procedures.
Any SAR may need to take account of a Coroner‘s inquiry, including disclosure issues, to ensure that relevant information can be shared without incurring significant delay. Coroners are likely to delay any Inquest pending a SAR completion, so the report and potential witnesses can be included in the Inquest process.
Whatever arrangements are in place, where there is agreement for a SAR, a SAR Chair should be identified to co-ordinate arrangements. This would include key colleagues in the Police.
Refer to your local SAB website for information on SAR policies.
3.22 Links with Other Reviews and Investigations
For victims of domestic homicide reviews, there is separate statutory guidance in respect of children, which provides for a
Serious Case Review (SCR)
and in respect of persons aged 16 or over, which provides for a
These two sets of statutory guidance overlap where the victims are aged between 16 and 18.
When commissioning a SAR there should be consideration given to how child SCR’s and DHR’s can be managed in parallel in the most effective way, so that organisations/professionals can learn from the case. Different types of review will have their own specific areas of investigation and these should be respected, where intelligence can be shared across the reviews there should be no organisational barriers to information sharing. Consideration should be given to jointly commissioning some aspects of the review which would reduce duplication and thereby the time and cost involved.
All statutory agencies leading investigations following a death need to be aware of potential parallel inquiries, investigations and processes which may have been instigated as a result of the death