Topic outline

  • 1. Introduction

    The Mental Capacity Act 2005 (MCA 2005) provides a statutory framework to empower and protect Adults at Risk who are not able to make their own decisions. It does this is by putting Adults at Risk at the heart of the decision-making process. It makes clear who can make decisions, in which situations and how they should go about this.


    Mental Capacity describes a person's ability to make a specific decision at a specific time. An individual is deemed to lack capacity if, because of an impairment of or a disturbance in the functioning of the mind or brain, they cannot make a specific decision at the time the decision needs to be made. It does not matter if the impairment or disturbance is temporary or permanent.

    • 2. The Principles of the Act

      The following five principles apply for the purposes of this Act

      • A person must be presumed 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 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 the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests (best interests are described below);
      • 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.

      Remember that the Mental Capacity Act 2005 aims to enable and empower individuals, and to protect.

      The five principles of the Act are the starting point. They should inform all actions when working with a person who may lack or have reduced capacity. The five principles should be evidenced in taking any decisions for a person who you consider may lack Capacity.

      What does the Act Do?

      The Act enshrines in statute current best practice and common law principles concerning adults who lack capacity and those who make decisions on their behalf.

      The Act deals with the assessment of a person's capacity and acts carried out by others on behalf of those who lack capacity:

      • Assessing lack of capacity: the Act introduces a Legal Test to assess a lack of Capacity which comprises a Diagnostic Test and a Functional Test. A capacity test includes a written report detailing the assessor’s reasons for deciding that the individual lacks capacity. The capacity assessment is ‘situation and time specific’ and must be done each time an important decision about the person’s life needs to be made, i.e. a person cannot be said to ‘lack capacity’ as a blanket term – they may for example have the mental capacity to be able to make a decision about where they want to live or who they want to have contact with, but not have capacity to manage their financial affairs, and this capacity status may change over time if the individual has fluctuating levels of mental capacity due to the effects of a physical or mental health condition. The assessor will be a professional with the requisite skills, competence and experience to undertake such an assessment, and if the capacity assessment was to be used to advise decisions in a legal context, must be someone that the courts would accept as a suitable assessor.
      • Best Interests - Everything that is done for or on behalf of a person who lacks capacity must be in that person's best interests. The Act provides a checklist of factors that decision makers must consider when determining what is in a person's best interests:

      Checklist:

      1. Encourage the person to take part as much as possible

      2. Identify all relevant circumstances

      3. Find out the person's past and present wishes, feelings, beliefs, values and any other factors they would be likely to consider if they had capacity, including any advanced statements

      4. Do not make assumptions based on the person's age, appearance, condition or behaviour

      5. Assess whether the person might regain capacity

      6. If the decision concerns life-sustaining treatment then the best interest decision should not be motivated by the desire to bring about the person's death

      7. Consult with others where it is practical and appropriate to do so.  This includes anyone previously named as someone to be consulted; anyone engaged in caring for the person; close friends, relatives or others with an interest in the person's welfare, any attorney and any Deputy appointed by the Court.

      8. Avoid restricting the person's rights by using the least restrictive option

      9. Abide by any valid advanced decision


      • Acts in connection with care or treatment - Section 5 provides protection from liability when carrying out care or treatment as long as the person delivering the care has taken reasonable steps to establish that the person lacks capacity and when doing the act they reasonably believe that it is in the person's best interests.

      The Act includes formal designated decision makers who can act on behalf of someone who lacks Capacity

      • Lasting Powers of Attorney (LPA's) - allows a person with capacity to appoint an attorney to act on their behalf if they should lose capacity in the future. There are two types of LPAs: for property and affairs and for health and welfare decisions.  Attorneys can only make decisions as detailed within the LPA. 
      • Court appointed deputies - depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one-off decision to resolve the issues.

      The Act created two new public bodies to support the statutory framework:

      • The Court of Protection - has jurisdiction relating to the whole Act, with its own procedures and nominated judges;
      • A Public Guardian, supported by the Office of the Public Guardian (OPG). The office of the Public Guardian is the registering authority for LPA's and deputies. It supervises deputies appointed by the Court and provides information to help the Court make decisions. It will also work with other agencies, such as the Police and Social Services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board scrutinises and reviews the way in which the Office of the Public Guardian discharges its functions.

      The Act also includes three further key provisions to protect people who lack mental capacity:

      • Independent Mental Capacity Advocates (IMCA) - An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. They have to be involved where decisions are being made about serious medical treatment or a change in the person's accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA makes representations about the person's wishes, feelings, beliefs and values, and brings to the attention of the decision-maker all relevant factors to the case. IMCA services are provided by organisations that are independent of the NHS and local authorities;
      • Advance decisions to refuse treatment - there are statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future;
      • Criminal offence - The MCA introduced two new criminal offences of ill treatment or wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

      Further information can be found on the Office of the Public Guardian website.

      • 3. Introduction and Principles of Deprivation of Liberty Safeguards

        This amendment to the Mental Capacity Act 2005 (introduced by the Mental Health Act 2007) is to provide for procedures to authorise the deprivation of liberty of a person in a hospital or care home who lacks capacity to consent to being there. These are known as the MCA Deprivation of Liberty Safeguards (MCA DoLS). The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures.

        The MCA DoLS cover:

        • How an application for authorisation should be applied for;
        • How an application for authorisation should be assessed;
        • The requirements that must be fulfilled for an authorisation to be given;
        • How an authorisation should be reviewed;
        • What support and representation must be provided for people who are subject to an authorisation; and
        • How people can challenge authorisations.

        Their purpose is to secure independent professional assessment of:

        1. Whether the person concerned lacks the capacity to make his/her own decision about whether to be accommodated in the hospital or care home for care or treatment; and
        2. Whether it is in his/her best interests to be detained.

        An assessment must be made as to whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised (either by the Deprivation of Liberty Safeguards (hospitals/care homes) or by the Court of Protection (domestic settings such as supported living arrangements), and subject to regular independent checks.

        Where the MCA DoL might be for the purpose of giving care or treatment, the DoL authorisation does not itself authorise treatment. Treatment in these circumstances may only be given with the person's consent (if they have capacity) or in accordance with the wider provisions of the MCA.  All deprivations of liberty must be in the person's best interests with no less restrictive options.

        The safeguards provide for independent assessment and rights to the person of review and appeal to the courts.


        • 3.1 Identifying Deprivation of Liberty

          There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.

          Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act, 2005) can be lawfully carried out in someone’s best interest to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice. Neither the Mental Capacity Act nor DoLS can be used to justify the use of restraint for the protection of members of staff or other service users or patients.

          The difference between restriction of movement and deprivation of liberty is based on degree and intensity.


          • 3.1.1 Test for Deprivation of Liberty

            The Supreme Court has clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights where the person:

            • Is under continuous supervision and control; and
            • Is not free to leave; and
            • Lacks Capacity to consent to these arrangements.

            The Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include: the person’s compliance or lack of objection; the reason or purpose behind a particular placement; and the extent to which it enables them to live a relatively normal life for someone with their level of disability.

            This test is far broader than those set by previous judgements - disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people.

            The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. These must be authorised by the Court of Protection.


            • 3.1.2 Authorising a Deprivation of Liberty

              The DoLS process for obtaining a standard authorisation or urgent authorisation can be used where individuals lacking Capacity are deprived of their liberty in a hospital or care home.

              The Court of Protection can also make an order authorising a deprivation of liberty; this is the only route available for authorising deprivation of liberty in domestic settings such as supported living arrangements. This route is also available for complex cases in hospital and / or care home settings.

              Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under that Act are met.


              • 3.2 Care Homes and Hospital Settings

                Care homes and hospital wards have responsibilities under DoLS to ensure that none of their residents / patients are unlawfully deprived of their liberty, without the appropriate authorisation, and that all authorisations are notified to the Care Quality Commission and monitored.

                • 3.2.1 Local Authority Role

                  DoLS authorisations will be issued, where appropriate, following statutory assessments by the Mental Health Assessor and Best Interests Assessor. Local authorities have responsibilities under the safeguards to:

                  • Carry out the functions of the Supervisory Body as detailed in the DoLS Code of Practice;
                  • Receive requests for authorisations from care homes and hospitals;
                  • Commission statutory assessments, and grant Deprivation of Liberty authorisations where appropriate.

                  The Safeguards also apply to privately arranged care, i.e. self-funded residential care.

                  Local authorities have a responsibility to protect the human rights of all vulnerable people, particularly in reference to these safeguards, those who may be at risk of deprivation of liberty.

                  The Department of Health advice note (2015) stated that relevant staff in local authorities and care providers should ‘take steps to review existing care and treatment plans for individuals lacking Capacity to determine if there is a ‘Deprivation of Liberty’ in the light of the Supreme Court ruling. Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised.


                  • 3.2.2 Care Home and Hospital Roles

                    It is the responsibility of the care home manager or hospital to recognise that the care required may amount to a deprivation of liberty. If so, they must apply for an authorisation or reduce the restrictions so that deprivation of liberty is avoided.

                    DoLS authorisations will only be granted if:

                    • It is in a person’s own best interests to protect them from harm;
                    • It is a proportionate response to the likelihood and seriousness of the harm; AND
                    • There is no less restrictive alternative.

                    • 3.3 How to avoid unlawful deprivation of liberty

                      Hospitals and care homes are required to recognise when the use of the Mental Health Act amended 2007, section 5 of the Mental Capacity Act 2005 or Deprivation of Liberty Safeguards 2009 is most appropriate.

                      Unlawful deprivation of liberty is unacceptable. If an organisation breaches this basic human right, the risks to the organisation could include: a court declaration that the organisation has acted unlawfully and breached the Adult at Risk's human rights, a claim for compensation, negative press attention and regulatory action from commissioners and regulators.


                      • 3.4 Requesting an Authorisation

                        Care homes and hospital wards should request an authorisation when appropriate using the standard forms. This can be done up to 28 days in advance of when they plan to deprive the person of their liberty.

                        Where a DoL is unforeseen, they may also grant themselves an Urgent Authorisation for up to 7 days, but must notify the DoLS office and apply for a standard authorisation at the same time.

                        See Chapter 6, DoLS Code of Practice.


                        • 3.5 DOLS Assessment Process

                          Before a local authority can grant an authorisation, at least two separate assessors must carry out the following:

                          1. Mental health assessment - to confirm whether the person has an impairment / disturbance in the mind or brain;
                          2. Eligibility assessment - to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
                          3. Mental capacity assessment - carried out by either the Mental Health or Best Interest Assessor to determine the person’s capacity to consent to the care proposed;
                          4. Best interest assessment - to confirm whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interest. They will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
                          5. Age assessment - to confirm the person is at least 18 years of age;
                          6. No Refusals assessment - to confirm whether there is any valid advanced decision which would conflict with the authorisation or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

                          An IMCA (Independent Mental Capacity Advocate) may also be appointed during the assessment process if required.

                          If any of the qualifying requirements are not met, the authorisation cannot be granted.

                          An authorisation can be granted for a maximum of 12 months, but will usually be agreed for a shorter time period as appropriate for the individual concerned.

                          • 3.6 Role of the Relevant Person’s Representative

                            See Mental Capacity Deprivation of Liberty Safeguards - Supplementary Code of Practice IMCA.

                            Everyone who is subject to an authorisation will be appointed a representative.

                            They must maintain face to face contact with the person and represent and support them in all matters relating to the Deprivation of Liberty safeguards, including, if appropriate, requesting a review, or applying to the Court of Protection to present a challenge.

                            The representative has the right to request the advice and support of an IMCA.

                            If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative.

                            The name of the person’s representative should be recorded in the person’s health and social care records.


                            • 3.7 Reviews

                              It is the responsibility of the care home or hospital ward to monitor and review the person’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions.

                              The care home or hospital must request a DoLS review if:

                              • The relevant person no longer meets any qualifying requirements;
                              • The reasons the person meets the qualifying requirements have changed;
                              • Because of a change in the person’s situation, it would be appropriate to add, amend or delete a condition placed on the authorisation.

                              The person or their representative may also request a DoLS review at any time.

                              The DoLS Service will commission assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews will not replace health or social care reviews.


                              • 3.8 Alerting unlawful Deprivation of Liberty

                                If a person (professional or otherwise) suspects unauthorised deprivation of liberty, they should discuss it with the care home manager / hospital ward manager.

                                If the care home/hospital agrees that the Care Plan involves deprivation of liberty, they should be encouraged to make a request for authorisation.

                                All parties should be satisfied that the Care Plan is the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

                                If the care home does not agree to make a request for a DoLS authorisation, the care manager / coordinator or the individual or their family or other interested party can then approach the DoLS office to discuss the situation and report the unlawful deprivation.


                                • 3.9 DoLS and Safeguarding Concern Alerts

                                  Deprivation of liberty can be in a person’s best interest if it is necessary to protect the person from harm, and is proportionate to the risk of harm. To be lawful, it needs to be authorised so that the person has access to the safeguards and is appropriately represented throughout the authorisation.

                                  A Safeguarding Concern being raised may be appropriate if there is also an allegation or concern of abuse, harm or neglect. If so, Chapter 3, Managing Individual Cases – Procedures Relating to All Cases - should be followed.


                                  • 3.10 Working with DoLS Best Interest Assessors

                                    Best Interests Assessors and the DoLS Service will not, at any point, have responsibility for care planning or care management / coordination.

                                    The DoLS Code of Practice points out that there is a particular need for care management / coordination if a Best Interest Assessor finds a service user / patient is being deprived of their liberty under their current Care Plan, but that Care Plan is not seen to be in their best interest and the deprivation is not authorised. The care home / hospital ward needs to work with the care manager immediately to reduce restraint/restriction and ensure the person is not unlawfully deprived of their liberty.

                                    The Best Interest Assessor’s report will explain their conclusion and aim to make useful suggestions to commissioners and providers in determining future action including recommending alternative approaches to treatment or care which would avoid deprivation of liberty. The Best Interest Assessor or another appropriate professional will discuss the possibility of any suggested alternatives with the providers of care during the DoLS assessment. This report should be kept on the person’s file.

                                    The recommendations of the Best Interest Assessor should not be seen as a commitment or agreement to additional resources being provided by the commissioning agency. Any additional resources which are required should be requested by the care provider and presented to the relevant funding panel according to existing arrangements and procedures.

                                    The care home/hospital need to record the steps they have taken to ensure the unauthorised deprivation of liberty does not continue. The Best Interest Assessor’s report should then be added to the person's file / Care Plan.

                                    The care manager will be asked to complete a review of the person’s needs and work with the managing authority to propose an alternate Care Plan. If the Care Plan has funding implications, the care manager will present an application to the relevant funding panel or responsible commissioner, prior to a decision being made.

                                    After an appropriate interval (no longer than one month) the DoLS Office may arrange for a professional who has been trained to undertake best interest assessments to complete an independent review of the person’s Care Plan on behalf of the local authority, to confirm that there is no longer a deprivation of liberty. If deprivation of liberty has continued unauthorised, the DoLS Office will consider whether to raise a Safeguarding Alert.

                                    If this is in the case of a proposed admission to residential care, that admission will need to be delayed until an alternative Care Plan is proposed that will not involve deprivation of liberty.

                                    If the person is to be discharged from hospital, and considerations about potential deprivation of liberty are causing or contributing to delay in discharge planning, this should be discussed with the DoLS Office at the earliest opportunity. A placement from hospital into an appropriate care setting that is agreed to be in the persons best interests should not be unduly delayed by the DoLS process.

                                    • 3.11 Domestic Settings

                                      The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is - or is likely to be - a deprivation of liberty in such placements, it must be authorised by the Court of Protection.

                                      For full information, including the Code of Practice, guidance and forms, see the Ministry of Justice website.


                                      • 4. General Principles in Terms of Capacity and Safeguarding Adults

                                        • Issues of capacity and consent are central both in deciding whether an act or transaction was abusive and in deciding to what extent the adult can and should be asked to take decisions about how best to deal with the situation;
                                        • During the Safeguarding Adults process, it is essential that you are certain the individual understands the nature of the concerns and the choices available to them. All practicable steps must be taken to help a person make a decision, by providing them with the necessary information in the most accessible means and by the facilitation of the communicating of that decision if such support is necessary (for example translation services; access to a Makaton specialist);
                                        • Individuals should be enabled to make as many decisions for themselves as possible, or to participate as far as they can in decision-making. Under the Mental Capacity Act 2005, they may be supported by an Independent Mental Capacity Advocate (IMCA) which the Local Authority has the duty to provide in Safeguarding Adults cases, if they meet the criteria. The IMCA's role is to support the person lacking capacity in the decision making process although they are not decision makers themselves under the Act, (see Section 2: Practice Guidance; Policy Statement: Criteria for the use of IMCAs in Safeguarding Adults Cases);
                                        • Capacity should be assessed in relation to the specific activity or issue that is being considered which means that those supporting the individual have a duty to present information to them in a manner which they are likely to understand and in a time frame which will facilitate their involvement. For example, if an individual currently lacks capacity because they are acutely ill, but there is a likelihood that they will regain capacity in the near future; then the decision should be delayed (if possible) until that time;
                                        • It should not be assumed that a capacity or lack of capacity in respect to one area equates directly to another situation; for example, an ability to consent to medical treatment may not mean that an adult is able to give their consent to sexual activity. Equally someone may not have capacity to make decisions of a large and complex nature but can make decisions on related aspects. For example, they may not have capacity to manage a monthly pension payment but can manage a weekly allowance;
                                        • Capacity may fluctuate, improve or deteriorate. Someone with mental health problems, for example, may be functioning well on medication and able to make decisions, but if they forget to take their medication and as a consequence their mental health declines, so might their ability to make decisions. It may also be possible to develop a person's capacity to make decisions in some aspects of their life. This is fundamental to a lot of work with people with learning disabilities as new experiences and challenges are designed by workers to expand an individual's capacity;
                                        • Capacity does not assume wise and prudent decisions are made by the individual. In Safeguarding Adults we are sometimes faced with the possibility that someone is colluding in their abuse because they can see no other alternative or do not regard their experiences as abusive. How informed they are in their making of what may appear to be an unwise decision needs to be monitored and recorded by workers.

                                        The Mental Capacity Act 2005 does not cover decisions in relation to:

                                        • Consent to marriage or civil partnerships;
                                        • Consent to sexual relations;
                                        • Consent to divorce or dissolution of marriage or civil partnership;
                                        • Consent to a child being placed for adoption or consent to making an adoption order;
                                        • Discharge of parental responsibilities in areas not connected to a child's property;
                                        • Consent under the Human Fertilisation and Embryology Act 1990.

                                        Some capacity issues may require consideration of other legal frameworks e.g. to sell a house, make a will and sexual relationships. If an individual is unable to give consent to some acts or decisions, it may mean that a criminal offence has taken place e.g. sexual relationships or financial transactions.

                                        If in doubt, especially if the decision to be made has significant consequences, seek legal advice.

                                        An assessment in respect of capacity should:

                                        • Take into consideration the legal test of capacity as outlined in Section 3 of the Mental Capacity Act 2005;
                                        • Bear in mind the timing of the decision so that, if possible, it can be delayed until a time when the incapacitated person regains capacity. This is especially relevant if caring for those who are acutely ill or who misuse substances which affect their ability to make decisions;
                                        • Be undertaken by a professional with expertise relevant to the abused person's situation. This could mean a carer under section 5 of the Mental Capacity Act 2005, a Care Manager or a Nurse, for example. There may also be a Lasting Power of Attorney representing the incapacitated individual who can give 'substitute consent' in matters of health and welfare and who needs to be consulted or an Independent Mental Capacity Advocate (IMCA) who would represent the person;
                                        • Be fully recorded in the case file. Such assessments could be undertaken outside of, or pursuant to, court proceedings. Most decisions about an individual's capacity and best interests can usually be decided without going to the Court of Protection and thereafter pursuing matters through that hierarchy of expertise.

                                        What this means in practice

                                        The legal test of capacity as defined in Section 2 of the Act and outlined above needs to be applied in practice. There are however, other considerations with regard to Safeguarding Adults that need to be borne in mind:

                                        • Has the individual been pressurised or coerced into consenting within an unequal relationship characterised by intimidation, threat, force or exploitation?
                                        • Physical force or the threat of violence or reprisals also invalidates any consent;
                                        • Has everyone who could have a say in the decision been consulted: This could include:
                                          • Anyone named by the person when they had capacity as someone to be consulted;
                                          • Any carer involved with the person (and this may include the alleged abuser. This is not a duty but it is something that may have to be considered as recommended under paragraph 4.44. of the Code of Practice);
                                          • Any attorney appointed by the person under a Lasting Power of Attorney;
                                          • Any deputy appointed by the Court of Protection.

                                        Situations where the individual does have capacity

                                        If it is decided that the individual does have capacity, has taken an informed decision and by that action is placing him or herself at risk, staff should consult with:

                                        • The individual themselves;
                                        • Their carer, if appropriate - with the person's consent;
                                        • Their community supports;
                                        • Any other relevant agency, service or individual.

                                        The Mental Capacity Act 2005 clearly states in its principles (Section 1) that an unwise decision does not equate to an incapacitated decision. This means that providers of services need to record fully and accurately, the decision making processes and the wishes of the individual thus evidencing that this is the person's own, capacitated wish.

                                        The purpose of this is to ensure that staff make every effort to assist the individual in understanding the risk that they are taking and the choices available to them to remove or reduce the risk.

                                        There may be situations where the individual seems able in terms of their knowledge and understanding to make their own decisions; however, they may be subject to undue pressure to support a particular course of action. This could be pressure from or fear of a professional or family member. The involvement of an Independent Mental Capacity Advocate (IMCA) in accordance with the local policy may help in this matter as their role is to represent the individual and be impartial (See Section 2: Practice Guidance; Protocols and Procedures for further information on the use of IMCA's in Safeguarding Adults cases).

                                        Staff will need to determine whether the individual is making the decision of their own free will or whether they are being subjected to coercion or intimidation.

                                        If it is believed that the individual is exposed to intimidation or coercion, efforts should be made to offer the person 'distance' from the situation in order to facilitate decision making

                                        A Safeguarding Plan can be drawn up with the individual, but cannot be imposed upon them should they choose not to cooperate. The wishes of the person, if this is the case, should be fully recorded.

                                        It is important to note that there may be situations where a capable adult's decision to live with risk places other adults or children at risk of harm.

                                        In these situations there is a duty of care for safeguarding agencies to intervene and override the individuals expressed wishes.

                                        Situations where the individual does NOT have capacity

                                        If it is decided that the individual does not have capacity then staff should act in the best interests of the individual.

                                        In cases where the Safeguarding Manager feels that the individual is unable to give informed consent, a Safeguarding Adults Strategy Discussion / Meeting should be called in order to undertake or commission a multi-disciplinary assessment. If they meet the criteria, there will be a duty to instruct an Independent Mental Capacity Advocate to support and speak for the person lacking capacity.

                                        Good practice dictates that in order to determine best interests staff may need to consult with those that know the individual well, and concerned with his/her welfare, in addition to an appropriate range of professionals relevant to the decision being made e.g. medical treatment requires that the medical practitioner is satisfied that the person has capacity to consent. As mentioned earlier, this may also include the alleged abuser but this is only when and if appropriate to do so.

                                        The extent of such a consultation needs to be proportionate to the significance of the decision for the individual.

                                        When an individual is unable to make a decision about a serious and significant matter, and there is a dispute or dilemma about what is in their best interests e.g. where a person should live, contact with a suspected abuser, withdrawal of medical treatment, it may be appropriate to apply to the Court of Protection for Court Orders and Declarations to be made under the Mental Capacity Act 2005.

                                        The Mental Capacity Act section 5 can be used to transport someone who lacks capacity to a care home or hospital if it is in the best interests of the person and the least restrictive option for care and treatment, but not to just distance them from an abuser.

                                        This legislation involves what may be regarded as sanctions against the abused person NOT the alleged perpetrator.

                                        You should seek advice from your own agency's legal advisor with regard to referral to the Court of Protection in relation to compulsory removal, as appropriate, prior to any action being taken.