- 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.