RELEVANT CHAPTER

Mental Capacity

July 2018: This chapter has been updated as a result of local review. Section 6, Consent and Mental Capacity, Section 7, Consent to Information Sharing and Section 8, Consent to Treatment are all new.

1. Introduction

The Care and Support Statutory Guidance advises that the first priority in safeguarding should always be to ensure the safety and wellbeing 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.

2. Giving Consent

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.

3. Overriding Refusal to give 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 person is unable to understand relevant information; retain the information; make a decision based on the information given;
  • unable to communicate a choice on the matter because he / she is unconscious;
  • 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 multi-agency risk assessment conference referral (see Multi-Agency Risk Assessment Conference chapter);
  • 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 organisation’s 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.  This is particularly important in light of the new legal right patients now have to know why their health information is being shared without their consent.

4. Supporting the Adult

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.

5. Considering Risk

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.

6. Consent and Mental Capacity

Correctly applying the Mental Capacity Act 2005 (MCA) is pivotal in safeguarding work when an adult lacks mental capacity. Good practice maximises an adult’s ability to understand and participate in the decision making process. If the adult is assessed as lacking mental capacity, best interest decisions should be made on their behalf (see Best Interests).

All adults must be helped and supported to make a decision independently before a mental capacity assessment is conducted. This includes gaining consent in relation to undertaking safeguarding enquiries. If an adult is deemed as lacking mental capacity, they may still be able to participate in making decisions. Some decisions are excluded decisions under the MCA, that is they cannot be made on the person’s behalf (see Section 3, Excluded Decisions, Mental Capacity).

The following points may need to be considered in these discussions. It aims to help practitioners to structure their thoughts and make judgements to help them produce well informed, person centred assessments, conclusions and best interest decisions. It is not a prescriptive or exhaustive list and each case will present its own unique opportunities and challenges.

The range and type of decisions that an adult, or their advocate, needs to make in safeguarding cases include:

  • consent to starting the process;
  • consent to sharing information;
  • consent to safeguarding enquiries proceeding;
  • consent to protective measures being discussed and planned.

These decisions regarding consent involve the adult demonstrating an understanding of:

  • what harm has occurred;
  • the risks and consequences of the harm;
  • specific protective measures and what they entail.

This may involve conversations with adults which are of a sensitive, personal and often difficult nature. The guidance below provides points that may need to be considered in these discussions. It aims to help practitioners to structure their thoughts and make judgements which help them produce well-informed, person centred assessment conclusions and best interest decisions. It is not a prescriptive or exhaustive list and each case will present its own unique opportunities and challenges.

Practitioners must be aware that consent may not be needed when it:

  • will increase the risk of harm to the person or others;
  • threatens the person’s or others safety (for example serious injury, risk to life);
  • threatens the public interest (for example where people who work with adults with care and support needs or children are implicated in wrongdoing).

7. Consent to Information Sharing

See also South Tyneside Information Sharing Protocol

There will be times when an adult who has mental capacity decides to accept a situation considered as harmful or neglectful. Where this is the situation and they do not want any action to be taken, this does not preclude the sharing of information with relevant professional colleagues. This is to enable professionals to assess the risk of harm and be confident that the adult is not being unduly influenced, coerced or intimidated and is aware of all the options. This will also enable professionals to check the safety and validity of decisions made. Practitioners should seek consent of the adult to share the information, unless doing so would increase the risk of harm. Whilst a capacitated adult is free to make an unwise or bad decision, the local authority and / or the police can take steps to protect them if they are at risk of abuse if they are being unduly influenced, coerced or intimidated.

Information can be shared with other professionals, without the adult’s consent, if the following apply:

  • other people are being put at risk (for example, letting friends who are abusive or exploitative into a shared living environment, where they may put other residents at risk);
  • a child is involved;
  • the alleged person causing harm has care and support needs and may also be at risk;
  • a crime has been committed;
  • staff are implicated.

8. Consent to Treatment

See also Reference Guide to Consent for Examination or Treatment (Department of Health and Social Care)

It is a general legal and ethical principle that valid consent must be obtained before starting treatment, physical investigation or providing personal care for an adult. This principle reflects their right to determine what happens to their own bodies, and is a fundamental part of good practice.

A healthcare professional (or other staff) who does not respect this principle may be liable both to legal action by the adult and to action by their professional body. Employing bodies may also be liable for the actions of their staff.

Whilst there is no English statute setting out the general principles of consent, case law (known also as ‘common law’) has established that touching a patient without valid consent may constitute the civil or criminal offence of battery. Further, if healthcare professionals (or other staff) fail to obtain proper consent and the patient subsequently suffers harm as a result of treatment, this may be a factor in a claim of negligence against the healthcare professional involved.

Poor handling of the consent process may also result in complaints from patients through the NHS complaints procedure or to professional bodies.

Where a person lacks the capacity to make a decision for themselves, any decision must be made in that person’s best interests (see Best Interests). Certain serious medical treatment cases such as withdrawing artificial hydration or nutrition, or the non-therapeutic sterilisation of a person who lacks capacity for contraceptive purposes must be referred to the Court of Protection.

The MCA introduced a duty on NHS bodies to instruct an independent mental capacity advocate (IMCA) in relation to decisions regarding serious medical treatment, when an adult lacks the capacity to make a decision has no one who can speak for them, other than paid staff.

The MCA allows people to plan ahead for a time when they may not have the capacity to make their own decisions: it allows them to appoint a personal welfare attorney to make health and social care decisions, including medical treatment, on their behalf or to make an advance decision to refuse medical treatment.