Perhaps the most difficult issue in adult social care, the one that puts the greatest test on social workers’ professional judgement, is that of choice versus control, risk versus safety. Adults should be able to make decisions for themselves, do the things that they want to, decide the direction they want their life to take.
This should be the case regardless of whether or not the person is supported by social services. One of the five main principles of the Mental Capacity Act 2005 is that an individual has the right to make an unwise decision – this doesn’t mean that they lack mental capacity to make decisions. I recently stayed up until 1am reading the latest Philip Pullman book. This felt like a not very wise thing to have done when my alarm went off at 6:30. But it doesn’t mean that I need someone else to make my decisions for me.
The issue comes when there is a concern over someone’s safety. For instance, self-neglect is a notoriously difficult area of practice, for this reason. If a person has capacity, and seems to be choosing to live in a situation where their personal safety is at risk, can and should social workers intervene? Where does the right to choose stop and the duty of care start?
In a piece for Community Care Inform Adults, academic Di Galpin looks at professional judgement and decision-making in safeguarding. The in-depth guide covers the essential characteristics of professional judgement, approaches to decision making and avoiding bias and errors. In this excerpt from the guide, Galpin discusses safeguarding, risk and mental capacity. Inform Adults subscribers can read the full guide and access the safeguarding knowledge and practice hub.
The consideration of mental capacity is crucial at all stages of safeguarding adults procedures as it provides a framework for decision making to balance independence and protection. For example, this could mean determining the ability of a vulnerable adult to make lifestyle choices, such as choosing to remain in a situation where they risk abuse; determining whether a particular act or transaction is abusive, or consensual; or determining how much a vulnerable adult can be involved in making decisions in a given situation.
Legislation underpinning practice in this area is guided by the application of the Mental Capacity Act 2005, which provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions.
However, an increasingly key area in adult safeguarding involves working with those adults who do have mental capacity to make relevant decisions. It is important to ensure that they are not excluded from adult safeguarding. Capacity should not be viewed as a barrier to safeguarding. However, caution must be exercised not to contravene an individual’s wishes, feelings and rights.
The Mental Capacity Act 2005 has its own test for mental capacity, which acts as a condition for the operation of that act. But an individual’s mental processes can be affected by factors not recognised by the 2005 act test. What is the fate of people like this? Does the fact that the 2005 act cannot help them render them unprotected from exploitation? The answer is ‘no’. They are not abandoned by the law. In 2012, the Court of Appeal confirmed that legal mechanisms exist to protect those whose decision-making capacity is affected in ways not recognised by the 2005 act.
The case before the Court of Appeal concerned the actions of DL, a man in his 50s, towards his 90-year-old mother and 85-year-old father, with whom he lived. DL had behaved aggressively towards his parents, both physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes.
DL’s parents did not lack mental capacity under the 2005 act test to decide where to live and with whom to associate. Therefore, the 2005 act, and hence the Court of Protection, could not help them.
For this reason, the High Court’s inherent jurisdiction in relation to vulnerable adults was put forward as an alternative means of securing the parents’ welfare. The Court of Appeal held that the inherent jurisdiction could fill the gaps left by the 2005 act. The High Court was able to intervene, and make protective orders, in a case where a vulnerable adult’s “ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005”. Those other matters are that:
- the adult is under constraint; or
- the adult is subject to coercion or undue influence; or
- for some other reason, the adult is “deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent”.
The conditions giving rise to the High Court’s powers under the inherent jurisdiction have been dubbed situational incapacity. For further details, the Court of Appeal’s decision is recommended reading.