Safeguarding pre Care Act

‘Safeguarding Vulnerable Adults’ is the ‘umbrella’ title given to social services’ ordinary statutory community care assessment and care planning functions, and their functions under the Mental Health Act, when the particular reason for the referral or scrutiny of the individual is a perceived risk to the welfare of a vulnerable adult, usually at the hands of someone else, but sometimes from their own behaviour or choices. This was formally referred to as Adult Protection but there never has been and still is not a set of statutory functions (neither duties nor discretions) giving rise to this activity. Its only potential legislative derivation would be the Human Rights Act, and European Convention, which impose positive duties on public bodies in relation to dignity, respect and protection from inhuman or degrading treatment  and which, in some cases under European law, though not the UK Act, require not only that the State not act in any such way, but also that the State steps in to stop others from acting in that way, vis a vis other people, including even their relatives….

Risk Factors that place people at particular risk of being abused

There are certain risk factors and situations that may place people at particular risk of being abused. The presence of one or more of these factors does not automatically imply that abuse will result, but may increase the likelihood.

Certain personal assistance and intimate care needs may present more opportunity for abuse

Usual role reversal e.g. son or daughter caring for older parent

Living in the same household as a known or suspected abuser

Where there is a family history of abuse

Where an adult is particularly dependent on others and not seen by outsiders

Where forms of discriminatory behaviour are present

A dangerous or disproportionately restrictive physical environment, for example a lack of personal space

A significant change in the lifestyle of a member of the household

A member of the household experiencing emotional or social isolation

The existence of financial problems, stresses and anxieties, real or apparent

Differences in communication or a breakdown in communication

A pervasive culture of enforced as opposed to actively chosen compliance

Where a disabled person is physically unable to defend her/himself or assert his or her rights

Poor care standards, rigid routines or insufficient knowledge base within institutions.

However, there is now legislation governing the protection of certain people in relation to those with whom they may come in contact. Section 59 of the Safeguarding Vulnerable Groups Act 2006 defines a ‘vulnerable adult’ as “someone who has attained the age of 18 and fits any of the following descriptions :

– in residential accommodation (regardless of whether it is purchased for them or by them, directly, for themselves)
– in sheltered housing
– receiving domiciliary care (regardless of the identity of the purchaser)
– or receiving any form of health care,
– detained in lawful custody, by virtue of an order of a court under supervision by a person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000
– receives a welfare service of a prescribed description (as defined by s.16(5) of the Act, i.e. including Supporting People services)
– receives a community care service due to his age, disability or because she is an expectant or nursing mother,
– is in receipt of payments made to him (or to another on his behalf) in pursuance of arrangements under section 57 of the Health and Social Care Act 2000
– requires assistance in the conduct of his own affairs.

When the term is used in professional practice it is usually intended to cover people who are more than normally vulnerable to abuse, by reason of their physical or mental condition, whether it be financial, sexual, emotional, institutional or physical abuse.

For other purposes, most adult protection authorities’ policies contain a definition which harks back to the Law Commission’s approach from the 1990s:

A vulnerable adult is a person over 18 years old who is or may be eligible for community care services by reason of mental or other disability, age or illness, and who is unable to take care of her/himself, or unable to protect her/himself against significant harm or serious exploitation.

Vulnerable adults are most likely those adults who:
• are elderly and very frail
• suffer from mental illness, including dementia
• have a physical or sensory disability
• have a learning disability
• suffer from a severe, incapacitating physical illness
• would be at risk of losing their independence and well being if they did not receive appropriate health and social care support
• Are mentally incapable for whatever reason of self-protection through legal or physical means
• Are financially incapable of pursuing lawful self-protective measures

There is a potential legal problem here, because the general law treats people as capable of looking after their own interests, so long as they have mental capacity to take a decision for themselves, or can consent or refuse consent to an interference with their own autonomy. Thus, short of gentle persuasion of the person causing concern, around to the authorities’ view of the seriousness of the risks being run, there may be very little which may actually be done to help protect a mentally capacitated, but very physically ill, weak, dependent or frail person from perceived intimidation. The High Court seems determined to leave intact the idea of an inherent jurisdiction which can be invoked to protect people in such a situation even short of their being mentally incapable, despite the advent of the Mental Capacity Act and the usual principle that statutes supersede the common law; but the law is unclear, hotly debated, and only used in cases where it would be equally possible to take a different line on capacity, and see the difficulties facing the person in question as negating their ability to weigh up the pros and cons, given their particular situation.

As mentioned above, there are no express statutory powers which specifically mention safeguarding functions for vulnerable adults, other than provisions in s82 Care Standards Act  and Safeguarding Vulnerable Groups Act 2006 requiring employers in organisations who work with children or Vulnerable Adults to refer to the Independent Safeguarding Authority anyone who they have dismissed or removed from post because they have harmed a child or vulnerable adult, or would have done so if they had not left. The ISA then determine whether the individual should be included on the Vetting and Barring scheme .and operates along the same lines as the one in force for children. Inclusion on the informal precursor (the Consultancy Service Index) to that statutorily-based list (Protection of Children Act 1999) has been challenged on human rights grounds but it has been established that so long as it is done in good faith and after careful scrutiny of the evidence, it is not a lack of respect for someone’s private life, nor a breach of their right to a fair determination of a civil right, for the government to include someone on that register and provide access to it to others – see Secretary of State for Health ex p C . In addition a challenge by three care workers provisionally included on the list as contrary to their human rights was considered by the Court of Appeal in Wright & Others v Secretary of State for Health [2007]. It was held that suspension without an opportunity to put one’s case was a breach of human rights, and this has been followed under the new list in the case of  R (Royal College of Nursing and others) v SSHD and ISA [2010].
The Safeguarding Vulnerable Groups Act 2006 was intended to introduce a new vetting and barring procedure for those working with vulnerable adults (as defined above) or children. The potential for barring individuals reported to the ISA continues, with independent adjudication and tribunal rights of appeal. In terms of proactive safeguarding,  aspect of the scheme was put on hold by the coalition government in light of its impact on the idea of a Big Society, On the 11.02.11 the Coalition published their findings of their review into the scheme established by the Safeguarding Vulnerable Groups Act 2006, detailing how they intended to implement the vetting and barring scheme. Under the new proposals, which it is intended will be implemented under proposals set out with the Protection of Freedoms Bill. In particular they intend to merge the Criminal Records Bureau and ISA  so that this single body will provide a barring and criminal records disclosure service to  “help employers protect those at risk from people who seek to do them harm via work or volunteering roles”. The new barring regime should cover only those who may have regular or close contact with vulnerable groups, whether in paid or unpaid roles. Automatic barring should apply for those serious offences which provide a clear and direct indication of risk. Under the proposals however there will be no requirement for those seeking to work with vulnerable groups to register and there will be no proactive monitoring. Criminal records disclosures will continue to be available to employers and voluntary bodies but is likely to be revised to become portable through the introduction of a system which allows for continuous updating. The cost of checks is also likely to increase so that the scheme is ‘self financing’.
The new regime will likely retain current arrangements for referrals to the state barring body (currently the ISA) by employers and certain regulatory bodies, in circumstances where individuals have demonstrated a risk of harm to children or vulnerable adults. The current appeals arrangements will also continue, although the ISA may have the power to vary review periods following the recommendations made by the Court in R (Royal College of Nursing and others) v SSHD and ISA [2010]. The Coalition also propose to retain two offences under any new scheme, namely it will be an offence for a barred person to work with vulnerable groups in a regulated activity. It will also be an offence for an employer or voluntary organisation knowingly to employ a barred person in a regulated activity role.

Until such a time as this new regime is fully operational the Coalition have indicated that the current scheme will continue to operate though they do not intend to introduce the requirement to register in advance of starting a paid or voluntary post in a regulated activity. Instead it is intended that the ISA will maintain the barred list, with responsibility for reviewing any referrals for inclusion and that the current legal requirements for employers to carry out checks with the ISA and CRB prior to appointing an individual as well as criminal sanctions against those who are barred from taking up employment within a regulated activity will suffice to manage the risk to vulnerable groups.  More information is available from the ISA website.

Changes in registration law (registration with the Care Quality Commission, that is) mean that for the first time, people providing Supported Living services via an employer including prompting and supervision of people’s personal care will have to be regulated workers (and so employers will have to apply to the ISA for vetting and make referrals is an employee is dismissed or would have been for harming a vulnerable adult or child).

However, no-one wishing to work for a privately self-funding or direct payments client will have to be ISA vetted because the definition of working in ‘regulated activity’ includes the concept of doing so under the direction of a regulated activity provider, and people using direct payments for their own or for a family member or friend’s care do not count as regulated activity providers.

The following completely separate statutory provisions, however, should be seen as part of local authorities’ wider powers to safeguard vulnerable adults, because together they constitute a framework for taking actual steps to intervene to prevent harm, just like the provisions in the Children Act allow for emergency protection, prohibited steps orders etc.

  • ss2 and 3 Mental Health Act 1983 – admitting to a mental hospital for an assessment where a person is presenting a risk to himself or to someone else
  • ss7, 8 and 18 Mental Health Act 1983 – conferring private or public sector guardianship and returning a person under guardianship to a place of safety
  • s47 National Assistance Act 1948 – removing a person from their home, for reasons of public health or risk to the person concerned, and detention in a place of safety, pending resolution of the risk – still on the statute book despite clear conflict with certain Human Rights principles regarding speedy determination of the legality of lawful detention;
  • ss135 and 136 Mental Health Act 1983 – statutory powers of entry into the home of a person believed to be mentally disordered, on a warrant, and for a power for a constable to convey to a place of safety from there, or from a public place (s136).
  • Environmental Protection Act 1990 – powers of entry on the production of authority and proper notice to ascertain whether there is a statutory nuisance.
  • Public Health Act 1968- powers of entry to investigate and treat certain public health issues and power to require the vacation of premises during fumigation.
  • The Human Rights Act 1998 – whilst the primary purpose of the Human Rights Act 1998 is to minimise state interference in the lives of its citizens European Court case law has imported certain positive obligations to investigate and intervene in people’s lives, into articles 2, 3 and 8 of the Convention, particularly where the authority knew or ought to have known that the person was at risk of harm, either from themselves or another. But, as the Courts made very clear in Re Z (2004)  EWHC 2817  where the individual has full decision making capacity public authority duties under the HRA will not assume primacy over rights of autonomy and self-determination. A more recent restatement of that principle in a different context is the case ofJenkins v HM Coroner, in which a judicial review court upheld the coroner’s approach that a capacitated person’s unorthodox views about conventional medicine in the face of imminent septicaemia needed to be respected and that as such, an onlooker did not owe a duty of care to override that person’s wishes whilst they still had capacity.
  • Mental Capacity Act 2005 – not so much a newpower, but a protection from legal redress wherever one intervenes proportionately, having concluded reasonably that the person in question lacks capacity in an issue-specific way – such that it might be said to have created scope for lawful touching, restriction of liberty, deprivation of liberty for vital acts pending determination by a court, and for trespass and conversion of goods, regardless of the person’s lack of ability to consent or refuse consent to what is about to be done.

The authority to act to protect individuals contained with the above statutes must be read in conjunction with basic public law principles. These principles do not dictate what actions are available to public bodies charged with protective duties but rather merely ensure that they act only within the powers that have been conferred upon them and do so in a way that is reasonable, procedurally fair and rational.

Further, following the decision by the Court of Appeal in X and Y (by their Litigation Friend the Official Solicitor) v LB of Hounslow (2009) EWCA Civ 286 it is possible that a local authority could owe an individual a common law duty of care to protect people from harm, including from a third party. Although in this particular case no common law duty of care existed, the Courts did indicate that such a duty could exist. But the Court was very careful to emphasise that there would need to clear evidence that the local authority had assumed responsibility for the individual and therefore owed a duty of care. This would be over and above the mere forseeability of harm, suggesting that one might arise where the local authority had assumed responsibility to protect the individual from a specific threat or had caused the source of danger to the individual or where the perpetrator of the harm was under the control and supervision of the authority.

The framework for safeguarding adults is very much less cohesive than it is for children, and agencies therefore face bigger hurdles to joint working and information sharing, than they would if they were trying to protect children. The culture of co-operation between schools, the NHS, social services, lawyers and the police in respect of child protection is long-standing, but vulnerable adults have had to wait for the courts to provide common law remedies, rather than rely on Parliament to have put them into statute. Familiarity with these remedies is therefore bound to be patchy in practice. The Mental Capacity Act should improve everyone’s understanding of the need for justification for formal intervention, when disputes cannot be resolved through best interests consultation meetings. Best Interests intervention provides lawful authority for touching and decision making, for people lacking capacity in relation to specific issues, but it does not authorise the kind of taking over and management of contractual and property related issues that so often provide the context for abuse – home ownership or sale, and what is happening to someone’s money in a bank account or whether someone should or can move from a care home into a tenancy based sheltered setting. For intervention of that degree, deputyship is required, because acquisition and disposal of property of anything more than a very small kind would require formal substitute decision making, not merely a legal defence against redress or complaint. .

Safeguarding authorities will be working within their own legal and operational constraints, which may appear to stymie much progress. For instance, there is an inevitable risk, under our present system that the mentally impaired victim of an assault does not start out with the same prospects as a fully capacitated person of seeing their attacker convicted. The criminal justice system is there to prosecute people, and a conviction depends on proof beyond a reasonable doubt – and there will often be a reasonable doubt in the mind of a jury if the witness evidence comes from someone mentally impaired. Thus the Police and CPS are not being deliberately obstructive when they take a decision not to approve papers for prosecution – they are simply working within a system which allows prosecution only when the public interest demands or at least justifies it. The strength and likely credibility of the evidence, and the resources which have to be spent on a full-blown prosecution have to be taken into account by those agencies. Risk of repetition of the abuse to a client, however, which is the only legitimate concern of social services, is an entirely different matter, to that of likelihood of guilt of any particular perpetrator. A health or social services body or private sector provider need only be concerned with the likelihood of guilt, if the alleged wrongdoer is one of their own employees…. However, following the case of R (on the app of B) v Director of Public Prosecutions & Equality And Human Rights Commission (2009)  there is now clear guidance which must be followed by the police and crown prosecution service to ensure that where a victim or witness has a learning difficulty special measures are in place to maximise the chance of a successful prosecution.

In our view it would be reasonable for local authorities to treat the existence of a charge and, beyond that, the transmission of papers to the Crown Prosecution Service for the formal decision on whether to prosecute, as sufficient evidence of risk which makes an incapacitated victim’s continuation in a particular setting potentially unacceptable. In terms of the National Health Service and Community Care Act, and statutes such as the Chronically Sick and Disabled Persons Act, it could trigger a finding of needs necessitating the making of arrangements by the LA, or the needs calling for some other service, or ‘a need for care and attention … not otherwise available’, and overall, a need above the local threshold for eligibility, (ie as Substantial or Critical under the ’prioritise need’ guidance. In such circumstances the authority must prepare a care or support plan, and if and when that is rejected out of hand by the prospective client and/or their relative or carer, the authority must then decide whether to take one of five further steps –
– claiming to act under Best Interests and s5 of the Mental Capacity Act without recourse to court, waiting to see if anyone resorts to court themselves by way of challenge;
– constituting themselves the guardian of the person, under guardianship,
– making an application to the Court of Protection to oust the person’s attorney from that person’s current status, and/or to apply to become a formally appointed welfare Deputy, or for the Court’s determination of the dispute about capacity or best interests
– applying under the Local Government Act 1972 for an injunction in the support of the criminal law, in place of the person who is being abused. See A Local Authority v DL, RL and ML [2010]
– using a section 2 order under the Mental Health Act (where the person is posing a threat to themselves).

Councils considering deputyship as a means for obtaining the kind of ongoing care and control that they enjoyed under the doctrine of necessity, if they went to court for declaratory relief, need to be aware of the Havering and Manchester cases decided in 2009.

In Havering, the court analysed deputyship and emphasised that the principle in s.16(4)(a) MCA suggests that there is little scope for the appointment of deputies on a general basis effectively to act as if they were donees of a general power under an LPA. “It is expected that a deputy will be appointed to take personal welfare decisions in only the most extreme cases and the court will usually seek to make an order in respect of a decision, rather than confer an ongoing power on a deputy”.  Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances.”

If the abuse is financial, there are steps which may be taken through the Court of Protection under the Mental Capacity Act 2005, e.g. financial deputyship which could oust another person who has been managing a person’s money in favour of the local authority or another suitable person taking on this role; or involving the police under the Fraud Act if the perpetrator appears to have breached a position of trust in relation to caring for a person’s finances; so this, too, offers a protective option.

The Guidance – ‘NO SECRETS’ was the government’s major contribution by way of guidance to this field, which requires councils to have adult protection policies and procedures in place. For an analysis of that document, click here ’NO SECRETS’.

In London new Pan London Procedures due to be implemented shortly, might improve joint working across the London Boroughs that choose to adopt the procedures, though the policy framework document is still subject to finalisation.   ‘Safeguarding Adults’ (advice issued by the Association of Directors of Social Services) is now the preferred starting point for the development of local procedures and joint working in this area. However, even that document does not focus on mental capacity as the cornerstone of protection, and is light on legal material for authorities to use.

Future reform or redevelopment of the law

Currently the Law Commission are consulting widely on Adult Social care. As part of this they have proposed that term vulnerable adults should be replaced by adults at risk to reflect the need to focus on the risks that a person faces rather than the characteristics of the person concerned and seek to further define an “adult at risk” as:
A person aged 18 or over and who:
• is eligible for or receives any adult social care service (including carers’ services) provided or arranged by a local authority; or
• receives direct payments in lieu of adult social care services; or
• funds their own care and has social care needs; or
• otherwise has social care needs that are low, moderate, substantial or critical; or
• falls within any other categories prescribed by the Secretary of State or Welsh Ministers; and
• is at risk of significant harm, where harm is defined as ill-treatment or the impairment of health or development or unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion).

In addition the Law Commission has proposed that any future adult social care statute should place a duty on local authorities to make, or cause to be made, such enquiries as it considers necessary where it has reasonable cause to suspect that a person appears to be an adult at risk and consider whether there is a need to provide services or take any other action within its powers in order to safeguard that person from harm.

They have also suggested that s.47 of the National Assistance Act 1948 be repealed as they are concerned that it could breach an individual’s rights protected under article 5 of the European Convention on Human Rights.

In January 2010 the government announced that it intended to place Adult Protection boards on a statutory footing. At present these boards are made up of statutory, independent and voluntary bodies focusing on the protection of vulnerable adults within their locality. They are responsibility for ensuring that appropriate policies and procedures are in place, that information and training is available and, when necessary, conduct serious case reviews. The Law Commission, in line with the Department for Health’s announcement, have requested views on whether any future statute should set out not only the functions and membership of the Adult Protection Board, but also the duty to contribute to serious case reviews and level of information sharing. For instance, in respect of information sharing they have proposed that there should be a general duty on local authorities to set up arrangements which will promote co-operation between agencies and an enhanced duty whereby the local authority will have the power to request certain bodies provide assistance during assessments and at the point of service delivery and that those bodies have a duty to duly consider the request.

Full details of the consultation can be found at: http://www.lawcom.gov.uk/docs/cp192.pdf

The aims and objectives of most interagency protocols are as follows:

To provide a framework for statutory agencies and those in the private and voluntary sectors to work together to improve the quality of service to vulnerable adults, their carers and local communities recognising that every person has a right to live a life free from abuse and neglect.

To develop relationships between the Safeguarding Adults Partnerships and key local partnerships e.g. Community Safety Partnership and other multi-agency for e.g. the Domestic Abuse Forum.

To provide guidance to local agencies that may have a responsibility to investigate and take action when a vulnerable adult is believed to be suffering abuse or neglect.

The primary aim for all agencies is to prevent abuse. Where preventative measures fail, agencies should ensure that robust procedures are in place for dealing with incidents of abuse and that procedures are in place so that we learn from these incidents to prevent further incidents of abuse.

Objectives

To work in a preventative manner to protect vulnerable adults from abuse.

To respond sensitively and coherently to reported incidents of abuse in a consistent manner, in accordance with these guidelines.

To co-ordinate action and services in order to best protect and assist vulnerable adults.

To ensure the safety of vulnerable adults by integrating strategies, policies and services relevant to abuse within the framework of all relevant legislation.

To ensure that adults identified as vulnerable have their right to privacy and confidentiality respected. In so far as is consistent with this right, all agencies should seek to share information to ensure the safety and well-being of those individuals.
Basic Principles for Safeguarding Adults

Here are some basic principles to assist with safeguarding vulnerable adults, which can be used to inform decision making and which will help achieve a Human Rights Act and Mental Capacity Act-compliant outcome, so long as the officers’ reasoning is well-documented and evidenced.

In an emergency it is better to act in the best interests of the incapacitated person than not to act at all. Not to act could be negligent if the authority is already ‘in charge’, or it would likely amount to an unreasonable exercise of the authority’s public law functions of assessment or re-assessment.

From April 2009 this common sense principle was enshrined in law when changes to the Mental Capacity Act contained in the Mental Health Act 2007 were implemented, so as to give anyone who needs it a free-standing power to do any vital act, including the deprivation of someone’s liberty, and life-saving treatment, and not merely a defence against legal redress, as was the position under the common law of necessity. Legal protection was previously afforded under the Mental Capacity Act which said that ‘nothing stops’ anyone from doing any act thought to be necessary to prevent serious deterioration in a person’s condition, but this was strengthened by the amendments mentioned. Approval for anything more than very brief emergency deprivation of liberty can already be sought over the phone from the Court of Protection.

  • Wherever possible, urgent applications should be made within court hours. These applications will normally be dealt with at court but cases of extreme urgency may be dealt with by telephone. Telephone contact may be made with the courtduring business hours on 084 5330 2900.
    • When it is not possible to apply within court hours, contact should be made with the security office at the Royal Courts of Justice on 020 7947 6000. The security officer should be informed of the nature of the case.

When the issue is not an emergency, but relatives or close friends are suspected of abuse, it is better to seek guardianship or an Order from the Court of Protection than to continue negotiating indefinitely with them and rely on their consent to the proposals of the authority. This is partly because of a spate of cases in which the authority has assumed that it is in control of the situation and then acted in a high handed or covert way without there being any justification other than that it suited them to ignore the person with whom they should have been engaging. A recent example involved Manchester City Council being found liable for unlawful deprivation of liberty and breach of article 8 human rights of an adult foster carer and a client, for just such attitudinal reasons.

It must therefore be better in principle to ask for authority to take particular steps, rather than risk being a defendant and being castigated for doing something that was based on inappropriately inadequate engagement with consultees in the first place. An authority cannot reasonably be criticised for seeking legal authority to act, in cases of dispute.

Where there is no-one else involved and posing the perceived risk, other than the client lacking mental capacity, the authority must make a strategic decision whether to seek guardianship or rely on the statutory best interests cloak of legal protection. Section 5 of the Mental Capacity Act 2005 provides to all those acting in connection with the care or treatment of incapacitated adult (over the age of 16) protection from liability in legal proceedings where they have been acting in the person’s best interest and with a reasonable belief that the person lacked capacity on that issue, so long as they stuck to the approach in the Code of Practice. Guardianship now gives a local authority power to convey a person to a place of safety, regardless of their capacity, so long as the guardianship application has been duly made. It is obviously risking challenge in a difficult case, but is inevitably quicker and cheaper to take the stance that the authority should get on and do what there could be legal power to do, as declared by a court. Guardianship will provide another layer of statutory protection and individual protection against legal redress because of the need for permission of the High Court before any proceedings may be brought against anyone purporting to act under the Mental Health Act.

Following the implementation of Schedule AI of the Mental Capacity Act 2005 (as amended by the Mental Health Act 2007) in April 2009 it may be possible to authorise a deprivation of liberty through the new DoL Safeguards Procedure. However where ‘detention’ is not already authorised by another statutory provision it must be authorised by the court before the detention commences. This means that in any case of deprivation of liberty in supported living, or by the State in a person’s own home by the statutory authorities, an application to court must be made. DOLS process does not extend beyond the care home or hospital setting.

To comply with European Convention law, the justification for deprivation of liberty on the basis of unsound mind, requires that the evidence must establish an ‘unsoundness of the mind’ in the eyes of a medical practitioner, of a kind or degree warranting compulsory confinement, and that any order authorising detention must contain provision for an adequate review at reasonable intervals.

Case law in the last year has gone some way to clarifying whether attempts by a local authority to convey a person to a specific placement, involving for instance, actual sedation, would amount to deprivation of liberty and require DOLS process if the destination is a care home. The need for restraint in order to get someone somewhere may mean that they do not lack capacity and are not consenting, in which case deprivation is only legal under the Mental Health Act; but assuming that they lack capacity, the restraint itself would not require a DoLS authorisation, as it would be being done under s5 MCA. Deprivation of liberty could be justified under the Vital Act provisions pending a legal challenge. Likewise no DoLS order is needed specifically for the journey if one is returning a person against his wishes to a DoLS authorised placement.

In all other cases, requiring social work intervention, it will generally be sensible and cost-effective (though not enough to protect the client or the authority, in strict legal theory, from an allegation of trespass/assault) to obtain the consent of relatives, friends or carers, when impairment is severe. This is not because they can consent in law on behalf of the client, but because they are the ones most likely to mount a challenge to the authority’s assumption of best interests decision-making power regarding the person cared for. Also  they are the most likely consultees under the regime for making a Best Interests decision, under the Mental Capacity Act, and so they should be engaged on the matter in any event.

Where medical treatment is required, in an emergency, it will be wiser for the medical professionals to act under the cloak of legal protection offered by s5 of the Mental Capacity Act 2005, on the basis that the person lacks capacity, rather than to detain someone under the Mental Health Act for what would then have to be contended, sometimes obviously impossibly, to be medical treatment for the mental disorder or for a symptom of it or an injury done because of the mental disorder. Reliance on the MHA in the situation of intervention for clearly physical purposes only is an inappropriate use of compulsory powers for an inappropriate purpose.

 

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