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).
2. Consent to Information Sharing
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.
3. Consent to Treatment
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.