Capacity and Consent - The Principles of the Mental Capacity Act 2005

The Mental Capacity Act 2005 [external link] provides a statutory framework to empower and protect people who may lack capacity to make decisions and establishes a framework for making decisions on their behalf. This applies whether the decisions are life-changing events or everyday matters.  All decisions taken in the Safeguarding Adults process must comply with the Act.

The Mental Capacity Act 2005 states: 

“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or brain”.

Furthermore, a person is not able to make a decision if they are unable to:

• understand the information relevant to the decision or
• retain that information long enough for them to make the decision or
• use or assess that information as part of the process of making the decision or
• use language or communicate by any other means such as muscle movements, blinking an eye or squeezing a hand.

Mental capacity is time and decision specific. This means that a person may be able to make some decisions but not others at a particular point in time.  The principles of the Mental Capacity Act 2005 are as follows:

• An adult at risk has the right to make their own decisions and must be assumed to have capacity to make decisions about their own safety unless it is proved (on a balance of probabilities) otherwise
• Adults at risk must receive all appropriate help and support to make decisions before anyone concludes that they cannot make their own decisions
• Adults at risk have the right to make decisions that others might regard as being unwise or eccentric and a person cannot be treated as lacking capacity for these reasons
• Decisions made on behalf of a person who lacks mental capacity must be done in their best interests and should be the least restrictive of their basic rights and freedoms.

When and adult at risk is assessed as having capacity to consent to the safeguarding process and safeguarding adults’ procedures are being considered, it is good practice to obtain the consent of the adult believed to be at risk, if this is appropriate and safe to do so. Consent should be sought where it is appropriate and safe to do so and should be obtained as early as possible and if appropriate, by the alerting agency so that the concerns can be progressed to ensure the safety of the adult at risk. The fact that consent has been granted must be recorded.

If the adult at risk cannot be persuaded to give their consent, unless it is considered dangerous to do so, it should be explained to them that the information will be shared without consent. The reasons should be given and recorded. The safeguarding principle of proportionality should underpin decisions about sharing information without consent, and decisions should be on a case-by-case basis.

If consent has not been granted the reason for this must also be recorded. Only the individual can give consent and no-one else can consent on their behalf. In situations where the adult at risk has capacity and consent has not been sought or has not been granted, practitioners still have a legal duty to refer the safeguarding concern to the Local Authority. Practitioners should explain this to the adult at risk and reassure them that the Local Authority will discuss this with them further before progressing.

Independent Advocacy under the Care Act 2014

Advocacy and the duty to involve: Local Authorities must involve people in decisions made about their care and support.  No matter how complex a person’s needs, Local Authorities are required to help people express their wishes and feelings, support them in assessing their options and assist them in making their own decisions.  The advocacy duty will apply from the point of first contact with the local authority and at any subsequent stage of the assessment, planning, care review, safeguarding enquiry or safeguarding adult review.  If it appears to the authority that a person has care and support needs, then a judgement must be made as to whether that person has substantial difficulty in being involved and if there is not an appropriate individual to support them.  An independent advocate must be appointed to support and represent the person for the purpose of assisting their involvement if these two conditions are met and if the individual is required to take part in one or more of the following processes described in the Care Act:
•    a needs assessment
•    a carer’s assessment
•    the preparation of a care and support or support plan
•    a review of a care and support or support plan
•    a child’s needs assessment
•    a child’s carer’s assessment
•    a young carer’s assessment
•    a safeguarding enquiry
•    a safeguarding adult review
•    an appeal against a local authority decision under Part 1 of the Care Act [external link]

For further guidance see SCIE: Advocacy and the duty to involve [external link].