If you want to report a Safeguarding concern, please see Report It
These materials have been created to help support health and social care professionals working with individuals whose decision-making capacity is limited, fluctuating, absent or compromised.
The Care Act 2014 sets out a clear legal framework for how we should protect adults at risk of abuse or neglect. The Care Act has created a single, modern law that makes it clear what kind of care people should expect.
A local authority must act when it has ‘reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there):
- has needs for care and support (whether or not the authority is meeting any of those needs),
- is experiencing, or is at risk of, abuse or neglect, and
- as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.’ (Care Act 2014, section 42)
First introduced by the Department of Health in 2011, but now embedded in the Care Act, these six principles apply to all health and care settings.
1. Empowerment – People being supported and encouraged to make their own decisions and informed consent
2. Prevention – It is better to take action before harm occurs.
3. Proportionality – The least intrusive response appropriate to the risk presented.
4. Protection – Support and representation for those in greatest need.
5. Partnership – Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse.
6. Accountability – Accountability and transparency in safeguarding practice.
Care and support statutory guidance: Updated 16 June 2022
Making Safeguarding Personal
LGA Making Safeguarding Personal Toolkit: The practice toolkit handbook guides you through the best approach and effective application of safeguarding with a range of helpful tools and practice-based case examples
Self Neglect and Hoarding
The Mental Capacity Act (2005) is underpinned by five key principles (Section 1, MCA). It is useful to consider the principles chronologically: principles 1 to 3 will support the process before or at the point of determining whether someone lacks capacity. Once you’ve decided that capacity is lacking, use principles 4 and 5 to support the decision-making process.
Principle 1: A presumption of capacity
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
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Principle 2: Individuals being supported to make their own decisions
A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
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Principle 3: Unwise decisions
People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
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Principle 4: Best interests
Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
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Principle 5: Less restrictive option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
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See Code of Practice (2007) for further guidance
When should capacity be assessed?
You might need to assess capacity where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness of disability. Lack of capacity may not be a permanent condition. Assessments of capacity should be time- and decision-specific. You cannot decide that someone lacks capacity based upon age, appearance, condition or behaviour alone.
The test to assess capacity
Two-stage functional test of capacity
In order to decide whether an individual has the capacity to make a particular decision you must answer two questions:
- Stage 1: Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
- Stage 2: Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
- understand information given to them
- retain that information long enough to be able to make the decision
- weigh up the information available to make the decision
- communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
If a person has been assessed as lacking capacity than any action taken, or any decision made for or on behalf of that person, must be made in his or her best interests (principle 4). The person who has to make the decision is known as the ‘decision-maker’ and normally will be the carer responsible for the day-to-day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation need to be made.
What is ‘best interests?
The Act provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person determining capacity must consider. In addition, people involved in caring for the person lacking capacity have to be consulted concerning a person’s best interests.
The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA).
Independent mental capacity advocate (IMCA) – IMCAs are a statutory safeguard for people who lack capacity to make some important decisions. This includes decisions about where the person lives and serious medical treatment when the person does not have family of friends who can represent them. IMCAs can also represent individuals who are the focus of adult protection proceedings. The Deprivation of Liberty Safeguards introduced further roles for IMCAs.
IMCAs are a legal safeguard for people who lack the capacity to make specific important decisions: including making decisions about where they live and about serious medical treatment options. IMCAs are mainly instructed to represent people where there is no one independent of services, such as a family member or friend, who is able to represent the person.
Who should get an IMCA?
An independent mental capacity advocate (IMCA) must be instructed (1) for people in the following circumstances
- The person is aged 16 or over (2)
- A decision needs to be made about either a long-term change in accommodation (3) or serious medical treatment (4),
- The person lacks capacity (5) to make that decision, and
- There is no one independent of services, such as a family member or friend, who is “appropriate to consult” (6).
In adult protection cases an IMCA may be instructed even where family members or others are available to be consulted.
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Lasting Power of Attorney
Attorneys appointed under Lasting Powers of Attorney (LPAs) – the Act introduces a new form of Power of Attorney which allows people over the age of 18 to formally appoint one or more people to look after their health, welfare and/or financial decisions, if at some time in the future they lack capacity to make those decisions for themselves.
Advance decisions to refuse treatment – the Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future.
The Deprivation of Liberty Safeguards is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm.
A Supreme Court judgement in March 2014 made reference to the ‘acid test’ to see whether a person is being deprived of their liberty, which consisted of two questions:
- Is the person subject to continuous supervision and control? and
- Is the person free to leave? – with the focus, the Law Society advises us, being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.
If someone is subject to that level of supervision, and is not free to leave, then it is almost certain that they are being deprived of their liberty.
But even with the ‘acid test’ it can be difficult to be clear when the use of restrictions and restraint in someone’s support crosses the line to depriving a person of their liberty.
Each case must be considered on its own merits, but in addition to the two ‘acid test’ questions, if the following features are present, it would make sense to consider a deprivation of liberty application:
- frequent use of sedation/medication to control behaviour
- regular use of physical restraint to control behaviour
- the person concerned objects verbally or physically to the restriction and/or restraint
- objections from family and/or friends to the restriction or restraint
- the person is confined to a particular part of the establishment in which they are being cared for
- the placement is potentially unstable
- possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor’s letter
- the person is already subject to a deprivation of liberty authorisation which is about to expire.
How are DOLS authorised?
The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. They include:
- The person is 18 or over (different safeguards apply for children).
- The person is suffering from a mental disorder.
- The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment.
- The restrictions would deprive the person of their liberty.
- The proposed restrictions would be in the person’s best interests.
- Whether the person should instead be considered for detention under the Mental Health Act.
- There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process.
If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan so that the person can be supported in a less restrictive way.
If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year.
A person may need to be deprived of their liberty before the supervisory body can respond to a request for a standard authorisation. In these situations, the managing authority can use an urgent authorisation. Urgent authorisations are granted by the managing authority itself. There is a form that they have to complete and send to the supervisory body.
The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. It can only be extended (for up to a further seven days) if the supervisory body agrees to a request made by the managing authority to do this.
When using an urgent authorisation, the managing authority must also make a request for a standard authorisation. The managing authority must have a reasonable belief that a standard authorisation would be granted if using an urgent authorisation.
Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Their knowledge of the person could mean that deprivation of liberty can be avoided. The managing authority should make a record of their efforts to consult others.
In July 2018, the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. It replaces the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).
Three assessments will form the basis of the authorisation of Liberty Protection Safeguards:
- a capacity assessment
- a ‘medical assessment’ to determine whether the person has a mental disorder
- a ‘necessary and proportionate’ assessment to determine if the arrangements are necessary to prevent harm to the person and proportionate to the likelihood and seriousness of that harm
The target date for implementation is now 1 April 2022. Prior to this, following a 12-week consultation planned for 2021, both a single Mental Capacity Act and LPS Code of Practice, and regulations, will be laid before Parliament and subsequently published. The sector trusts this will bring clarity to some outstanding questions about how LPS will work in practice and the training and implementation required.
Guidance: Liberty Protection Safeguards factsheets
You must apply to the Court of Protection if you want to challenge a standard or urgent authorisation that has deprived someone lacking mental capacity of their liberty.
You may want to do this if you think:
- the order may not have been authorised properly
- this action is not in the person’s best interests
- the person has mental capacity to decide their own treatment
If the person who lacks mental capacity doesn’t live in a care home or hospital but is being deprived of their liberty, you must apply to the court to get an order authorising the restriction of their freedom.
To do this, use application form – COP DOL11.
You’ll find more guidance in the practice direction.
Cases that involve more than just deprivation of liberty
If there are a number of decisions the court needs to consider – eg about care and where someone should live – you should apply for a personal welfare decision.
Refer for a Coventry SAR
- Safeguarding Toolkit for professionals to use as a guide when deciding if an individual case meets the criteria for a Safeguarding Adult Review.
- This form is to be completed to request a SAR only.
- West Midlands Safeguarding Adults SAR guidance
Refer for a Warwickshire SAR
A Safeguarding Adults Review (SAR) is a process for all partner agencies to identify the lessons that can be learned from particularly complex or serious safeguarding adult cases, where an adult in vulnerable circumstances has died or been seriously injured, and abuse or neglect has been suspected. As a result of a detailed review, recommendations are made to change or improve practice and services.
The aim of the process is to learn lessons and make improvements, not to apportion blame to individual people or organisations.
A SAR is about promoting effective learning and improvement to prevent future deaths or serious harm occurring again. It relies on a spirit of openness to learning about what went well, as well as what could be improved.
Further information can be found in the Care and Support Statutory Guidance, Chapter 14, paragraphs 14.133 and 14.134.
* In the context of SARs, something can be considered serious abuse or neglect where, for example the individual would have been likely to have died but for an intervention, or has suffered permanent harm or had reduced capacity or quality of life (whether because of physical or psychological effects) as a result of the abuse or neglect.
- SAR sheet for family, friends and carers
- West Midlands SAR information sheet for individuals
- Analysis of Safeguarding Adult Reviews: April 2017 – March 2019
- WM Safeguarding Adults Review Information leaflet
Age UK offers support and services to older people.
You can find out more by visiting their website or by calling 02476 231 99
Alcoholics Anonymous offer support personal recovery and continued sobriety of individual alcoholics.
You can find out more by visiting their website or by calling 0845 769 7555.
Change Grow Live
Change Grow Live is a free and confidential drug and alcohol service for adults, families and affected others. It can also help to support offenders.
You can find out more by visiting their website or by calling 02476 010 241.
Citizens Advice Bureau
The Citizens Advice Bureau provide free, confidential information and advice to assist people with money, legal, consumer and other problems.
You can find out more by visiting their website or by calling 02476 223 284.
Coventry Housing Options
Coventry Housing Options is a service run by Coventry City Council which provides assessments of entitlement to housing for people who are homeless or threatened with homelessness.
You can find out more by visiting their website or by calling 02476 834 025.
Coventry Refugee Centre
Coventry Refugee Centre welcomes welcome of refugees and migrants to help them settle in Coventry. They also support their integration, and to encourage them to contribute to the life of the city.
You can find out more by visiting their website or by calling 02476 227 254.
MIND is a national charity that provides support for those with mental health problems.
You can find out more by visiting their website or by calling 02476 552 84
Samaritans provide a 24 hour helpline to those who are upset, troubled or who are feeling suicidal.
You can find out more by visiting their website or by calling 116 123.
The Tamarind Centre
The Tamarind Centre provides support to the African Caribbean and Asian communities of Coventry who are experiencing mental health problems.
You can find out more by visiting their website or by calling 02476 227 712.
Victim Support give emotional and practical help to people who have been affected by crime.
You can find out more by visiting their website or by calling 0300 303 1977