Placing the Adult at Risk at the Centre of Safeguarding

It is a legal requirement under the Care Act 2014 to seek consent from the adult at risk before reporting a safeguarding concern, unless:

1. Seeking consent will increase the level of risk posed to them (or a child or other adult at risk); or
2. Consent cannot practically be sought (for example, the referrer is being denied access to the adult or the adult cannot be located in a timely way); or
3. The adult lacks capacity to consent, and a decision has been made that reporting a concern is in their best interests.

Note: A mental capacity assessment must be completed before reaching the conclusion that the adult lacks capacity to consent.

For guidance about assessing capacity, see: The Mental Capacity Act 2005 Resource and Practice Toolkit.

Where consent has not been sought the reasons should be clearly recorded in line with recording requirements of the relevant agency or partner organisation.

Note:  If consent has not been sought because it was not possible to locate the adult at risk in a timely way, the adult at risk should be notified that a concern has been reported as soon as possible so that their views and wishes can be considered in any subsequent decision making, ensuring an appropriate and proportionate response.

If the adult at risk does not give their consent further questions should be asked as necessary to determine whether or not their wishes should be overridden, and a concern reported.

It is only appropriate to report a concern without consent if:

1. It is in the public interest e.g., there is also a risk to others, a member of staff or volunteer is involved, or the abuse has occurred on property owned or managed by an organisation with a responsibility to provide care;
2. The adult at risk lacks mental capacity to consent, and it is in their best interests;
3. The adult at risk is subject to coercion or undue influence, to the extent that they are unable to give consent;
4. It is in the adult at risk’s vital interests (to prevent serious harm or distress or life threatening situations).

Where a decision has been made to report a concern without the adult at risk's consent the reason for doing so should be clearly recorded on the safeguarding concern form.

Note: If an adult at risk declines safeguarding support that is not the end of the matter. Consideration should be given to ways in which the risk could be managed or mitigated, taking into account the impact of abuse or neglect on the adult at risk’s wellbeing, including their 'vital interests' and the impact on others in the situation.

This is recommendation four of Understanding what constitutes a safeguarding concern and how to support effective outcomes (Local Government Association).

Whenever a decision is being made about any action that is likely to have a direct impact on the adult at risk, their consent should also be sought (unless any of the points in 2.1 above apply).

This could be at any stage of the process and includes:

• Decisions about how to manage immediate risk;
• Decisions to manage ongoing risk;
• Decisions about exiting safeguarding.

If an adult is subject to coercion and control or undue influence by another person this may impair their judgement and could impact on their ability to make decisions about their safety. If this is the case, Mental Capacity Policy and Procedures may not cover the particular situation. Professionals from a range of disciplines will need to work with the person, to explore options that may be available to keep them safe. Supporting people who are subject to coercion is often complex and challenging work. If the situation cannot be resolved in other ways, you may need to seek legal advice regarding whether to apply to the High Court for inherent jurisdiction.

Whenever the outcome of a safeguarding concern is to instigate a S42 enquiry the local authority has a duty under Section 68 of the Care Act to make an independent advocate available to the adult at risk when:

1. There is no appropriate other person to support and represent them; and
2. They feel that the adult at risk would experience substantial difficulty being fully involved in the safeguarding process without support.

The local authority also has a power (but not a duty) to make advocacy available in other situations on a case by case basis if it deems this appropriate and is able to do so. For example, when instigating an enquiry outside of the S42 duty.

Having substantial difficulty is not the same as lacking mental capacity.

See: The Care Act 2014, Determining Substantial Difficulty for information about how to determine substantial difficulty.

See the Mental Capacity Act 2005 Resource and Practice Toolkit, with guidance about assessing capacity and making best interest decisions.

An appropriate person for general representation purposes is not the same as an appropriate person for independent advocacy under the Care Act.

See: The Care Act 2014, An Appropriate Other Person for information about the difference and how to establish whether there is already an appropriate person.

A person can act as an appropriate person if:

1. They are not engaged in providing care or treatment for the adult at risk (in either a professional or paid capacity);
2. They are not implicated in the safeguarding adults concern;
3. The adult at risk has capacity and is able to consent to being represented and supported by them;
4. The adult at risk lacks capacity to consent, but the Local Authority is satisfied that being represented and supported by the person wishing to do so would be in their best interests;
5. They have demonstrated that they have adequate direct contact with the adult in order to represent and support them effectively;
6. They haves demonstrated adequate knowledge of safeguarding processes;
7. They have demonstrated they are able to act independently from the Local Authority;
8. They are not employed by or involved with the Local Authority in any way;
9. There is no conflict of interest or dispute between the adult at risk and the person wishing to represent them; and
10. Where the adult at risk lacks capacity there is no conflict of interest or dispute between the person wishing to represent them and the Local Authority about what is best for the adult at risk.

Note: It is not sufficient for a person wanting to support and represent an adult at risk under the s68 of the Care Act to know them well or love them deeply. They must be able to support the adult at risk to be actively involved with safeguarding adults' process. It is the local authority’s decision as to whether a family member or friend can act as an appropriate person to facilitate the adult at risk’s involvement.

The role of an independent advocate appointed under the Care Act is not the same as the role of a general advocate or any other type of advocate (for example an Independent Mental Capacity Advocate or an Independent Mental Health Advocate).

An independent advocate appointed under the Care Act must both facilitate and maximise the involvement of the adult at risk with substantial difficulty in the safeguarding process that is taking place.

For information about the ways in which an independent advocate should fulfil their role, see: The Care Act 2014, The Role of an Independent Advocate.

Adults at risk who lack capacity will likely be legally entitled to advocacy under both the Care Act and the Mental Capacity Act 2005.

The Care Act statutory guidance recognises that it would not normally be appropriate or practical for an adult at risk to have 2 advocates and gives the local authority the responsibility to make a decision about the best type of advocacy support.

There are various factors that should influence this decision (such as existing rapport with an advocate or whether any important decisions are likely to be the outcome of the safeguarding process) and the local authority must ensure that whatever it decides, it does not deny the adult at risk any of the specialist advocacy skills they need or are entitled to.

Adults at risk eligible for an Independent Mental Health Advocate (IMHA) under the Mental Health Act 1983 will likely be entitled to advocacy under the Care Act.

The Care Act statutory guidance recognises that it would not normally be appropriate or practical for an adult at risk to have 2 advocates and gives the local authority the responsibility to make a decision about the best type of advocacy support.

There are various factors that should influence this decision (such as existing rapport with an advocate or the likely outcome of the safeguarding process) and the local authority must ensure that whatever it decides, it does not deny the adult at risk any of the specialist advocacy skills they need or are entitled to.

The advocacy referral can be made at any time and should be made without delay as soon as the duty applies.

Advocacy referrals should be made in line with local processes and requirements.

Regardless of whether or not independent advocacy is available in the local area the duty to provide it still applies. A failure to do so is a breach of this duty and of the law. It is the role of commissioners to ensure that advocacy services are in place and available when required, and it is the role of practitioners to make timely referrals to advocates to prevent unnecessary delays in the meeting of its duty.

If you are aware that advocacy support is required and is not yet available, urgent interim measures during the safeguarding response may need to be agreed without an advocate in place in order to reduce immediate risk to the adult from inaction. However, you must not proceed to close the case, or make long term or irreversible decisions until it is in place.

The duty upon the local authority is to make independent advocacy support available to any adult at risk who requires it. Once made available the duty is met.

If an adult at risk decides that they do not wish to engage in the advocacy support that has been made available to them they do not have to do so, but the local authority must still provide it.

The local authority is expected under the Care Act to support the adult at risk to understand the role of an advocate and promote its benefit to them so as to reduce the likelihood that they will not engage.

Wherever possible, every conversation with the adult at risk (or their representative) should be from a strengths-based perspective. This means that before you talk about external solutions to help achieve an outcome you must support the adult at risk to explore whether there is:

1. Anything within their own power that they can do to help themselves; or
2. Anything within the power of their family, friends or community that they can use to help themselves.

A strengths-based approach is empowering for the adult at risk and gives them more control over their situation and how best to resolve any issues in the best way for them. The end result may still be that the local authority or another organisation intervenes, but this decision will have been reached knowing that it is the most proportionate response available.

Adopting a strengths-based approach involves:

1. Taking a holistic view of the adult at risk’s needs, risks and situation in the context of their wider support network;
2. Helping the adult at risk to understand their strengths and capabilities within the context of their situation;
3. Helping the adult at risk to understand and explore the support available to them in the community;
4. Helping the adult at risk to understand and explore the support available to them through other networks or services (e.g. health);
5. Exploring some of the less intrusive/intensive ways the local authority or other organisations may be able to help (such as through prevention services or signposting).

Even if the adult at risk has been assessed as lacking capacity to make their own decisions within the safeguarding adult's process, it is still important that they are consulted.

The purpose of consulting and involving the adult at risk is to understand, as far as is reasonably ascertainable:

1. What their views are on any matters affecting the decision;
2. What is important to them (the relevant factors); and
3. What their preferred outcomes may be.

Note: 'Reasonably ascertainable' means the information that can be gathered in the time that is available before the decision needs to be made. What is available in an emergency will be different to what is available in other situations.

You must not proceed to make any Best Interest decision without carefully considering the information gathered from the person during consultation.

For further guidance see the Mental Capacity Act 2005 Resource and Practice Toolkit: Preparing to make a Decision.

If the adult at risk does not wish to be party to a discussion or meeting, their views and wishes in relation to desired outcomes and potential risk management strategies should still be sought and regarded.

If the adult at risk expresses a clear view or wish about any aspect of the safeguarding process, decisions made should reflect this as closely as possible.

The adult at risk should still be informed of any decisions made and supported to be a part of any subsequent discussions/meetings, if they wish to be.

Put simply an outcome is anything that, as a consequence of the safeguarding process the adult at risk:

1. Wants to achieve;
2. Wants to change; or
3. Wants to stay the same.

They can be expressed at any point in the safeguarding process, may change as the process evolves and must be regarded in all decision making.

The adult at risk’s desired outcomes provide clear aims for the safeguarding response to work towards.

Whether or not the adult at risk has been able to achieve their aims as a result of the safeguarding process is a measure of how successful it has been.

Understanding and supporting the adult at risk to achieve outcomes:

• Promotes choice and control about the way they want to live;
• Promotes an approach that concentrates on improving lives;
• Avoids assumptions, preconceptions and judgements;
• Reduces the risk of overly intrusive interventions;
• Increases resilience and reduces risk of future harm.

Outcomes could be broad, for example:

• For the abuse to stop;
• To feel safe.

They could also be specific, for example:

• To see more of my friends;
• To carry on going to my local pub;
• To have a girlfriend/boyfriend;
• To have sex with my partner;
• To make new friends;
• To get a job;
• To go to college;
• To move out from my parent's home;
• To leave my wife/husband;
• To carry on drinking/smoking when I want to;
• For the person who caused me harm to go to prison.

Additionally, whilst the outcomes are likely to be related to the adult at risk, they could also include the person who caused them harm or other adults who may be at risk.

Outcomes should be understood at the earliest opportunity.

If not already expressed, outcomes must be sought before carrying out any enquiries.

This can be done whoever is deemed most appropriate and proportionate to the presenting circumstances.

The desired outcomes of the adult should be clarified and confirmed by the conversation(s), to:

• Ensure that the outcome is achievable;
• Manage any expectations that the adult may have and;
• Give focus to the enquiry.

Staff should support the adult at risk to think in terms of realistic outcomes but should not restrict or unduly influence the outcome that the adult at risk would like. Outcomes should make a difference to risk, and at the same time satisfy the adult at risk’s desire for justice and enhance their wellbeing.

Outcomes should be recorded in line with the recording requirements for the safeguarding process taking place at the time they are agreed/expressed.

If the adult at risk has an outcome that is not related to the safeguarding process you should take steps to ensure that it is incorporated into any Care and Support Plan (or Care Plan if NHS Continuing Healthcare) or Support Plan if they are a carer.

Depending on the specific circumstances and the nature of the concern raised, the outcomes that the adult at risk wants to achieve may or may not be in line with the outcomes that others would wish for them.

For example, they may want to continue acting in a way that others may perceive as risky or problematic or they may want to undergo a major life change such as leaving home.

It is important that the outcomes reflect the things that the adult at risk wants to achieve and not what other people want to happen.

Sometimes an adult at risk will have an outcome that you know is outside of their means (or the means of the local authority) to achieve. Whilst it is important for the safeguarding response to have a goal to work towards, having an outcome that is not realistic will ultimately only have a detrimental impact on Wellbeing because it will likely never be achieved.

You should be sensitive in your approach but you must endeavour to support the adult at risk to realise that the outcome they have may not be achievable.

You could also encourage the adult at risk to break the outcome down into smaller, more realistic outcomes that may achieve the same positive effect on their Wellbeing.

Even if the adult at risk has been assessed as lacking capacity to make their own decisions within the safeguarding adult's process, it is still important that they are consulted and their outcomes sought.

The purpose of consulting and involving the adult at risk is to understand, as far as is reasonably ascertainable:

1. What their views are on any matters affecting the decision;
2. What is important to them (the relevant factors); and
3. What their preferred outcomes may be.

Note: 'Reasonably ascertainable' means the information that can be gathered in the time that is available before the decision needs to be made. What is available in an emergency will be different to what is available in other situations.

You must not proceed to make any Best Interest decision about outcomes without carefully considering the information gathered from the person during consultation.

For further guidance see the Mental Capacity Act 2005 Resource and Practice Toolkit: Preparing to make a Decision.

The adult at risk’s views, wishes and desired outcomes may change throughout the course of the enquiry. There should be an on-going dialogue and conversation with the adult at risk to ensure their views and wishes are checked as the enquiry continues, and enquiries re-planned should the adult at risk change their views.

Whenever the safeguarding process is to be closed, there should be follow up discussions with the adult at risk (or their representative) to evaluate the degree to which their desired outcomes have been met:

Were their desired outcomes:

1. Fully met;
2. Partially met;
3. Not met.

The evaluation should be that of the adult, and not of other parties. Whilst staff may consider that outcomes were met, the important factor is how actions have impacted on the adult. 

Outcomes provide an important base upon which the local authority and the Safeguarding Adults Board (SAB) should review and measure the impact that interventions are having on the lives of adults at risk, and the things that matter to them.

Good practice (when things have gone well) and learning (when they haven't) should be taken forward by the local authority and SAB to inform future interventions.