RCGP Safeguarding toolkit

Mental capacity is about being able to make your own decisions. It is decision and time specific therefore statements such as ‘an individual lacks capacity’ is, in law, meaningless.

Issues around capacity in adult safeguarding often cause the most challenges for all professionals involved, especially in situations where capacity fluctuates, where there is alcohol or substance addiction, where there is self-neglect and in situations where there are concerns about coercion. Central to adult safeguarding is the rights of adults and mental capacity legislation underpins these rights.

Each of the UK nations have legislation on mental capacity and you should be familiar with the relevant legislation for the UK nation you work in.

Mental Capacity legislation in the UK:

• The Mental Capacity Act 2005 applies in England and Wales.
• Adults with Incapacity (Scotland) Act 2000 applies in Scotland.
• Mental Capacity Act (Northern Ireland) 2016 is being implemented in stages in Northern Ireland.
• All mental capacity legislation applies to people aged 16 years and over.

The following GMC documents outline the core principles of mental capacity:

• Ethical topic: Mental capacity.
• Decision making and consent guidance.

Summary of mental capacity principles

The principles of mental capacity are:

• Presumption of capacity.
  You must start with the presumption that every adult has capacity to make decisions. A person has capacity if they can do all the following:
  • understand information relevant to the decision in question
  • retain that information – if information can be retained long enough for the individual to make a decision, then that is sufficient, even if this is only for a short period of time
  • use the information to make their decision
  • communicate a decision.
• Individuals being supported to make their own decisions.
  Individuals should be given all practicable steps to help them make a decision. This includes considering:
  • method of communication that the individual is most familiar with
  • best time of day and best location for the individual
  • whether it would be helpful to have another person present, taking into account whether the individual has expressed a wish to a particular person to be, or not to be, present
  • what the individual requires to learn about and understand the information relevant to the decision
  • Whether it is it possible to complete the assessment in one go, or is it necessary to come back and see the individual on more than one occasion   whether something can be done which might mean the individual would be able to make the decision (this includes helping the individual to understand they can make decisions).

It is important to be clear about the line between supporting a person to make a decision and making a disguised best interests decision. If the support required is, in truth, so integral to the decision-making process that the person is in effect carrying out the instructions of others rather than (for instance) responding to prompts, then it is likely that what is going on is best interests decision-making, and should be recognised as such.

• Unwise decisions.
  Individuals cannot be treated as unable to make a decision for themselves purely because they make an unwise decision.
  • An individual may not agree with the advice of professionals, but that does not mean they lack capacity to make a decision.
  • Each individual will have their own values and outlook which may be very different to our own or others’. It is important to seek to understand the individual’s values and life story as it relates to the decision in question.
• Best interests. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
• Least 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.

Assessing capacity

A capacity assessment is, in many ways, an attempt to have a real conversation with the person on their own terms and applying their own value system.

The very act of deciding to carry out a capacity assessment is not, itself, neutral, and the assessment process can often be (and be seen to be) intrusive. You must always have grounds to consider that one is necessary. Conversely, you must also be prepared to justify a decision not to carry out an assessment where there appeared to be a proper reason to consider that the person could not take the relevant decision.

Whilst the presumption of capacity is a founding principle, you should not hide behind it to avoid responsibility for a vulnerable individual. The more serious the issue, the more one should document the risks that have been discussed with the individual and the reasons why it is considered that they are able and willing to take those risks.

Steps to follow in assessing capacity:

1. Define what the specific decision is and what question needs to be answered. Ensure this precise question is asked of the individual during the assessment.
2. Identify the information relevant to the particular decision. This includes the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. Those reasonably foreseeable consequences can include not just the consequences for the individual, but also, where relevant, the consequences for others.
3. If the decision could have serious or grave consequences, you must test whether the individual can understand, retain, use and weigh those consequences.
4. Take all practical steps to help the individual before concluding that they are unable to make a decision (see section above on Individuals being supported to make their own decisions).

Lacking capacity

A reminder that a person lacks capacity if (at the time the specific decision has to be made), they are unable to make the decision in question because of an impairment of, or disturbance in the functioning of, the mind or brain.

Decisional capacity and executive capacity

There are two elements involved in capacity: decisional capacity and executive capacity.

• Decisional capacity is the ability to understand and reason through the elements of a decision in the abstract.
• Executional capacity is the ability to realise when a decision needs to be put into practice and execute it at the appropriate moment – the ‘knowing/doing association’. It is the planning initiation, organisation, self-awareness and execution of tasks.

In adult safeguarding, both of these elements are really important:

• Attention should be paid to whether a person has clear decisional and executional ability (i.e. to both make and action decisions) to safeguard themselves in the specific context.
• In all circumstances, it should be considered that even where a person can make a decision, are they able to action that decision to safeguard themselves?

Factors that can impact executive functioning

Executive functioning and self-regulation depend on three types of brain function: working memory, mental flexibility, and self-control. These functions are highly interrelated, and the successful application of executive function skills requires them to operate in coordination with each other.

Each type of executive function skill draws on elements of the others.

• Working memory governs our ability to retain and manipulate distinct pieces of information over short periods of time.
• Mental flexibility helps us to sustain or shift attention in response to different demands or to apply different rules in different settings.
• Self-control enables us to set priorities and resist impulsive actions or responses.

Harvard University, Center on the Developing Child, goes on to outline that children aren’t born with these skills—they are born with the potential to develop them. Some children may need more support than others to develop these skills. In other situations, if children do not get what they need from their relationships with adults and the conditions in their environments—or (worse) if those influences are sources of toxic stress—their skill development can be seriously delayed or impaired. Adverse environments resulting from neglect, abuse, and/or violence may expose children to toxic stress, which can disrupt brain architecture and impair the development of executive function.

Executive functioning can be further broken down into different elements. These are needed by individuals to make appropriate decisions, employ problem solving abilities and have the ability to carry out their own wishes and decisions. Disruption of any of these functions can result in difficulties in all these areas.

There are a number of factors which can impact executive function. Ellie Atkins’ (Aspiring practitioner academic with NHS Research & Development Northwest & Adult Social Care: Complex needs services, Manchester City Council), research paper ‘Opening the door for people with hidden disabilities and differences’, highlights the hidden disabilities and differences that are often undiagnosed but can impact on executive function: 

Atkins found that “understanding people’s life stories was critical to developing a deeper understanding of how people present”.

It is therefore of great importance that when we are assessing capacity, especially executive capacity, we are always mindful of these possible hidden disabilities and differences and use our professional curiosity to try to understand the reasons for behaviours in others that we can’t make sense of.

Unwilling to safeguard or unable to safeguard?

The Adult Support and Protection (Scotland) Act 2007: Code of Practice, outlines one of the key challenges in safeguarding which is being able to distinguish between an adult who is unable to safeguard themselves and an adult who is unwilling to safeguard themselves. In practice, this distinction can be very difficult to make and requires careful consideration. The Code of Practice explains this further:

“All adults who have capacity have the right to make their own choices about their lives and these choices should be respected if they are made freely. However, for many people the effects of trauma and/or adverse childhood experiences may impact upon both their ability to make and action decisions, and the type of choices they appear to make. In this context it is reasonable to envisage situations in which these experiences, and the cumulative impact of them through life, may very well have rendered some people effectively unable, through reliable decision making or action, to safeguard themselves.

Similar considerations apply to coercive control or undue pressure. In such situations the control exercised over a vulnerable person may also effectively render them unable to take or action decisions that would protect them from harm.

It is therefore important, as part of any capacity assessment, to understand the person's decision-making processes. This should include an understanding of any factors which may have impacted upon them with the effect of impinging on, or detracting from, their ability to make and action free and informed decisions to safeguard themselves. This could therefore mean that in these circumstances they should be regarded as unable to safeguard themselves.

Other circumstances can impact on the extent to which a person is meaningfully able to safeguard themselves. Refusing to give a random stranger money is, for example, very far removed from the situation where it is the person's relative who is making such a request, and where the adult is dependent upon that relative for support. For fear of repercussions or removal of support, they may feel afraid of refusing the request.

It is also important to bear in mind that an inability to safeguard oneself is not the same as an adult lacking mental capacity. For example, a person may have relevant mental capacity, but also have physical limitations that restrict their ability to implement actions to safeguard themselves. Capacity applies to both decision-making and the implementation of decisions. A person can have the capacity to make a particular decision but, through illness or infirmity, may not have the physical capacity to implement that decision.”

Practitioners must therefore take a person’s overall circumstance into account, and take great care, before determining whether or not an adult is genuinely able to take and implement decisions about safeguarding themselves.

Assessing capacity in complex situations

As already outlined above, assessment of capacity can at times be challenging and complex. For example, in situations where:

• there is self-neglect
• capacity fluctuates
• there is alcohol or drug misuse
• there is homelessness, especially multiple exclusion homelessness (see section on homelessness)
• there are concerns about coercion, for example in the context of domestic abuse, modern slavery or trafficking, or criminal and sexual exploitation
• there is a history of trauma (past or present) and/or adverse childhood experiences.

In these circumstances, there may be a number of different decisions that GPs and general practice clinicians my be faced with assessing capacity about such as:

• decisions about health issues including treatments
• decisions about referral to, and involvement of, other health professionals and teams such as mental health teams
• decisions about referral to, and involvement of, other agencies such as social care (Health and Social Care Trusts in Northern Ireland)
• decisions about making an adult safeguarding referral where it is established that the adult is an ‘adult at risk of harm’.

Below are some useful steps to consider in these situations in addition to following the mental capacity principles:

Assessing capacity in self-neglect

Assessing capacity in self-neglect is complex. A study from The University of Bristol on Mental Capacity, Self-Neglect, and Adult Safeguarding Practices: Evidence Synthesis and Agenda for Change explored what Safeguarding Adult Reviews (SARs) can tell us about how to improve adult safeguarding in England, with a focus on mental capacity and self-neglect. The key findings are relevant to all practice across the UK:

1. People experiencing self-neglect are more at risk if professionals fail to assess mental capacity.
   1. Misinterpretation of the Mental Capacity Act 2005 led to mental capacity assessments not being carried out, even when professionals observed concerning events, such as service-users disengaging with service provision, making significant unwise decisions, and/or having diagnoses which may have impacted upon their decision-making.
   2. Mental capacity assessments were often not recorded in writing and often lacked detail and clarity about who carried out the assessment and its outcome.
2. Safeguarding processes failed to protect people with capacity.
   1. Professionals sometimes used capacity to justify not intervening in cases of probable self-neglect, therefore leaving people at considerable risk.
   2. Promoting autonomy and supporting protection should not be mutually exclusive but balanced to best serve people experiencing self-neglect.
3. Assessments lacked nuance and scope.
   1. Professionals appeared to have given little consideration to long-term impacts of trauma on cognition, interpersonal relationships, and people feeling overwhelmed in moments of crisis, and the possible implications for mental capacity.
   2. Consideration of the long-term impacts of substance misuse and addiction on decision-making was limited.
   3. Assessments lacked a thorough consideration of executive capacity.
   4. Self-neglect may develop through a series of ‘non-decisions’. Simplistic notions of capacity and choice may have limited applicability where people are reproducing the only lifestyle they know. People may be encouraged or discouraged from accepting support because of features of their relationships with professionals. Professionals may empower individuals by informing them of a variety of appropriate options for meeting their self-care needs, or conversely decrease the person’s motivation to engage by failing to offer personalised support.
   5. Professionals were noted to lack confidence in assessing capacity. In a number of cases some professionals incorrectly believed assessment of capacity not to be their responsibility.

References

• GMC. Mental capacity. 2024.
• 39 Essex Chambers. Mental Capacity Guidance Note: Assessment and Recording of Capacity. 2023.
• 39 Essex Chambers. Mental Capacity guidance note: Relevant information for different categories of decision. 2024.
• 39 Essex Chambers. Mental Capasity Resources.
• Social Care Institute for Excellence. Mental Capacity Act 2005 at a glance. Updated 2022.
• University of Bristol. Mental Capacity, Self-Neglect, and Adult Safeguarding Practices: Evidence Synthesis and Agenda for Change. 
• Atkins E.  THE CAPACITY TO ACT ……?  Opening the door for people with hidden disabilities and differences. 2023.
  
• Center on the Developing Child, Harvard University. Executive Function & Self-Regulation. 
  
• Local Government Association. Adult safeguarding and homelessness: experience informed practice. 2021.
• Scottish Government. A dult Support and Protection (Scotland) Act 2007: Code of Practice. 2022.
  

Giving medication covertly

Medication given covertly is medication given without the adult’s knowledge or consent, e.g. hidden in food or drink. Adults should not be given medication covertly unless they have been assessed as lacking the mental capacity to makes decisions about their health or medication.

When a person has mental capacity to make the decision about whether to take a medication, they have the right to refuse that medication. They have this right, even if that refusal appears ill-judged to staff or family members who are caring for them.

Covert administration is only likely to be necessary or appropriate where:

• a person actively refuses their medication and
• that person is assessed not to have the capacity to understand the consequences of their refusal, and
• the medication is deemed essential to the person’s health and wellbeing.

Covert administration must be the least restrictive option after trying all other options. It is important to try and understand why the person is refusing to take their medication.

Organisations, such as care homes, should have a process in place for giving medication covertly. This process should include:

• mental capacity assessment
• best interests meeting
• keeping records
• making a plan
• regular reviews.

There are a number of different people and professionals who may be needed in the decision to give medicines covertly when an adult lacks the capacity to make decisions about their medication:

• care staff
• the prescriber
• the pharmacist
• a lasting power of attorney for health and welfare
• IMCA – Independent Mental Capacity Advocate.

References

• NICE. Giving medicines covertly. A quick guide for care home managers and home care managers providing medicines support.
• CQC. Covert administration of medicines. Updated 2022.