1. Introduction

The term ‘inherent jurisdiction’ refers to the High Court’s ability to make declarations, orders and grant injunctions in situations where there is no statutory power to intervene to protect an adult. It has been described by courts as a ‘safety net’ as it allows them to intervene where there is no other legal avenue available. It can be used in situations not covered by existing legislation, such as the Mental Capacity Act 2005 (MCA), Mental Health Act 1983 or legislation in relation to domestic abuse, coercive and controlling behaviour or forced marriage.

However, it cannot be used in a way that would directly contradict any legislation.

It can be used to fill a gap where there is no existing applicable legislation, but not as a way of getting around or circumventing existing legislation.

In all cases, it is necessary to first consider what, if any, other legislative mechanisms exist. It is only after considering whether any existing legislation covers the position. that it can be clear whether there is a gap to be filled, and whether recourse to the inherent jurisdiction is necessary.

Any legal professions or organisation with legal standing can bring an application to the High Court. This includes local authorities, NHS trusts and Integrated Care Boards.

2. Scope of the Inherent Jurisdiction

The inherent jurisdiction can be used to fill a legal ‘gap’ and so can cover a variety of scenarios.  By its very nature, there is no legislation setting out the precise remit of the inherent jurisdiction, and it is instead developed on an ongoing basis by way of case law.  For this reason, legal advice must be obtained as soon as possible in circumstances where it is thought that an application to the High Court may be required.

One of the main areas where the inherent jurisdiction has been used in recent cases is in situations where an adult is not able to freely make their own decisions, but this is not as a result of mental incapacity. In these situations, the courts have used the term ‘capacitous but vulnerable’ which means the person has mental capacity but is vulnerable in some other way.

For example, an adult may be subject to external influences, such as coercion or undue influence from another person, which limits their ability to make their own decisions freely. The adult’s decision-making is therefore impaired, and they are unable to make their own choice freely, but this is because of coercion or undue influence, rather than because of a disturbance or impairment in the functioning of their mind or brain, as required by the MCA (see Mental Capacity chapter).

Case law has established that a person may have physical or cognitive impairments but those will not necessarily, on their own, mean that they are ‘at risk’ so as to make use of the inherent jurisdiction necessary.  On the other hand, a person may have no physical or cognitive impairment but is still ‘at risk’ as a direct result of the coercion or abuse from another person, and so may come within the remit of the inherent jurisdiction.  A family member may use influence over another family member, but for the situation to come within the inherent jurisdiction, the influence must be ‘undue’ or ‘coercive’ so the adult is incapable of making their own decisions.

The inherent jurisdiction may also be used in situations where action is required to safeguard an adult from risks from themselves, such as self-neglect, where the adult has mental capacity and so action under legislation is not an option, but the risks they cause to themselves are so great that court intervention is necessary (see Self Neglect Guidance).

It may also be used where an adult lacks capacity but the situation is not covered by the Mental Capacity Act, for example where the adult falls into a legislative ‘gap’ between the Mental Health Act 1983 and the Mental Capacity Act 2005.

3. Types of Order

Before making any order, the court must be satisfied that it is necessary and proportionate to do so.  The order must be reasonable and proportionate to the circumstances and not go beyond the minimum necessary to safeguard the adult.

Orders may or may not be time-limited.

Orders may require someone to take specified actions (such as to allow access to an adult) or may set out what someone must not do (such as to threaten or assault an adult).

Types of orders which may be made under the inherent jurisdiction include (but are not limited to) orders:

• allowing social care professionals to gain access to adults where there are safeguarding concerns but where, for example, another person is denying or restricting access to the person about whom there are concerns and there are no grounds for an order under existing legislation;
• freezing assets to prevent the adult’s money or property being wrongly transferred or spent;
• recovering money and / or property belonging to the adult which has already been disposed of;
• overturning a decision about the transfer of money belonging to the adult which has already been made.

Orders made under the inherent jurisdiction can be directed either at the adult or at the person who is coercing them.

For example, orders have been made against the person coercing the adult preventing them from:

• refusing access to the adult by health and social care professionals;
• not allowing the adult to have contact with family and / or friends;
• behaving in an aggressive and / or confrontational manner to health and social care staff;
• interfering in the provision of care and support to the adult;
• assaulting or threatening the adult;
• seeking to persuade or coerce the adult into transferring ownership of property (such as money or their home);
• trying to persuade or coerce the adult into moving into a care home or nursing home;
• behaving in a way towards the adult which is degrading or coercive, such as having unreasonable restrictions on which rooms in the house the adult is allowed in, or punishing the adult, particularly if those punishments are degrading or otherwise humiliating.

Case law has established that, in general, it is better for orders to be made in relation to the person coercing the adult, rather than directed at the adult themself. This is because such an order is likely to be less of a restriction for the adult, and so more proportionate and more likely to promote their independence and empowerment.

Where an order is requested which is directed at the adult, the High Court* has stated that, in order to satisfy the requirements for the order to be both necessary and proportionate, the applicant should be able to demonstrate (with supporting evidence) that they have considered:

• whether the adult will be informed about the order;
• whether the adult is likely to understand the purpose of the order;
• whether the adult will appreciate the impact if the order is breached or broken.

*Redcar & Cleveland Borough Council v PR [2019] EWHC 2305 (para. 46)

See Appendix 1: Case Law Regarding Mental Health and Inherent Jurisdiction and Appendix 2: Deprivation of Liberty safeguards and inherent jurisdiction.

4. Legal Summary of the Inherent Jurisdiction

The inherent jurisdiction is the High Court’s jurisdiction or power to protect ‘incompetent’ and also ‘vulnerable’ adults. Usually this is where a person has mental capacity, and therefore the MCA cannot be used. It is a jurisdiction that can only be used by the High Court, not the Court of Protection (CoP).

The legal standard is set out by Munby J, Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), at 76-83

McFarlane LJ in A Local Authority v DL & Ors [2012] EWCA Civ 253 at paras 54, 62 described it as:

“The High Court has jurisdiction over those who, if not incapacitated, are reasonably believed to be i) under constraint, or ii) subject to coercion or undue influence, or iii) other disabling circumstance: “some other reason deprived of capacity to make relevant decision, disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent”:

4.1 Basic principles

To be able to use the inherent jurisdiction, the proposed intervention must be necessary and proportionate.

The Court will first attempt to use inherent jurisdiction to assist creative decision-making, rather than taking a decision for the adult: LBL v RYJ and VJ [2010] EWHC 2665 (COP) “facilitative, rather than dictatorial, approach of the court”;

A Local Authority v DL & Ors [2012] EWCA Civ 253 at para 68 per McFarlane LJ noted that inherent jurisdiction is not limited solely to affording a vulnerable adult a temporary safe space’ within which to make a decision free from any alleged source of undue influence. The Court may, in appropriate cases, impose long-term injunctive relief to protect the vulnerable adult.

5. Practice Guidance for using the Inherent Jurisdiction

5.1 Documents required

The relevant legal team will make the application to the High Court using a Part 8 claim form and will include:

• draft order;
• witness statement;
• source documents.

5.2 Grounds / what to show

• Explanation of how the court has jurisdiction; for example coercion; undue influence; other disabling influences.
• That the proposed intervention is necessary.
• That the proposed intervention is proportionate; this should include the alternative options which have been considered.

5.3 Legal process

• The application is filed in the Family Division of the High Court.

Points to consider / discuss include:

• Does the application need to be lodged without notice being given to those who are alleged to be controlling the person?
• Is it urgent?
• If it is not urgent, should the application be started with a request for directions (which is when the court gives instructions to the parties on how they are to prepare the case) ?
• Are there any interim measures required?
• Does there need to be any fact-finding hearing?

 5.4 Where a person has borderline mental capacity

If mental capacity is uncertain at the start of the proceedings, there are two options:

1. Commence in High Court and explain why;
2. Commence in the CoP and transfer to the High Court if required.

If urgent action is required, it is best to start proceedings in the High Court.

6.Further Reading

6.1 Relevant chapters

Mental Capacity

6.2 Relevant information

Guidance Note: Using the Inherent Jurisdiction in Relation to Adults (39 Essex Chambers)

Gaining access to an adult suspected to be at risk of neglect or abuse (SCIE)

Appendix 1: Case Law Regarding Mental Health and Inherent Jurisdiction

Redcar & Cleveland Borough Council v PR [2019] EWHC 2305 (para. 46)

The facts centred around a capacitous (person with mental capacity) but vulnerable 32-year-old woman who was living with her parents. Her mental health deteriorated, and she was admitted to hospital. While she was in hospital, she made allegations about her father. The woman’s mental health improved, and when she was well enough to be discharged from hospital, the local authority became concerned that she was planning to return home to live with her parents. The authority issued an application under the inherent jurisdiction for protective orders.

In its judgment at paragraph 46, Cobb J observed that “before a local authority made an application under the court’s inherent jurisdiction, which was designed to regulate the conduct of a subject by way of injunction, particularly where mental illness or vulnerability was an issue, it should be able to demonstrate (and support with evidence) that it had appropriately considered:

• whether the person was likely to understand the purpose of the injunction;
• (ii) would receive knowledge of the injunction; and
• (iii) would appreciate the effect of breach of that injunction. If the answer to any of these questions was in the negative, the injunction was likely to be ineffectual and should not be applied for or granted since no consequences could flow from the breach”.

There is not yet clear case-law as to the extent to which orders may be made under the inherent jurisdiction which would have the effect of depriving the adult of their liberty.

Appendix 2: Deprivation of Liberty Safeguards and Inherent Jurisdiction

The use of the inherent jurisdiction to authorise a deprivation of liberty must comply with article 5 of the European Convention on Human Rights and is illustrated in the case of NHS Trust v Dr A [2013] COPLR 605.

The facts involved an Iranian doctor, Dr A, who went on hunger strike to recover his passport that had been confiscated by the UK Borders Agency following his failed claims for asylum. He suffered from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether to accept nourishment. It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. This treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. A legislative gap had occurred; as he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder.

2.1 Issues and judgement

The legal question was whether the High Court had power to make order under inherent jurisdiction to authorise forcible feeding of an  incapacitated adult where a deprivation of liberty could not be authorised under MCA 2005 section16(A)(1): “If a person is in ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. It was not disputed that subjecting Dr A to forcible feeding amounted to a deprivation of liberty, but the difficulty was identifying how that deprivation was to be authorised in law.

The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as being in Dr A’s best interests (paragraphs 94 & 96) In NHS Trust v Dr A, the Courts firmly established that the inherent jurisdiction was available to provide a remedy particularly, when none was available under the comprehensive MCA 2005 legislation that would meet the care of such a mentally incapacitated adult.

“[96] In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Art 5. Unless and until this court or another court clarifies the interpretation of s 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under s 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA and (b) involves the deprivation of a patient’s liberty.”

This decision illustrates how the inherent jurisdiction is a flexible legal tool to plug legislative gaps. It can not only protect adults who fall outside the scope of the MCA but can also be raised for those persons who need to be deprived of liberty and fall between the provisions of the MHA and MCA.

The local authority must take all reasonable steps to protect the movable property of an adult with care and support needs who is being cared for away from home, in a hospital or in accommodation such as a care home, and who cannot arrange to protect their property themselves; this could include their pets as well as their personal property (for example, private possessions and furniture). The local authority must act where it believes that if it does not take action there is a risk of movable property being lost or damaged.

Protecting property may include arranging for pets to be looked after when securing premises for someone who is having their care and support needs provided away from home in a care home or hospital, and who has not been able to make other arrangements for the care of their home or pets.
In order to protect movable property in these circumstances the local authority may enter the property, at reasonable times, with the adult’s consent, ideally in writing; but reasonable prior notice to enter should be given.

If the adult lacks the capacity to give consent to the local authority entering the property, consent should be sought from a person authorised under the Mental Capacity Act 2005 (MCA) to give consent on the adult’s behalf. This might be:

• an attorney (also known as a donee with lasting power of attorney) that is someone appointed under the MCA who has the legal right to make decisions (for example decisions about their care and support) within the scope of their authority on behalf of the person (the donor) who made the power of attorney;
• a deputy (also known as a court appointed deputy) that is a person appointed by the Court of Protection under the MCA, to take specified decisions on behalf of someone who lacks capacity to take those decisions themselves;
• the Court of Protection.

If the adult in question lacks capacity and no other person has been authorised to act on their behalf, the local authority must act in the best interests of the adult (see Mental Capacity).

If a third party tries to stop an authorised entry into the home they will be committing an offence, unless they can give a good reason for why they are obstructing the local authority in protecting the adult’s property. Committing such an offence could, on conviction by a Magistrates’ Court, lead to the person being fined. If a local authority intends to enter a home then it must give written authorisation to an officer of the council and that person must be able to produce it if asked for.

The local authority has no power to apply for a warrant to carry out their duties to protect property. If the Court decides the obstruction is reasonable then the local authority would have no power to force entry.

This duty on the local authority lasts until the adult in question returns home or makes their own arrangements for the protection of property or until there is no other danger of loss or damage to property; whichever happens first. Often a one off event is required such as the re-homing of pets or ensuring that the property is secured.

If costs are incurred or if there are ongoing costs the local authority can recover any reasonable expenses they incur in protecting property under this duty from the adult whose property they are protecting.

1. Introduction

This chapter provides information on legal options for gaining access to adults who are experiencing or at risk of abuse or neglect, where access is restricted or denied. Section 47 of the National Assistance Act 1948 which gave a local authority power to remove a person in need of care from home has been replaced by the Care Act 2014.

2. Safeguarding Enquiries

Local authorities have a duty to make, or cause to be made, enquiries in cases where they reasonably suspect that an adult with care and support needs is experiencing or is at risk of abuse or neglect, and as a result of those needs, is unable to protect themselves from the actual or potential risk.

This duty does not provide for a power of entry, or right of unimpeded access to the adult who is subject to such an enquiry. There are, however, a range of existing legal powers which are available to gain access, where required.

Whether legal intervention is required, and if so which powers would be the most suitable, will always depend on the individual circumstances of the case. The local authority can apply to the courts or seek assistance from the police to gain access in certain circumstances.

3. Difficulty in Gaining Access

Reasons why it may be difficult to gain access to a person who is the subject of an adult safeguarding enquiry may include:

1. access to the premises denied by a person who is present, usually a family member, friend or informal carer;
2. access to the premises is given, but it is not possible to speak to the adult alone because a family member, friend or informal carer insists on being present;
3. the adult themselves (whether or not they are unduly under the influence of the person present) is insisting that the person is present. In such cases if the adult is known to have mental capacity, the issue of access in terms of the law does not apply.

Where access is refused, it should not automatically lead to consideration of the use of legal powers. Attempts should first be made to resolve the situation via negotiation and a professional relationship based on trust; sensitive handling by skilled practitioners may satisfactorily resolve the situation.

If negotiation is not successful, the local authority must consider whether denial of access is unreasonable and whether the concerns justify intervention. This should involve a discussion with the social worker, manager and legal department regarding the level of safeguarding concern, perceived risks, and possible outcomes of both intervening and not intervening. If it is decided that using legal powers is justified, it should be decided which powers would be the most appropriate.

All such discussions and considerations should be fully recorded including objective facts and professional assessment so that the basis of all decision making is clearly based on objective fact, assessment of risk and proportionate action (see Case Recording chapter).

Unlawful intervention could not only have a detrimental effect on the adult concerned, and their carer / family, but also lead to judicial criticism and / or liability to compensation.

4. Proportionality

Where it is decided that the use of any power to gain entry is justified, it should be exercised proportionately, in relation to the risk and the level of safeguarding concern for the adult.

An emergency situation involving significant risk may justify the use of legal powers – such as police entry to save life and limb – where there is insufficient time to negotiate gaining access.

The principle of the least restrictive option helps to ensure that interventions are necessary and proportionate.

In relation to a person who lacks mental capacity, consideration must be given to achieving their best interests using an approach which is least restrictive of the person’s rights and freedom of action (see Independent Mental Capacity Advocates and Independent Mental Health Advocates).

5. Gaining Access

The SCIE guidance for social workers Gaining access to an adult suspected to be at risk of neglect or abuse notes the following legal powers may be considered by the local authority to gain access to the person experiencing, or at risk of, abuse or neglect. The following legal powers may be relevant, depending on the circumstances:

• If the person has been assessed as lacking mental capacity in relation to a matter relating to their welfare: the Court of Protection has the power to make an order under Section 16(2) of the MCA relating to a person’s welfare, which makes the decision on that person’s behalf to allow access to an adult lacking capacity. The Court can also appoint a deputy to make welfare decisions for that person.
• If an adult with mental capacity, at risk of abuse or neglect, is impeded from exercising that capacity freely: the inherent jurisdiction of the High Court enables the Court to make an order (which could relate to gaining access to an adult) or any remedy which the Court considers appropriate (for example, to facilitate the taking of a decision by an adult with mental capacity free from undue influence, duress or coercion) in any circumstances not governed by specific legislation or rules.
• If there is concern about a mentally disordered person: Section 115 of the MHA provides the power for an approved mental health professional (approved by a local authority under the MHA) to enter and inspect any premises (other than a hospital) in which a person with a mental disorder is living, on production of proper authenticated identification, if the professional has reasonable cause to believe that the person is not receiving proper care.
• If a person is believed to have a mental disorder, and there is suspected neglect or abuse: Section 135(1) of the MHA, a magistrates court has the power, on application from an approved mental health professional, to allow the police to enter premises using force if necessary and if thought fit, to remove a person to a place of safety if there is reasonable cause to suspect that they are suffering from a mental disorder and (a) have been, or are being, ill-treated, neglected or not kept under proper control, or (b) are living alone and unable to care for themselves.
• Power of the police to enter and arrest a person for an indictable offence: Section 17(1)(b) of PACE.
• Common law power of the police to prevent, and deal with, a breach of the peace. Although breach of the peace is not an indictable offence the police have a common law power to enter and arrest a person to prevent a breach of the peace.
• If there is risk to life and limb: Section 17(1)(e) of PACE gives the police the power to enter premises without a warrant in order to save life and limb or prevent serious damage to property. This represents an emergency situation and it is for the police to exercise the power).

1. Introduction

Everyone is entitled to be protected by the law and have access to justice. Although the local authority has the lead in making enquiries in adult safeguarding cases, where criminal activity is suspected involving the police as soon as possible is likely to be beneficial in many cases.

Behaviour which amounts to abuse and neglect also often constitute specific criminal offences under various legislation, for example:

• physical or sexual assault or rape;
• psychological abuse or hate crime;
• wilful neglect;
• unlawful imprisonment;
• theft and fraud;
• certain forms of discrimination.

See Safeguarding Case Studies

For the purpose of a court trial, a witness is deemed to be competent if they can understand the questions and respond in a way that the court can understand. Police have a duty to assist witnesses who are vulnerable and intimidated.

2. Special Measures

A range of special measures are available to aid gathering and giving of evidence by vulnerable and intimidated witnesses.

These should be considered from the onset of a police investigation, and can include:

• an immediate referral from adult social care or other concerned agency
• discussion with the police will enable the police to establish whether a criminal act has been committed. This will give an opportunity to determine if, and at what stage, the police need to become involved further and undertake a criminal investigation;
• the police have powers to take specific protective actions, such as Domestic Violence Protection Orders (DVPO);
• as a higher standard of proof is required in criminal proceedings (‘beyond reasonable doubt’) than in disciplinary or regulatory proceedings (where the test is the balance of probabilities), so early contact with the police may help to  obtain evidence and witness statements;
• early involvement of the police helps to ensure that forensic evidence is not lost or contaminated;
• police officers need to have considerable skill in investigating and interviewing adults with different disabilities and communication needs, in order to prevent the adult being interviewed unnecessarily on other occasions. Research has found that sometimes evidence from victims and witnesses with learning disabilities is discounted. This may also apply to others such as people with dementia. It is crucial that reasonable adjustments are made and appropriate support given, so everyone can have equal access to justice;
• police investigations should be coordinated with health and social care enquiries but  may take priority. The local authority’s duty to ensure the wellbeing and safety of the person continues throughout a criminal investigation;
• appropriate support during the criminal justice process should be available from local organisations such as Victim Support and court preparation schemes;
• some witnesses will need protection from the accused or their associates (see Section 3, Adults Witnesses who are Vulnerable or Intimidated, below);
• the police may be able to arrange support for victims.

Special Measures were introduced in the Youth Justice and Criminal Evidence Act 1999 and include a range of interventions to support witnesses to give their best evidence and to help reduce anxiety when attending court. These include the use of screens around the witness box, the use of live (video) link or recorded evidence and the use of an intermediary to help witnesses understand the questions they are being asked and to give their answers accurately.

3. Adult Witnesses who are Vulnerable or Intimidated

Adults who are deemed as vulnerable witnesses have:

• a mental health disorder;
• a learning disability; and / or
• a physical disability.

These witnesses are only eligible for special measures if the quality of the evidence that will be given by them is likely to be diminished because of their disorder or disability.

Intimidated witnesses are those whose quality of evidence is likely to be diminished because of fear or distress. In deciding whether a witness comes into this category the court takes account of:

• the nature and alleged circumstances of the offence;
• the age of the witness;
• the social and cultural background and ethnic origins of the witness;
• the domestic and employment circumstances of the witness;
• any religious beliefs or political opinions of the witness;
• any behaviour towards the witness by the accused or third party.

Also coming into this category are:

• complainants in cases of sexual assault;
• witnesses to specified gun and knife offences;
• victims of and witnesses to domestic abuse, racially motivated crime, crime motivated by reasons relating to religion, homophobic crime, gang related violence and repeat victimisation;
• those who are older and frail;
• the families of murder victims.

Registered Intermediaries (RIs) help communicate with vulnerable witnesses during the criminal justice process.

As noted above, a criminal investigation by the police takes priority over all other enquiries.

However a multi-agency approach should be agreed, to ensure that the interests and personal wishes of the adult are considered throughout, even if the adult decides not  to provide any evidence or support a prosecution.

The welfare of the adult. and others including children, is paramount and requires continued risk assessment to ensure the outcome is in their interests and enhances their wellbeing.

If the adult has the mental capacity to make informed decisions about their safety and they do not want any action to be taken, this does not prevent information being shared with relevant colleagues. This enables all 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 available to them. This will also enable professionals to share decision making and risk management to ensure that decisions made are safe and valid. The adult should be informed of this action unless doing so would increase the risk of harm to them.

1. Introduction

There is increased complexity in service provision arrangements for adults with care and support needs when they occur across local authority borders. Difficulties may arise where funding or commissioning responsibilities are held by one authority, but concerns about potential abuse or neglect arise in another authority area.

The following terms are used in this chapter:

• Placing authority: the local authority or NHS body that has commissioned the service for an individual involved in a safeguarding adults allegation.
• Host authority: the local authority or NHS body in the area where the abuse occurred.

2.  Principles for Out of Area Safeguarding Adult Arrangements

The host authority should take overall responsibility for coordinating the safeguarding adults enquiry and ensure there is effective communication between all agencies and professionals involved in the case, including meetings held and planning for any required investigation.

The placing authority should:

• have a continuing duty of care to the adult that they have placed;
• participate in the investigation as required;
• ensure that the provider has arrangements and procedures in place in relation to safeguarding adults and how staff should respond to concerns, which should also link to the local (host) multi-agency safeguarding adults procedures. This should be a requisite of contracting arrangements. This should include the requirement to inform the host authority of any safeguarding concerns.

Authorities may negotiate certain arrangements, for example relating to another authority undertaking assessments, reviews, investigative activities. In such cases, the placing authority would maintain overall responsibility for the adult they placed. Reimbursement for such actions should be discussed and agreed between the authorities, as appropriate.

Providers of care and support services have rights and responsibilities, and also may be required to undertake their own investigations into an adult safeguarding concern. The host authority must ensure effective and timely communication with the provider throughout the investigation (see also Integration, Cooperation and Partnerships).

1. Making a Safeguarding Referral to the Local Authority

When an adult is experiencing, or at risk of abuse or neglect but there is no immediate risk of harm, the practitioner should follow their own local processes for raising concerns. This could either mean they contact the local authority safeguarding adults team themselves or they share their concerns with the safeguarding adults lead in their organisation, who will then make the referral to the local authority safeguarding adults team.

However, if there is concern that immediate action is required or there is an urgent risk, a referral should be made to the South Tyneside Safeguarding Adults Out of Hours Team without delay (see Local Contacts). Where it is suspected a crime has been committed the police should also be contacted.

Details of all actions taken should be recorded on the adult’s case file / record.

2. Taking Immediate Action to Protect an Adult

If the Out of Hours Team receives a referral which indicates there is an immediate or urgent risk to the adult, the worker receiving the referral must take all steps necessary to protect the adult. This includes arranging emergency medical treatment, contacting the police (by telephoning 999) and taking any other action to ensure the adult is safe.

3. Case Recording and Handover

The Out of Hours Team worker should record details of the concerns on the adult’s electronic social care record. The worker will pass all necessary information to the relevant team in adult social care before the end of their shift. If the adult is already known to the local authority, the out of hours worker will notify their allocated worker.

See also Case Recording.

1. Introduction

The Care and Support Statutory Guidance advises that the first priority in safeguarding should always be to ensure the safety and wellbeing of the adult.

Making Safeguarding Personal is a person centred approach which means that adults are encouraged to make their own decisions and are provided with support and information to empower them to do so. This approach recognises that adults have a general right to independence, choice and self-determination including control over information about themselves. Staff should strive to deliver effective safeguarding consistently with both of the above principles. They should ensure that the adult has accessible information so that the adult can make informed choices about safeguarding: what it means, risks and benefits and possible consequences. Staff will need to clearly define the various options to help support them to make a decision about their safety.

2. Giving Consent

Adults may not give their consent to the sharing of safeguarding information for a number of reasons. For example, they may be unduly influenced, coerced or intimidated by another person, they may be frightened of reprisals, they may fear losing control, they may not trust social services or other partners or they may fear that their relationship with the abuser will be damaged. Reassurance and appropriate support may help to change their view on whether it is best to share information. Staff should consider the following and:

• explore the reasons for the adult’s objections – what are they worried about?
• explain the concern and why you think it is important to share the information;
• tell the adult with whom you may be sharing the information with and why;
• explain the benefits, to them or others, of sharing information – could they access better help and support?
• discuss the consequences of not sharing the information – could someone come to harm?
• reassure them that the information will not be shared with anyone who does not need to know;
• reassure them that they are not alone and that support is available to them.

3. Overriding Refusal to give Consent

If, after this, the adult refuses intervention to support them with a safeguarding concern, or requests that information about them is not shared with other safeguarding partners, in general, their wishes should be respected. However, there are a number of circumstances where staff can reasonably override such a decision, including:

• the person is unable to understand relevant information; retain the information; make a decision based on the information given;
• unable to communicate a choice on the matter because he / she is unconscious;
• emergency or life threatening situations may warrant the sharing of relevant information with the emergency services without consent;
• other people are, or may be, at risk, including children;
• sharing the information could prevent a serious crime;
• a serious crime has been committed;
• the risk is unreasonably high and meets the criteria for a multi-agency risk assessment conference referral (see Multi-Agency Risk Assessment Conference chapter);
• staff are implicated;
• there is a court order or other legal authority for taking action without consent.

In such circumstances, it is important to keep a careful record of the decision making process. Staff should seek advice from managers in line with their organisation’s policy before overriding the adult’s decision, except in emergency situations. Managers should make decisions based on whether there is an overriding reason which makes it necessary to take action without consent and whether doing so is proportionate because there is no less intrusive way of ensuring safety. Legal advice should be sought where appropriate. If the decision is to take action without the adult’s consent, then unless it is unsafe to do so, the adult should be informed that this is being done and of the reasons why.  This is particularly important in light of the new legal right patients now have to know why their health information is being shared without their consent.

4. Supporting the Adult

If none of the above apply and the decision is not to share safeguarding information with other safeguarding partners, or not to intervene to safeguard the adult:

• support the adult to weigh up the risks and benefits of different options;
• ensure they are aware of the level of risk and possible outcomes;
• offer to arrange for them to have an advocate or peer supporter;
• offer support for them to build confidence and self-esteem if necessary;
• agree on and record the level of risk the adult is taking;
• record the reasons for not intervening or sharing information;
• regularly review the situation;
• try to build trust to enable the adult to better protect themselves.

5. Considering Risk

It is important that the risk of sharing information is also considered. In some cases, such as domestic abuse or hate crime, it is possible that sharing information could increase the risk to the adult. Safeguarding partners need to work jointly to provide advice, support and protection to the adult in order to minimise the possibility of worsening the relationship or triggering retribution from the abuser.

6. Consent and Mental Capacity

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 chapter).

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 chapter).

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).

7. Consent to Information Sharing

See also South Tyneside Multi Agency Information Sharing Agreement

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.

8. Consent to Treatment

See also Reference Guide to Consent for Examination or Treatment (Department of Health and Social Care)

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.