Anyone with passing familiarity with the judgments of the Court of Protection will recognise the title of this post. It was first said by Munby J (as he then was) in Local Authority X v MM & Anor (No. 1) (2007), a case about sexual relationships. The passage in full reads:
A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?
The statement appears in a number of subsequent notable judgments, including G v E. Bodey J cited it in A Local Authority v A & Anor when he refused to authorise the use of contraception against a woman’s wishes, commenting that ‘any step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life’. It was also cited by counsel for the local authority in A Local Authority v DL, which Sir Nicholas Wall took to reflect ‘The local authority’s awareness of the conflict between its duties under ECHR Article 8 and its duty to protect Mr. and Mrs L from harm’. In CC v KK Baker J returned to this passage again (this time via a speech of Munby LJ’s which I can’t find – can anyone link to a copy?), and went on to warn of the ‘risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective’. His conclusion that Mrs KK had the mental capacity to decide to return to live in her own home was, in part, influenced by recognition ‘that different individuals may give different weight to different factors’, and that some people might attach greater importance to being in familiar surroundings and ’emotional security’ than physical security. Baker J returned to the passage again in A Local Authority v TZ (No. 2) (2014) when authorising arrangements regarding a man with autism who had the capacity to consent to sex but where there were concerns about his ability to assess the risks of prospective sexual partners.
In the end, if M remains confined in a home she is entitled to ask “What for?” The only answer that could be provided at the moment is “To keep you alive as long as possible.” In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable.
And it resonates with Eldergill DJ’s comments in Westminster City Council v Sykes (2014):
Risk cannot be avoided of course. All decisions that involve deprivation of liberty or compulsion involve balancing competing risks, of which the risk that others may suffer physical harm is but one. For example, detention and compulsory care or treatment may risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation; and the unwanted side-effects of treatment.
Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.
These statements are important, because they represent the reasoning of judges who (in most cases) come to a conclusion that an outcome which presents significant risks to a person’s physical safety is still in their ‘best interests’, because it more closely accords with what the person wants. For readers interested in the CRPD, they represent the ‘old paradigm’ of best interests inching closer to an approach based on a person’s will and preferences, that embraces a ‘dignity of risk’ (I’ll write about the CRPD and safeguarding another time, it’s not quite as straightforward as some caricatures would paint it). Of course, these statements do not appear in all cases, and in many cases physical security does appear to be the paramount consideration. But they do show growing judicial willingness to adopt risky outcomes if they feel it will better promote a person’s emotional wellbeing and better reflect the person’s own wishes and values.
I was thinking about these statements today because the Health and Social Care Information Centre has just published a report of a pilot study on the development of an ‘Adult Safeguarding Outcomes Measure’ – in other words, a measure looking at how those subject to safeguarding referrals felt about it afterwards. Because the report is actually about the development of the measure, the findings of what people said are buried quite deep in the report but are well worth looking at. As a general caveat, 35% of potential participants were excluded because the ‘lacked capacity’ (I’ll gripe another time about ‘capacity’ inflation – the way ‘mental capacity’ is used to refer to all sorts of difficulties that have little to do with the legal sense of the term).
The general finding, among those who were considered to be an adult ‘at risk’ and who had been subject to a ‘safeguarding’ intervention, was that most felt safer afterwards and most were broadly positive about the intervention. But there were two interesting subgroups that resonate with the spirit of Munby P’s rhetorical question. Of the adults at risk who were interviewed, 12% reported feeling safer after the safeguarding intervention, but were not happy with its outcome. Meanwhile, 35% of the adults who did not feel safer after the intervention, were still happy with its outcome.
I wondered whether the pattern of responses regarding those who were excluded because of “capacity” issues (whatever that means) would be similar or different. In the pilot study, where people were not asked directly, advocates were sometimes asked on their behalf. Interesting, the views of advocates who responded were fairly similar – that sometimes they felt a person was safer but it was not a happy outcome, or that sometimes people were still unsafe but happy.
These are a minority of respondents – most people were happy being safer – but they are certainly a significant minority and worth thinking about. How can this subgroup be identified by safeguarding practitioners, by courts? Is it as straightforward as simply listening to the person and asking what they want? Unfortunately, these types of statistical studies won’t tell us that, and we have no idea in most court cases what happened to people like Mrs KK and Manuela Sykes after they went home (or indeed, if they went home). Nor do we know what happened to those where interventions promoting physical security over what a person says they want were authorised.
In 2008-9 the Department of Health ran a consultation on the No Secrets safeguarding guidance. Although the consultation involved hundreds of people with learning disabilities and people who had been detained under the Mental Health Act 1983, one of its (acknowledged) limitations was ‘it did not include people who lacked capacity to consider these issues and to communicate their views’. The report of the consultation drew four key conclusions:
- Safeguarding must be built on empowerment – or listening to the victim’s voice. Without this, safeguarding is experienced as safety at the expense of other qualities of life, such as self determination and the right to family life.
- Everyone must help to empower individuals but safeguarding decisions should be taken by the individual concerned. People wanted help with options, information and support. However, they wanted to retain control and make their own choices.
- Safeguarding adults is not like child protection. Adults do not want to be treated like children and do not want a system that was designed for children.
- The participation/representation of people who lack capacity is also important.
Once again, we see the message that people do not necessarily prioritise physical safety over other factors, like self-determination and family life. The report concludes that adult safeguarding has two very different client groups – those with, and those without, ‘mental capacity’. For the latter group, rights to self-determination are replaced by rights to have a ‘voice’, to ‘participate’, to be ‘consulted’. However, there were signs of a shift towards an approach resonant of Munby’s rhetorical question, for example housing staff ‘wanted to move away from the focus on ‘how can we keep you safe’to ‘how can we help you live the life you want in the way you want.’
Recently, ADASS and the LGA have been working with various councils on a project called Making Safeguarding Personal (MSP). There’s a lot of good stuff in the guidance. For example the following statement suggests that a ‘personalised’ approach to safeguarding adults who ‘lack capacity’ will not necessarily prioritise physical safety and will involve finding out what the person themselves wants to achieve:
The skills that staff need to facilitate conversations with people to find out what they want to achieve and, from their perspective, how best to go about this. Engaging with best interests decision making in this context to achieve this where a person lacks capacity perhaps through advocates/best interests assessors.
These comments, along with others in the No Secrets consultation about working with people’s ‘life story’, resonate with Lady Hale’s statements in Aintree about seeing things from the person’s own point of view, and also recall Bach and Kerzner’s ‘narrative’ approach to legal capacity.
Despite some good stuff in No Secrets, the MSP guidance and, indeed, with the new safeguarding guidance under the Care Act 2014, one of my bugbears is the vacuum of clear government or professional guidance about what should happen when a proposed safeguarding intervention conflicts with what a person wants, if the practitioners conclude that the person lacks ‘mental capacity’. According to a string of 2010 Court of Protection cases including G v E, Munby LJ’s obiter remarks in A Local Authority v A (A Child) & Anor, and Jackson J’s ratio in Neary (and the recent series of post-Neary cases on the same theme), if a serious conflict arises, the local authority must go to court and cannot rely upon the MCA or even the DoLS. But I have yet to see a clear statement of this in any government guidance – including the MCA’s two Codes of Practice and the new safeguarding guidance. Which makes it understandable – albeit not forgivable – if local authorities have often ridden roughshod over people’s rights in the name of safeguarding.
What is interesting me at the moment – and I’d appreciate any thoughts anyone has on this theme – is what was happening on the ground before 2010? Did the statement by Munby LJ in A Local Authority v A (A Child) that the MCA does not provide authority to control a person against their wishes or those of their family (affirmed by Jackson J in Neary) resonate with what safeguarding and other social care practitioners believed on the ground? Or did they take the statement that ‘capacity is key’ in No Secrets as a blank cheque to intervene in whatever way they felt was appropriate in a persons ‘best interests’, without a court application? In Neary, Jackson J traces this principle back to Magna Carta, but I wonder – was this a belief that was embedded in safeguarding teams before 2010? Is it one that is embedded in safeguarding teams now? Were these statements of existing common law, or were they in fact statements of new law presented as old law, as the courts tried to reign in what was coming to be seen as a potentially abusive mandate to protect people from neglect and abuse?
A wider question is why are these statements not clearly reflected in the government’s guidance? These types of questions – about what to do when a person does not want to be ‘safeguarded’ – have been asked since at least the Law Society’s discussion document of 1989 (Decision-making and Mental Incapacity: A Discussion Document – I’m afraid I can’t find any links to this). The response of the Law Commission was to propose a statutory public law protection framework, but these proposals were not taken up by the government when it consulted on what became the MCA. However, some of the powers proposed are mentioned in s17 MCA, and it might be argued that the courts have helped themselves to others (such as powers of entry) in cases like The Mental Health Trust & Ors v DD & Anor (2014), where the court authorised forcible entry and restraint in the home of a woman on the basis that ‘there is reason to believe that P lacks capacity’ (s48 MCA) in order to carry out a mental capacity assessment. The government did consult on powers of entry more recently and there was overwhelming public opposition, despite considerable (but not universal) professional support.
Safeguarding is not always a zero sum game between protection and ’empowerment’, and as documents like MSP so clearly show, very often empowering a person is the best way to safeguard them. But there are cases where ‘making someone safer’ risks making them miserable. Cases where a person does not want to be made safer. These situations place safeguarding practitioners in a very difficult situation. If they fail to take steps to protect people, they risk criticism by colleagues, professional bodies, in serious case reviews, or by family members or the public or even coroners who do not sympathise with Munby’s rhetorical question. Surely some day soon we will see negligence claims, or even human rights claims inspired by Rabone, for authorities who have chosen to prioritise what a person wants over keeping them safe. The outcome of such claims will be pivotal for the future of adult safeguarding. Yet at the same time, Munby’s question resonates – what is the point of keeping people safe if they feel miserable, disempowered, if they long for family life or home, or freedom, however many risks are attached to that? One of the key reasons for going to court might simply be that – as Jackson J put it in Re M – where ‘There are risks either way… responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.’
And if the law is unclear for practitioners, then it must be even worse for those who are subject to a ‘safeguarding’ intervention which they – or their families – object to. The law in this area is very far from the test laid down in Sunday Times v UK for interventions that interfere with Convention rights which must be prescribed by law. The average citizen could not easily ‘foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.
Here’s my theory about why there are no clear statements from governments of the limits of what can be done in the name of safeguarding: squeamishness. These situations, where a person does not want to be kept safe, represent one of the sharpest edges of the relationship between private citizens and the state. This edge can be at least as sharp as detention under the Mental Health Act – perhaps more so if safeguarding interventions result in limitations on contact with a person’s friends and family. And these cases are extremely, extremely, controversial. You only have to look at the ways the newspapers cover these types of cases in the Court of Protection, to look at the responses to the powers of entry consultation, to see why governments might be quite happy to let local authorities and judges take all the criticism, whilst dancing around these issues when making law or publishing guidance. They, we, want it both ways: everyone must have their freedom and nobody must get hurt or die. But we cannot have it both ways. Somebody, somewhere, decides. And these are not comfortable decisions to make.