Self Neglect

Right To Choose and Unwise Decisions

BSAB Webinar, 1st April 2015

Why Are We Here?

• The outcomes of 2 recent local Safeguarding Adults Reviews highlighting questions and gaps around local practice in Self Neglect and application of the Mental Capacity Act 2005.

• We want to inspire debate about these issues across Buckinghamshire!

• We all need to be accountable and take ownership, but at the same time respect and recognise someone's right to choose.

How do we do this?

The Care Act 2014 • This debate is particularly timely as

The Care Act 2014 (part 1) is implemented from today. • An article in Community Care headline was “Care Act has missed opportunity to tackle self-neglect”

Has it? • Or is it in how it is interpreted and used? • The Care Act 2014 sits along side the Human Rights Act

1998 and the Mental Capacity Act 2005 and has to interface with individuals right to choose enshrined within them

The Care Act 2015 and Self Neglect An Adult at Risk: Safeguarding duties apply to an adult who: • Has needs for care and support (whether or not the local authority is

meeting any of those needs) and: • Is experiencing, or at risk of, abuse or neglect; and • As a result of those care and support needs is unable to protect

themselves from either the risk of, or the experience of abuse or neglect (Care and Support Statutory Guidance issued under the Care Act 2014, Department of Health October 2014)

• Self-neglect can be seen as included within the safeguarding definitions in the above statutory guidance

• and “covers a wide range of behaviours: neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding”.

The Mental Capacity Act (MCA) and Self Neglect

1. A presumption of capacity – Every adult has the right to make his or her own decisions and must be assumed to have capacity unless it is proved otherwise.

2. Supporting Individuals to make their own decisions – A person must be given all practical help before anyone concludes that they cannot make their own decisions.

3. Unwise decisions – Just because an individual makes what might be seen as an unwise decision, they should NOT be treated as lacking capacity to make that decision.

4. Best interest – Anything done for or on behalf of a person without capacity must be done in their best interests.

5. Least restrictive – Anything done for or on behalf of a person without capacity should be the least restrictive of their basic rights and freedoms.

MCA Concerns Identified (1 of 3)

Gap Inconsistent implementation of the Mental Capacity Act, particularly in relation to reviewing capacity and specificity of decision required

Consequence Inadequate assessment of mental capacity and possible missed opportunities for intervention

MCA Concerns Identified (2 of 3)

Gap Lack of general awareness and specific knowledge around executive capacity and situational capacity

Consequence Inadequate or un-evidenced statements around mental capacity

MCA Concerns Identified (3 of 3)

Gap There is no clear position statement as to the local approach to self-neglect

Consequence This allows the issue of self-neglect to become diluted and, in some situations, for the existence of Mental Capacity to be used as a justification for inaction

The Care Act Guidance Vs. Article 8 of ECHR* ECHR

• Article 8: The right to respect for private and family life, home and correspondence

• Article 8 is strongly supportive of the principle of individual self-determination, including one’s own physical and psychological integrity, it refers to a right to respect (by the state) for one’s home, private and family life.

• Excessive intervention by the

state in self neglect not be consistent with this.

Care Act Guidance

(1) Where an adult refuses a needs assessment, the local authority concerned is not required to carry out the assessment (and section 9[1] does not apply in the adult’s case).

(2) But the local authority may not rely on subsection (1) (and so must carry out a needs assessment) if -

a) the adult lacks capacity to refuse the assessment and the authority is satisfied that carrying out the assessment would be in the adult’s best interests, or

b) the adult is experiencing, or is at risk of, abuse or neglect.

*European Convention on Human Rights

Capacity

• The relevant person DOES NOT have to prove they have capacity! They have capacity until proven and evidenced otherwise.

• It is the assessor’s responsibility to find the evidence that the person lacks the capacity to make that particular decision at that time, and document it

• The primary focus should be on empowerment of the individual’s rights and freedoms

The Mental Capacity Assessment?

Assessments for self-neglect should focus on:

• Personal care and hygiene • Condition of home environment • Activities for daily living (e.g. shopping) • Management of health conditions/needs • Management of finances • Reviewing the assessment when new decisions need

to be made

What Supports Best Practice? • Knowledge and application of the law • A real understanding of your own values and

how they influence your practice • An innovative approach to communication

and encouraging engagement • Professionals’ meetings – Multi Agency

effective Communication • Skilled Capacity Assessments

Self-neglect: The Debate

The Person’s Rights Vs.

Agencies’ Duties and Responsibilities

Question 1 of 4

Is self-neglect an unwise decision?

Question 2 of 4

Is self-neglect a form of abuse? Is it an Adult Safeguarding

concern?

Question 3 of 4

Can the rights of choice of the capacitated individual be seen as overriding the

‘duty of care’?

Question 4 of 4

Is the law in conflict with itself? Do the Care Act 2014,

the Mental Capacity Act 2005 (unwise decisions) and Article

8 of the ECHR conflict?

Scrutinise Your Organisation?

• Do the practice gaps identified exist in your organisation?

• Do you have a self neglect policy and procedure? If so, who knows about it?

• How would you balance someone's rights and choices with your duties and responsibilities?

• What happens now?