Positive Risk Taking, Personalisation, Safeguarding

and the Law

Michael Mandelstam, In Control conference, June 2010

1. Government statement, January 2010 (Phil Hope, Minister of State)

• Three key concepts in safeguarding: protection, justice and empowerment

• Balance is required• Personalisation is naturally associated with

empowerment, but cannot be at the expense of tilting away from protection and justice

Risk taking

• Risk taking: health and safety

• Risk taking leading to the possibility of safeguarding issues arising

• Continued risk taking in the face of safeguarding issues that have already arisen

Choice?

• Informed choice to take risks concerning health and safety?

• When does health and safety become safeguarding?

• Informed choice to be the victim of crime, e.g. financial – and for it not to be reported?

• When is choice informed?• Lack of capacity – but also undue influence,

duress, exploitation, “vulnerability”?

Seeing everybody as consumers in a market?

• Empowerment and risk-taking fit some contexts – others may be not

• Choice and empowerment for the older person, multiple pathology, physical and mental, crisis, relatives (if any) worn out?

• Abandoned by social care, neglected and abused by the NHS?

• The outlawed words: “care”, “looked after”, paternalism, vulnerability

2. Community care/health care legislation

• Community care legislation: assessment of need: NHS and Community Care Act 1990, Chronically Sick and Disabled Persons Act 1970 etc.

• “Fair access to care services” (FACS) guidance: critical, substantial, moderate or low need/risk

• “No Secrets” guidance• Carers’ legislation: Carers and Disabled Children

Act 2000 etc.• National Health Service Act 2006 (NHS services)

High quality and safe services and support

• “Government has an important role in the protection of members of the public from harm – before harm has happened and after it has happened. This includes ensuring that services and support are delivered in ways that are high quality and safe” (January 2010).

Community care: direct payments

• Health and Social Care Act 2001 (and Regs.)• Eligibility• Consent• Ability to manage (albeit with assistance)• Reasonable amount of money• Lack of capacity: pay instead “suitable person”

with rules and safeguards• Key issues: prescriptiveness, monitoring and

review

Personalisation

• Self assessment• Resource allocation• Unconventional use of money• Support brokerage• Direct payments or managed payments

Guidance on direct payments, (Department of Health 2009)

• “As a general principle, councils should avoid laying down health safety policies for individual direct payment recipients. Individual should accept that they have a responsibility for their own health and safety, including the assessment and management of risk”

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Independence, choice and risk (Department of Health 2007)

• “However, the local authority remains accountable for proper use of its public funds, and whilst the individual is entitled to live with a degree of risk, the local authority is not obliged to fund it”

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3. Common legal theme: proportionality

• Proportionality principle relevant to:• Negligence (reasonable standard of care),• Health and safety at work (reasonable

practicability), • Mental capacity (best interests, least

restrictiveness, restraint etc) • Human rights (article 8: justifications)

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Common law of negligence: will local authorities end up being sued?

• Duty of care (not always straightforward)• Breach of duty: lapse in reasonable standard

of care• Breach of duty causing harm• Weighing up of risks, benefits (& resources)• Protection by courts of LAs and NHS if failure

associated with statutory functions, policy or resources: duty of care may not exist

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Health and safety at work legislation

• Duty not to expose non-employees to risks to their health or safety, s.3 of Health and Safety at Work Act 1974

• So far as is “reasonably practicable”• Weighing up of risks, benefits, resources

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Mental Capacity Act 2005: key principles (s.1)

• Assumption of capacity• Assisting people to make decisions• Unwise decisions do not necessarily mean lack

of capacity• Best interests• Least restrictive intervention (and section 6:

restraint, to protect person from harm, and proportionate to risk)

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MCA 2005, s.5, acts: care or treatment: protection

- Reasonable steps taken to establish, and

reasonable belief in, lack of capacity – and that act is in best interests

- But no protection from civil or criminal liability resulting from negligence

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Human rights: European Convention

• Right not to be subjected to torture, or to inhuman or degrading treatment or punishment (article 3)

• Right not to be deprived of liberty unless certain category of person (including “unsound mind”) and according to procedures prescribed by law (hence Deprivation of Liberty Safeguards under MCA 2005) (article 5)

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Human rights:proportionality

• Article 8: right to respect for home, family and private life. Interference justified if:

• In accordance with law• Necessary in a democratic society• For specific purpose: protection of health,

prevention of crime, protection of rights and freedoms of others etc.

• Proportionality is key

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Wrapped up in cotton wool?

• “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 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 physical health and safety of the elderly and the vulnerable before everything else”.

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Cotton wool (2)

• “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”.

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Cotton wool (3)

• “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?” (Local Authority X v MM).

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