Julian Sheather: Safeguarding adults—respecting freedom, maximising welfare

I was in Bromley recently at an adult safeguarding conference. It was in some respects a melancholy day. We heard about Brent Martin, a 23 year-old with learning disabilities and a mental disorder beaten to death by members of a gang who temporarily befriended him, though largely for access to his benefits. He had been in psychiatric care since 16 and was discharged three months before he was killed. The proximate cause was a five pound bet on a 16 year old being able to knock him out with a single punch. We heard a lot about “hate crime,” where attacks are motivated at least in part by the victim’s membership of a particular social group. Being black, being disabled, even being a “goth” were enough to make people targets. We were also given a copy of The little book of big scams. I have grown accustomed to the phishing emails that drop with tedious regularity into my inbox. I had no idea quite how ingenious the fraudsters had become. It reminded me of something VS Naipaul said about our capacity to see human beings as prey. It also reminded me how easy it is, viewed in a certain light, to fall out of love with our kind.

I am determined though that this will not be a lamentation. There was an interesting talk by Gary Fitzgerald, the eloquent director of Action on Elder Abuse. At the heart of safeguarding lies an apparent tension between a concern for the welfare of vulnerable adults and the obligation to respect their freedom. Legally the hinge on which decisions turn is the Mental Capacity Act. Where adults lack capacity, welfare oriented decisions can be made in their best interests. Where they retain capacity, they are at liberty to direct their own lives. One of the big challenges for safeguarding arises where adults retain capacity but their decisions seem less than voluntary. What to do about the young woman with mild learning disabilities who happily shares her benefits among her “friends” but who, a few days in, cannot afford to feed herself? What about the elderly man whose niece skims a few pounds every week from his shopping money but who is loathe to confront her because there will be no one to do his shopping?

Decisions about mental capacity are binary. In relation to a specific decision the adult either has, or does not have capacity. Life seldom lends itself to such neatness. Fitzgerald made an interesting distinction between capacity and capability. Capacity refers to the cognitive processes of decision making. Capability refers to the actual ability to do things, not just to make choices but to realise them. It follows that an adult may have the capacity to make the decision but her capability can be fatally undermined by circumstances. Fitzgerald made it clear that while incapacity can provide the legal authority to make welfare oriented decisions, where capabilities are under threat, legal remedy is harder to come by. I have blogged here before about the interesting work done by Lord Justice Munby and others reviving the inherent jurisdiction of the High Court. But this requires court proceedings.  For Fitzgerald, where capabilities are undermined what is required is empowerment, not protection. Empowerment involves supporting vulnerable adults to help them realise their own choices.

Adult safeguarding is fiercely complex. The range of people it involves—the “client group”—is potentially enormous. The requirement for interdisciplinary working can lead to procedural opacity and the possibility that people will fall between a very large number of stalls. Legal uncertainty can also lead to defensive practice of various kinds. It is also dogged by terribly imperfect analogies with child protection and the ever present threat of unwarranted paternalism. For someone as hands off as me, another problem is the language of safeguarding. It is rich in abstract nouns. Take “empowerment.” Although universally regarded as a good thing, it can be terribly difficult to grab hold of its meaning.

I ran a seminar in the afternoon. I took the tension between welfare and respect for autonomy as a starting point. Most participants were in the thick of it. They told me some of their stories. They talked about young people whose “carers” confiscated their bank cards and helped themselves to their benefits. I heard about a young woman – the only one in the family not to have a dependency, the only one at work—and how she was buckling. But I also heard about the work these professionals were doing. About the support they were offering. And I began to understand a little bit about empowerment. I learnt that it meant listening and talking. It meant giving advice, offering alternatives, providing information. It meant trying to understand where they were as people and finding out what could make things a little bit better, a little bit safer, a little bit freer for them. No it wasn’t easy. Failure was commonplace. But it could help. Lives could go just that little bit better. And so although one part of me came away sickened by those who see human beings as prey, another, almost reconciled to my kind, was struck by just how hard some people are willing to work in order to ensure the lives of even a few people are just that little bit easier.

Julian Sheather is ethics manager, BMA. The views he expresses in his blog posts are entirely his own.