Seeking consent to a report

The interests of the adult at risk must be the overriding consideration in making any decisions whether to seek consent prior to making a report. Practitioners, however, should aim to seek consent from the adult where possible. The reasons for this are that it is more likely to:

• lead to engagement in the safeguarding process and to effective outcomes;
• promote an effective working partnership with the adult.

It is important to engage adults in the process as early as possible to ensure their wishes and feelings are taken into consideration where possible and to avoid them becoming mere ‘objects of concern’.

Pointers for Practice: Seeking Consent

Making a report without consent

The adult at risk is sometimes the only source of information about what has happened to them. In some circumstances, practitioners may need to speak to an adult without the knowledge of a carer. Where a decision is made not to seek consent relevant circumstances for this decision must be recorded and could include:

• the possibility that the adult would be put at further risk;
• the possibility that an adult would be threatened or otherwise coerced into silence;
• a strong likelihood that important evidence would be destroyed/lost;
• if a carer or family member is identified as the alleged abuser;
• that the adult in question did not wish the carer to be involved at that stage;
• it is in the public interest.

Practitioners should discuss whether it is appropriate to seek consent from the adult with their agency's designated safeguarding person. (See local procedures for further information).

If, having taken account of the adult’s wishes, it is still considered that there is a need for a report their wishes may be over-ridden. In this situation:

• the reason for proceeding without consent must be recorded;
• social services should be informed that the adult has not given their permission;
• the adult should be informed by the referrer that a report has been made despite their wishes.

The General Data Protection Regulation (GDPR) gives individuals greater control over their own personal data. But it does not give them the right to prevent agencies sharing information when there are concerns about an adult at risk.

(For more information see: General Data Protection Regulation (GDPR) and relevant protocols)

Capacity of adults at risk to give consent

The consent of the adult at risk is a significant factor in deciding what action to take in response to a concern or allegation. Adults with care and support needs may be able to protect themselves from abuse, neglect or exploitation by others and are not inevitably unable to protect themselves because of their age, frailty or disability.

In some circumstances however, the ability of the adult to protect themselves may be affected by their needs for care and support. These needs may affect how far they are able to make and exercise informed choices free from pressure or duress.

The ability of adults to make informed choices can be affected by their mental capacity.

This describes the ability to make a specific decision. This includes the need to:

• understand the information relevant to the decision;
• retain the information long enough to make that decision;
• use or weigh the information to make a choice;
• communicate his/her decision (by any means whether by talking, sign language, or any residual ability such as blinking).

Mental capacity is specific to a particular decision at a particular time. This means a person may have capacity to make some decisions but not others or may be able to make decisions on some occasions but not others. In order to make a decision some adults at risk may require additional support such as advocacy, simplified explanations, visual aids and additional time. They are entitled in law to receive this support.

Fine professional judgements are required where an adult at risk is experiencing, or is at risk of abuse or neglect, and they have needs for care and support.

Consideration must be given to:

• mental capacity with regard to the 5 principles within the Mental Capacity Act;
• the likelihood of duress;
• the nature and effect of the needs.

Any act done, or decision made on behalf of a person who has been determined as not having capacity to make that decision, by law, should be done in their “best interests”. It is important to consult with others for their views on what is in the person’s best interest.

Any action that is taken should be proportionate to the risk of abuse.

Practitioners should always respect the adult’s personal wishes and autonomy, however, in some circumstances these wishes may be overridden including:

• the relevant partners’ duty to report;
• the adult to whom the concerns relate lacks the mental capacity to make specific decisions;
• if there is high risk to the health and/or safety of the individual;
• others, including children young people or other adults, may be at risk;
• a crime is suspected or may have been committed against the adult;
• the concerns relate to a failure in care, breach of regulation or professional code of conduct;
• if there is concern about organisational or institutional abuse or allegations against an employee or volunteer within the organisation.

Pointers for Practice: Assessing Mental Capacity