Safeguarding and mental capacity in healthcare

Healthcare providers have legal duties to protect vulnerable adults from abuse and neglect, and to follow the Mental Capacity Act when caring for people who cannot make their own decisions.

Care Act safeguarding duties

The Care Act 2014 creates the statutory adult safeguarding framework for health and care providers in England only. In Wales the equivalent duties arise under the Social Services and Well-being (Wales) Act 2014, and in Scotland under the Adult Support and Protection (Scotland) Act 2007.

Care Act 2014 - Safeguarding Duties

The Care Act 2014 sets the statutory framework for safeguarding adults at risk of abuse or neglect in England. Safeguarding enquiries under section 42 are a local authority duty; providers must report concerns, cooperate with enquiries, and protect service users from abuse under Regulation 13 of the 2014 Regulated Activities Regulations. The Act introduced the wellbeing principle.

Safeguarding adults at risk

The Care Act defines an 'adult at risk' as someone aged 18 or over who:

Has needs for care and support (whether or not the authority is meeting any of those needs)
Is experiencing, or is at risk of, abuse or neglect
As a result of those needs is unable to protect themselves

Types of abuse and neglect

Physical abuse
Domestic violence or abuse
Sexual abuse
Psychological or emotional abuse
Financial or material abuse
Modern slavery
Discriminatory abuse
Organisational or institutional abuse
Neglect or acts of omission
Self-neglect

Safeguarding duties

Under section 42, the duty to make (or cause to be made) safeguarding enquiries sits with the local authority, not the provider. Providers must:

Have robust safeguarding policies and procedures
Report safeguarding concerns to the local authority
Cooperate with local authority enquiries and with safeguarding adults boards
Take protective measures when abuse is suspected
Safeguard service users from abuse and improper treatment under Regulation 13 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 — the directly enforceable provider duty

Making Safeguarding Personal

Making Safeguarding Personal is a sector-led programme (not a creation of the Act itself) promoting person-centred, outcomes-focused approaches where the adult's views, wishes, feelings and beliefs are central to safeguarding decisions.

Step 1: Develop comprehensive safeguarding policy aligned with local Safeguarding Adults Board procedures
Step 2: Appoint a designated safeguarding lead within your organisation
Step 3: Provide safeguarding training to all staff (minimum annually)
Step 4: Implement whistleblowing procedures for staff to raise concerns
Step 5: When abuse is suspected, report immediately to local authority safeguarding team
Step 6: Maintain detailed records of safeguarding concerns and actions taken
Step 7: Participate in safeguarding enquiries and multi-agency meetings
Step 8: Review safeguarding incidents to identify learning and improve practice

Mental Capacity Act 2005

The Mental Capacity Act provides the legal framework for making decisions for people who lack capacity:

Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a legal framework for acting and making decisions on behalf of adults who lack capacity to make particular decisions. It includes safeguards for people who lack capacity (Deprivation of Liberty Safeguards - DoLS).

The five statutory principles

Presumption of capacity: Every adult has the right to make decisions unless proven otherwise
Support to make decisions: All practicable help must be given before concluding someone lacks capacity
Unwise decisions: People have the right to make unwise decisions
Best interests: Decisions for people who lack capacity must be in their best interests
Least restrictive: Any intervention must be the least restrictive of the person's rights and freedom

Assessing capacity

Capacity is decision-specific and time-specific. A person lacks capacity if they cannot:

Understand information relevant to the decision
Retain that information
Use or weigh that information as part of decision-making
Communicate their decision

Best interests decisions

When making best interests decisions, you must:

Consider all relevant circumstances
Consider if the person will regain capacity
Involve the person as much as possible
Consider their past and present wishes, feelings, beliefs and values
Consult family, carers and attorneys/deputies
Consider less restrictive alternatives

Deprivation of Liberty Safeguards (DoLS)

DoLS apply to people in care homes and hospitals who lack capacity and are subject to continuous supervision and control, and are not free to leave. A standard authorisation must be sought from the local authority supervisory body, which must decide the request within 21 days. Where the deprivation needs to begin immediately, the care home or hospital can grant itself an urgent authorisation lasting up to 7 days (extendable once by up to a further 7 days) and must request a standard authorisation at the same time.

Liberty Protection Safeguards (LPS)

LPS were enacted by the Mental Capacity (Amendment) Act 2019 but are not in force: implementation was postponed indefinitely in April 2023, so DoLS remain the operative scheme. If implemented, LPS would extend to domestic settings and be arranged by responsible bodies rather than local authorities.

Step 1: Train all staff in MCA principles and capacity assessment
Step 2: Always presume capacity unless assessment demonstrates otherwise
Step 3: Document capacity assessments clearly, including decision-specific reasoning
Step 4: For people lacking capacity, hold best interests meetings involving family/advocates
Step 5: Identify situations that may constitute deprivation of liberty
Step 6: Request standard authorisation from the local authority supervisory body before the deprivation of liberty begins wherever possible
Step 7: Where the deprivation must begin urgently, grant an urgent authorisation (up to 7 days, extendable once by up to 7 days) and request a standard authorisation at the same time
Step 8: Review DoLS authorisations before expiry and reapply if restrictions continue
Step 9: Maintain DoLS register tracking applications, authorisations and expiry dates

Mental Capacity Act Code of Practice

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