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
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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
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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”
Michael Mandelstam 2010
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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”
Michael Mandelstam 2010
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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)
Michael Mandelstam 2010
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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
Michael Mandelstam 2010
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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
Michael Mandelstam 2010
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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)
Michael Mandelstam 2010
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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
Michael Mandelstam 2010
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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)
Michael Mandelstam 2010
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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
Michael Mandelstam 2010
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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”.
Michael Mandelstam 2010
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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”.
Michael Mandelstam 2010
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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).
Michael Mandelstam 2010
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