“An awful state”: Self-neglect and mental capacity

By Ian Brownhill, 17 January 2024

The description of a person being found in “an awful state” is one of the most common phrases than an adult social care lawyer will read. It is a description that has no legal meaning but is often a sanitised portrayal of someone who has been subject to significant neglect.

Whilst the neglect of a person by paid carers, or family members, tends to attract the most significant media attention, there are significant numbers of individuals who are self-neglecting.

What is self-neglect?

Self-neglect is not defined in the Care Act 2014 or the Mental Capacity Act 2005. Often, documents referring to self-neglect are focussed on either hoarding, or, substance misuse issues. However, issues in respect of self-neglect are much broader.

The definition in the statutory guidance which accompanies the Care Act is that self-neglect:  “covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding”. 

How significant is the issue?

In a national review of Safeguarding Adult Reviews, self-neglect was the most common category of abuse of all cases, featuring in 45% of such reviews. In 2023, Torbay and Devon’s Safeguarding Adults Board published a thematic review in respect of self-neglect. Within that review^[1],as a “Learning Theme”, the executive summary states (at 3.3):

Was mental capacity considered?  Mental capacity did not receive adequate attention. In several cases involving high-risk decision-making, no capacity assessments took place and no attention was paid to the possible loss of executive function, which on the evidence of the individuals’ behaviour (including long-term alcohol use) could well have been a feature. There was an over-reliance on assumptions of capacity and on the concept of lifestyle choice. It appears that staff struggle with application of the Mental Capacity Act 2005 in practice.

This is not an issue which was particular to practice in Devon. Rather, it is an issue which social care lawyers and safeguarding professionals are able to identify across the country. A review of the Open Justice Court of Protection Blog, provides some examples (e.g.  ‘Refusing to engage’: A first hearing).

Mental Capacity and self-neglect

There are three, commonly expressed, phrases around mental capacity and self-neglect which demonstrate a problem:

• “They won’t participate in the assessment so the presumption of capacity applies.”
• “They discharged themselves against medical advice, that was an unwise decision, there’s no evidence as to their capacity.”
• “They have no diagnosis, so there was no reason to assess their capacity.”

The presumption of capacity is designed to protect our autonomous decision-making ability. It is not intended as a shield for inaction. The fact that an individual who is self-neglecting is not engaging with professionals does not mean that those professionals have discharged their duties towards that individual.

A lack of mental health diagnosis often means that a person’s capacity to make a relevant decision won’t be assessed. Likewise, an unwillingness to engage in an assessment is treated as justifying a position that a person has capacity in respect of a particular decision. This is a fundamental misunderstanding as to how the law works:

First, we do not assess a person’s mental capacity to make a decision because of a diagnosis. Rather, it is necessary to consider whether there is something about a person’s decision-making (or lack of it) which causes an assessment to be necessary. That assessment of a person’s capacity will consider their functional ability to make decisions first (as per the decision of the Supreme Court in JB) and then move to consider, second, whether any functional deficit is caused by a disorder of the functioning of the mind or brain.

That disorder of the functioning of the mind or brain does not require a specific diagnosis. The wording of s.2(1) MCA 2005 itself does not require a formal diagnosis (for further discussion see the decision of MacDonald J in North Bristol NHS Trust v R [2023] EWCOP 5)

Second, the fact that a person will not, or cannot, engage in an assessment of their mental capacity does not necessarily mean that the person has capacity to make the relevant decision. The most robust capacity assessments do not rely just on what a person says during an assessment but on what they do, or have done in their lives. In Nottingham University Hospitals NHS Trust & Anor v RL & Ors [2023] EWCOP 22, Sir Jonathan Cohen was faced with a situation where P was described as being, “virtually stuporous and mute.” Despite this, clinicians and the Court were able to come to the conclusion that RL lacked capacity to make decisions as to his hydration and nutrition. 

Third, it must be recognised^[2] that there is a group of individuals who do not engage with professionals because they are prevented from doing so due to the control or constraint imposed by a third party, or, because they have been subject to indoctrination or threats. In these situations, proper consideration needs to be given to whether the inherent jurisdiction of the High Court should be invoked in order to give that person space to make their own decisions and engage in assessments.  

Self-neglect and powers of entry

A perennial problem in self-neglect cases is accessing the person who is not engaged with services but who is, apparently, living in difficult circumstances. 

Here, the law of England and the law of Wales diverge. Section 127 of the Social Services and Well-being (Wales) Act 2014 provides the Magistrates’ Court the ability, in Wales, to provide a power of entry if there is reasonable cause to suspect that there is an adult at risk in an address and entry is necessary to assess that person for safeguarding purposes.

There is no such power in the Care Act 2014. The lack of explicit power has led some professionals to the position that they must wait until a power may be used under the Mental Health Act 1983 (or alternatively by the police under PACE, or the Fire Service under the Fire and Rescue Services Act 2004). This is incorrect.

The Court of Protection can make orders which allow entry into a person’s home if there is evidence that the person lacks capacity in some respect and that such entry is in their best interests, for example to complete assessments, or provide assistance. 

An awful state

Some people will choose to live a lifestyle which does not accord with societal expectations or norms. Some people will choose not to access healthcare or comply with the advice of professionals with whom they come into contact. This is a facet of decision making, we all make unwise decisions sometimes: to skip the gym, miss a routine appointment or fail to eat our five-a-day. 

But some people are unable to make decisions about their care and support, or their medical treatment. Those people require best interests decisions to be made on their behalf to avoid significant harm. In cases where people may be significantly harmed it is important that it is robustly and legally established whether they are able to make their own decisions. If we do not do so, then there is an awful state of legal literacy. 

Ian Brownhill is a barrister at 39 Essex Chambers and a member of the Open Justice Court of Protection Project’s advisory team. He has blogged here before e.g. How we get there: Conveyance plans in the Court of Protection. He tweets @CounselTweets and threads @CounselThreads 

Footnotes

---

^[1] _{https://www.devonsafeguardingadultspartnership.org.uk/document/thematic-safeguarding-adults-review-self-neglect/}

^[2] _{You can listen to Ian speak to independent social worker, Mark Caulfield about this issue here https://www.39essex.com/information-hub/insight/everyones-business-episode-2-five-mistakes-safeguarding-adults}