A useful distinction drawn by Surrey County Council’s Andy Butler in the only really worthwhile paper at the safeguarding adults conference on Friday was between the Mental Capacity Act (but it equally applies to other law) as involving prohibitions for which there are sanctions; permissions, which give you powers to do things and proctective responsibilities, which give you duties to safeguard people.

He then went on to make the point that it is not only your duty to make decisions about someone’s capacity under the Act, but you then have to go on and do something about what you decided. That is, if you decided someone has capacity, how are you going to empower them to do what they have the capacity to decide? And if you decide they have no capacity, you then have to set out to protect them actively, because if they have no capacity, they will need safeguarding.

So, if you think someone does not have capacity, and you are caring for them in some way (as a CNS visiting or in a hospice), it is your duty to monitor the use of deputyship: are they actually safeguarding the patient or are they still at risk from their carer or someone else in their lives? There is a duty not to make assumptions that everything is OK, but instead people should confirm and validate what is going on. He directed this at local authority staff, but of course any professional who is visiting or involved with a person without capacity would have such a pro-active duty.

It was also clear that you had a duty to deprive someone of their liberty if your professional, clinical assessment was that they needed this, but when you did so, you must apply the safeguards. The deprivation of liberty safeguards were not intended to prevent the use of restraint where this was necessary, they are safeguards to use when you need to do it.