Incorporating Positive Risk Taking in Adult Social Care — Balancing Safety and Self-Determination
Positive risk taking is a concept in social care enabling individuals to experience new and exciting opportunities, develop new skills, and lead fulfilling lives. It involves embracing the inherent uncertainty of life and making informed decisions about taking on challenges, even if they carry a degree of risk. This approach to care is rooted in the principles of person-centered care and the belief that everyone has the right to control their own lives and make choices that best reflect their personal needs and desires.
I was just working on a submission on behalf of a client who decision maker deemed as lacking capacity to participate in a safeguarding enquiry. When researching, I am reminded of a famous quote from Munby J:
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? [1]
I then became quite interested in finding out the legal framework for the positive risk taking approach. Firstly, the principles of mental capacity under section 1 of the Mental Capacity Act 2005 [2] might be relevant, particularly the following provisions:
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Further, Human Rights Act 1998 [3] placed a duty upon persons acting in a public official capacity to have regard to the European Convention of Human Rights. It is likely that Article 8 right to respect for private and family life is engaged. In particular, consider the provision below:
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Finally, the Care Act 2014 [4] imposed a duty on Local Authority to promote wellbeing. The Act define the wellbeing principles in section 1(2) and I think this is a particularly useful starting point when considering the kind of care and support that an individual needs. The provisions are set out as follow:
(2) “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following —
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual’s contribution to society.
However, the concept of positive risk taking in social care is not without its challenges, particularly in terms of balancing the desire for independence and self-determination with the need for safety and protection. This is where the legal framework comes into play, as it provides the foundation for how social care providers can support individuals in taking risks while ensuring that their rights and safety are respected.
This is not a legal advice nor legal opinion. I appreciate any feedback and comments.
Citation
[1] Para 120, Local Authority X v MM & Anor (No 1) [2007] EWHC 2003 (Fam) (EWHC (Fam))
[2] Mental Capacity Act 2005 c 9
[3] Human Rights Act 1998 c 42
[4] Care Act 2014 c 23
Credit: This blog post was inspired by a discussion with ChatGPT, an AI language model developed by OpenAI.
Further Reading
“What Good Is It Making Someone Safer If It Merely Makes Them Miserable?” A Contested Hearing and Delayed Trial of Living at Home’ (Promoting Open Justice in the Court of Protection, 3 June 2022) https://openjusticecourtofprotection.org/2022/06/03/what-good-is-it-making-someone-safer-if-it-merely-makes-them-miserable-a-contested-hearing-and-delayed-trial-of-living-at-home/, accessed 8 February 2023
