“What’s the point of making someone safe if in doing so you just make them miserable?”
Mr Justice Munby’s famous 2007 judgement in the case of MM and Local Authority X is well beloved of safeguarding commentators. Or rather, they quote just this one sentence of his 168-paragraph judgement.
This lack of context leaves me uneasy. This was a complex case involving the welfare of a young woman with a troubled history and a mix of mental illness and learning disability wishing to maintain a relationship with a man who has been physically abusive, manipulative and exploitative.
The full judgement considered a range of issues concerning the woman’s capacity in areas such as who she would have contact with, where and with whom she could live, whether she could marry, have children and consent to sex.
Ultimately, it clarifies the responsibilities of the local authority to take suitable action to protect the woman’s rights to a private life under Article 8 of the European Convention on Human Rights, in circumstances where other rights are being restricted in the interests of safeguarding her.
The judgement raised profound questions of human rights and public policy, and how to balance safety against wider aspects of personal welfare.
So I think that it is important to see the sentence within the context of the whole judgement or at least the whole paragraph, which reads: “A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630).
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 than others 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 the physical health and safety of the elderly and the vulnerable before everything else.
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.
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?”
So maybe the answer to Munby’s rhetorical question is to say: if someone lacks the mental capacity to make a decision, then for their greater good and safety, it may be justifiable to prevent them from doing something, even if in doing so you make them less happy.
But when you do this your decision needs to be balanced against a range of other considerations to do with their welfare, and you must always be aware of their wishes, whether or not they have capacity.
Good safeguarding decisions can be complex. They raise profound questions concerning individual rights, the capacity to make decisions, make mistakes and take risks, and the moral and legal duty of an organisation – or the state through its institutions – to protect the vulnerable from harm.
That is a pretty heavy responsibility, and to help people make the right decisions providers need a good safeguarding policy that gives proper guidance to staff.
They need appropriate training – particularly in the area of mental capacity – good management, and a culture that builds openness and transparency.
Mistakes should be seen as opportunities to learn and improve. The rights of the people we support must be respected, and their wishes should always be at the forefront of our thinking.
Intervention to safeguard and protect should be proportionate to the risk presented and sensitive to the need, where appropriate, for people to make their own decisions, even when that involves some risk.
That culture must also ensure involvement and empowerment, and must stress the importance of finding out the wishes of those who lack capacity.
As the independent chairman of the safeguarding panel at Dimensions, my role is to ask these questions. I must examine its culture and learn about its staff, the people it supports and their family and friends.
In so doing I can test just how seriously personalisation and the vital philosophy of “just enough support” is taken.
This is crucial because in this uncertain and risky world of safeguarding there is one thing that we can be sure about: without the right culture, good safeguarding can never happen.
In future blogs, I will look at some of these things in greater depth, and start a conversation about how things might improve still further.
In the meantime, I would like to commend Dimensions on the decision to appoint an independent chair to their safeguarding panel and to encourage others to do likewise.