Risk Enablement and Human Rights

Post-it notes on a flipchart

Over the last few weeks I have been conducting consultation events across Scotland with independent sector providers of care at home and care home services for older people.

I have been undertaking these events as the project lead of the People as Partners project which is a Scottish Government funded project designed to build capacity within the independent sector to respond to the opportunities and challenges which self-directed support will bring. More details of our work can be found here.

One of the most frequent observations during our workshops has been the concern that people will potentially be more vulnerable to harm as a result of choosing one of the four SDS options. 

Indeed for many practitioners and families the relationship between adult protection/safeguarding and personalisation can appear a challenging one.

A major Department of Health consultation south of the border which examined their approach to adult safeguarding 'No Secrets' highlighted some of the issues, thus:

‘A balance needs to be established between empowerment and protection and between the rights for self-determination and the duty to ensure safety of people and safety of public money… We want to support people to be citizens and take risks that they understand empowerment in all aspects of life is a protective factor against abuse. We are looking for new approaches to safeguarding'

The same can be said of Scotland. The Regulations and Guidance speak about a 'proportionate response to risk. They quite rightly see risk as part and parcel of life, especially a life where an individual is exercising greater control and autonomy over their support and care. 

The Guidance and the SDS Act frequently speak about risk 'enablement' yet many professionals and individuals worry about how to balance enabling risk with their duties of protection and safeguarding. 

There are very real and important questions relating to safeguarding and self-directed support. Amongst them:

  • How do you enable people to have greater choice and control over their lives but not to be put at greater risk of abuse or harm?
  • How do you ensure that giving individuals control over their personal support budgets will not be open to abuse by others, whether family members or organisations?
  • How do you protect without suffocating?

Another English report had this to say:

‘The governing principle behind good approaches to choice and risk is that people have the right to live their lives to the full as long as that does not stop others from doing the same. Fear of supporting people to take reasonable risks in their daily lives can prevent them from doing the things that most people take for granted. What needs to be considered is the consequence of an action and the likelihood of any harm from it. By taking account of the benefits in terms of independence, well-being and choice, it should be possible for a person to have a support plan which enables them to manage identified risks and to live their lives in ways which best suit them. ’
Independence, choice and risk: a guide to best practice in supported decision making — DH May 2007

Good adult protection and safeguarding is about balancing risk. We all live within environments which are not risk neutral but we have developed the skills and tactics to minimise, control and live in the face of such risks. That is part and parcel of what good support should be.

Risk enablement is about proportionality. It’s about nurturing within those who might be more vulnerable the insights and abilities which enable us to live in the world. It’s about ensuring that as professionals we do not become any more risk averse and fearful of the consequences with self-directed support.

I would like to continue that discussion by suggesting a Scottish model which could be adapted for risk enablement.

At the heart of risk enablement is the exercise of fundamental human rights. 

The Scottish Human Rights Commission project Care About Rights? seeks to embed a human rights based approach to decision making within social care and health contexts. It has developed the use of the FAIR model in such contexts where there may be disagreement or challenge on a course of action or practice.

This model recognises that in any context there are different stakeholders and that each possesses a range of human rights which are held in relation with and to others. 

When a decision needs to be taken or an issue addressed then the FAIR model allows for the greatest degree of contribution and involvement, a recognition of the importance of exercising basic human rights and a consensual approach to reaching decisions on a way forward. 

In each situation one is encouraged to start by identifying who is involved, specifically who is the person at the centre of the concern. How do they feel? Are they being heard? Are decisions being taken with them or for them? In other words what are the Facts of the situation? 

Then one undertakes an Analysis of what rights might be impacted by a particular planned or current action. Are an individual's rights being restricted? Is that restriction justified and most importantly is that restriction proportionate or way over the top?  

Even if the restriction of rights is appropriate are there other ways of achieving the desired end without restricting someone's rights? This stage of the process involves the Identification of shared responsibilities in any context. This stage is action planning with all engaged through their active involvement in identifying solutions and the way forward. When that action is put into practice it is then Reviewed

If I can use the FAIR model briefly for risk and safeguarding - I would suggest it offers a person centred, individual approach to risk enablement which completely chimes with the underlying principles of the Self-directed Support Act.  One way in which it might be used could look like this:

My right to exercise choice is paramount but has to be exercised in recognition that others also have rights and duties. Included amongst those is the duty to ensure that I am safeguarded. The Facts need to be identified so everyone honestly expresses their fears, concerns and desires and aspirations over any proposed or planned restriction of autonomy or control. This is the opportunity for real control to be squarely in the hands of the supported person in dialogue with others. 

Then there needs to be an Analysis as to whether the proposed restrictions on an individual are allowable and a proportionate restriction of that person's autonomy and freedom. Is this overt interference, risk aversion or an appropriate meeting of a legitimate aim? 

Then it is up to everyone in dialogue to ensure that they Identify their shared responsibilities and are involved in developing an intervention that balances an individual's rights with the need to keep that person safe. Are there alternative and less intrusive safeguards that can be put in place? Is there a different solution which more adequately protects the human rights of all engaged? 

Then a critical step for effective risk enablement is the developing of a process of continuous person-centred Review, monitoring and evaluation in which the supported individual's rights are paramount. 

A lot more can be said about the strengths and weaknesses of FAIR as a model for collaborative decision making in order to foster risk enablement. Its beauty is that it is flexible and centred on the individual and the exercising of their rights. 

Self-directed support when it becomes implemented from next April offers thousands the opportunity to achieve greater independence by exercising choice and control. It would be unforgivable if we did not seek to develop risk enablement models to enable people to live the fullest possible lives. One such model with some potential is, I would argue, the FAIR model - have you others? 

More details on the Care About Rights project…