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Mental Capacity and Referral as a Victim of Human Trafficking

Jennifer Blair
David C. Gardner

This paper sets out an area where the Home Office’s Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland v.2.0 (“the statutory guidance”) requires amendment.

The statutory guidance purports to cover situations where an adult lacks mental capacity for referral into the National Referral Mechanism (“the NRM”). The NRM is the process used to identify survivors of human trafficking and modern slavery; it provides a gateway to a range of support provisions, in line with the Council of Europe ‘Convention on Action against Trafficking in Human Beings’.

The statutory guidance includes sections on capacity and informed consent. Section 5.30 notes that “Adult victims need to give informed consent to enter the NRM”. The statutory guidance also states in section 5.28 that “where an individual does not have the capacity to consent, a best interests decision should be taken”

The fundamental points to be made here are that a best interests decision does not equate to informed consent and that the statutory guidance appears to suggest that best interests decisions can be made without defining who should take that decision and without clarifying the role or authority of the Court of Protection in the process.

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