Current Safeguarding Framework
The current adult safeguarding framework does not include consolidated legislation which defines
safeguarding duties and processes. As a result, real uncertainties exist as to who is responsible when safeguarding alerts are raised.
The Department of Health’s No Secrets document, published in 2000, provides guidance to local agencies which have a responsibility to investigate and take action when a vulnerable adult is believed to be suffering abuse. It offers a structure and content for the development of local inter-agency policies, procedures and joint protocols which will draw on good practice nationally and locally. The problem is that local authorities with adult protection responsibilities will often purport to implement their own local safeguarding policies based on No Secrets, which in practice are often not adhered to.
The picture is further complicated by the fact that the definition of abuse has been widened over recent years to include “institutional abuse”. As a result, local authorities will often investigate broad ranging care issues which are not linked to named service users on the basis that such service failings can amount to institutional abuse.
Impact of safeguarding investigations
There is no doubt that safeguarding investigations can have significant ramifications for providers.
Safeguarding often leads to contract suspensions and, in extreme cases, contract terminations.
Providers can also suffer reputational damage and possible regulatory or criminal action. Investigations will often have wider cost implications, particularly where members of staff are suspended for long periods.
It is therefore imperative that providers take an active involvement in the safeguarding process, unless there is an active police investigation in which case the provider has to have due regard to the criminal process.
However, even then, the provider should encourage the police to move the investigation forward to avoid unnecessary delay.
Where the police are not investigating potential offending, the local authority will take the lead investigating role. Local authorities should investigate matters in a timely, objective and considered manner. There are a number of common failures on the part of local authorities which providers should be aware of:
Local authorities regularly fail to particularise and disclose safeguarding allegations at the outset of investigations. The introduction of new issues can lead to confusion. The ill-defined remit of safeguarding often leads to best practice issues being dealt with as part of the safeguarding process, instead of being dealt with under contract monitoring and/or CQC regulation.
Providers are often frustrated by the apparent lack of objectivity on the part of local authorities. Frequently at Ridouts we come across investigations where the local authority identifies with the complainant from the beginning rather than approaching the matter dispassionately and neutrally.
Timescales for completion of investigations are also regularly not met and there can be long delays in starting investigations. Equally, there can be a lack of co-ordination between the various participating agencies and differences of opinion and emphasis. For example, CQC may accept care planning and risk assessments in a care home, only for the local authority to say that it is not acceptable.
The role of providers
Due to the problems that can arise during safeguarding investigations, providers need to engage with the safeguarding process where possible. We help our clients to:
- Secure early and full disclosure of the allegations
- Insist on a firm timetable for investigation and reporting back at a final case conference
- Consider whether it is necessary to suspend staff or take early disciplinary action if the facts clearly show there has been abuse perpetrated by staff members. In this context it will be necessary to also consider whether the Independent Safeguarding Authority needs to be notified of any conduct which harmed a service user or placed a service user at risk of harm
- Obtain specialist employment law advice to support decisions involving the suspension and disciplining of staff and safeguarding generally
In all investigations, it is advisable for providers to look at the local safeguarding procedure and ensure that the local authority is following it. Local authorities need to be made accountable for their actions.
So far as possible, we urge our clients to assume a collaborative approach with the statutory agencies,assuming a responsibility for investigating the issues in partnership with the local authority. If the local authority adopts an adversarial approach, a more robust approach may be required to ensure the provider is not excluded from the process.
Ultimately, the provider is responsible for the running of their service and should take control. It will be important to investigate and find out the facts. Providers should not feel pressured into providing an answer on the spot to the local authority or other participants. Take enough time as is needed to gather evidence and obtain expert advice as required. Alternatively, if the conclusion is that there is no substance to the complaint, and that it may be malicious, that needs to be conveyed emphatically to the local authority.
It may be necessary in some cases to secure legal representation for service users if the safeguarding impacts in any way on individual contracts, or the overall continuity of the service. It will also be important to have effective media management in circumstances where media involvement is anticipated or in train.
Challenging safeguarding reports
A provider should not accept safeguarding findings if they are ill-founded. It is important to challenge any unsubstantiated findings by submitting evidence in rebuttal. If the local authority is not prepared to review its findings, it may be necessary to make a formal complaint, which can go up as far as the Ombudsman if the matters are not resolved satisfactorily.
The provider needs to sit down and work out a strategic approach to dealing with safeguarding issues, taking legal and other advice to support their decision-making.