If the Law Commission’s recommendations are implemented, the role of adult protection will be put on a statutory footing. The three key recommendations are that local authorities will have a statutory duty regarding adult protection, there will be a duty to investigate cases in defined circumstances and there will be a statutory duty for stakeholders to co-operate with one another.
Regulations would set out the procedure for investigations. Since it is anticipated that a Code of Practice would underpin regulations under any new Act, it is likely that the Code would cover adult protection as well as assessments and care delivery.
Whilst some providers may be concerned about local authorities being granted statutory powers associated with adult protection, there are a range of possible benefits. Many providers may have found there to be an arbitrary, even Kafkaesque, element to adult protection in some cases.
Placing the role in a statutory context may help to address that. Local authorities will have clear guidance about how to carry out their adult protection functions and, crucially, there will be a clear legal framework against which authorities could be judged.
No doubt the draft regulations and Code of Practice will be subject to consultation before they are finalised and implemented. There are a number of issues which providers and providers associations may wish to raise in any such exercise.
- The focus of investigations should be to identify and manage current risk, rather than to allocate fault.
Currently, many safeguarding investigations are preoccupied with making findings as to whether abuse took place and by whom. Such a process can become adversarial which is at best unhelpful and can be counter-productive. Providers will undoubtedly have more to contribute to investigations if they are genuinely regarded as partners rather than potential abusers. Since the purpose of adult protection investigations is to protect adults, it is important that the focus shifts from allocating fault to assessing and managing risk.
- Strict time lines should be adhered to in all but the most exceptional cases.
The Law Commission noted that this had been a concern for some respondents to its discussion paper. We are aware of one case where a series of safeguarding investigations has been continuing for three years and some of the allegations in date back at least five years. Such a drawn out process clearly achieves nothing. Adult protection investigations can lead to a great deal of stress and uncertainty for all concerned and it is important that they are conducted promptly. Again, it is important to recall the purpose of investigations is to protect adults. That can only be done effectively when investigations are prompt.
- 3. Providers should be regarded as equal partners to other relevant agencies.
All too often, providers are excluded from adult protection meetings, or parts of meetings, whilst other agencies discuss allegations. Again, such a course is counter-productive. Providers cannot begin to manage any real risks unless and until they are included in the process. Excluding service providers also risks adult protection investigations reaching fundamentally flawed conclusions. This issue, too, stems from an unfortunate tendency on the part of some local authorities to adopt an adversarial rather than a collaborative relationship with providers as regards adult protection.
Placing adult protection duties and procedures on a statutory footing offers a real opportunity to address some of these thorny issues. For the opportunity to be fully realised, it is vital that providers and their representative associations do their best to help shape the reforms by responding constructively to future consultation exercises.
