Healthcare Business: Having a voice in safeguarding enquiries- Providers should know their rights

In April 2015, adult safeguarding for the first time was placed on a statutory footing under the Care Act 2014.  Although the Care Act has been described as the most important piece of social care legislation in 60 years, in many ways it was an opportunity lost in terms of establishing clear investigation processes in relation to safeguarding matters. Local authorities still set their own rules in relation to safeguarding investigations but even then frequently fail to adhere to their own procedures.  Providers can often feel excluded from the safeguarding process, being called in to meetings at little notice and with limited or no information in advance.

It is important that providers appreciate the precise statutory basis for safeguarding investigations to ensure that local authorities do not exceed their statutory remit and are held to account.

The key provision under the Care Act 2014 is Section 42.  This states that if a local authority has “reasonable cause to suspect” that an adult is experiencing or is at risk of experiencing abuse or neglect it is obliged to make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case.

The first point is that a section 42 investigation is not there to deal with issues relating to an adult that are no longer current; it addresses current safeguarding issues. At Ridouts, we come across safeguarding cases where local authorities purport to investigate historic issues under the section 42 duty. That cannot be right. The whole purpose of a section 42 investigation is to eliminate or reduce current risks of abuse or neglect in relation to identified individuals.

Safeguarding investigations can go on for many months and typically there is a distinct reluctance on the part of the Safeguarding Panel to conclude the process. However, in the absence of current concerns, the process should be brought to an end. If only historic issues remain, the decision to continue the process can be challenged as an abuse of the local authority’s powers and duties, reliance being placed on section 42 with its focus on current safeguarding issues affecting adults. If a local authority refuses to conclude the safeguarding process and ignores the provider, it may well be necessary to serve a pre-action protocol letter threatening judicial review. Such a letter is sent to the Chief Executive of the local authority and thus ensures that proper attention is given to the matter at a senior level.

A local authority may co-opt another body to assist it with enquiries but the statutory obligation in relation to safeguarding rests with the local authority. Often local authorities will talk about the “partnership” making decisions, referring to the other statutory agencies involved in the investigation, but the duty rests with the local authority. Very often a safeguarding investigation leads to an embargo on new placements under the local authority’s contract with the care provider concerned. In such cases, it will be necessary to look carefully at the circumstances to decide whether a challenge will be in relation to the exercise of the local authority’s public safeguarding functions, in which case judicial review is the appropriate course to take, or in respect of breach of contract which is a private law matter. In some cases, challenges can be brought in both public law regarding the exercise of a local authority’s safeguarding functions and private law under the contract. It can be highly technical and legal advice should be sought to establish the appropriate basis for challenging local authority decisions linked to safeguarding and contractual matters.

One additional issue in safeguarding is a frequent failure to give adequate disclosure of the allegations.  Providers should rely on the general rule of natural justice that a person should know the case against them and be given an opportunity to respond. This was highlighted in the case of Davis v West Sussex County Council [2012] EWHC 2152 (QB), before HHJ Mackie QC. At paragraph 62 of that Judgment, in setting out the rules of natural justice, HHJ Mackie QC referred to Kanda v Government of Malaya [1962] AC 322 337, in which the Privy Council held that “If the right to be heard is to be a real right which is worth anything, it must carry with it a right for the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct and contradict them”.

The Care and Support statutory guidance under the Care Act is also helpful on the disclosure issue, stating at paragraph 14.43, “Early sharing of information is the key to providing an effective response where there are emergency concerns.” Paragraph 14.222 amplifies this by stating that “Providers should be informed of any allegation against them or their staff and treated with courtesy and openness at all times. It is of critical importance that allegations are handled sensitively and in a timely way both to stop any abuse and neglect but also to ensure a fair and transparent process.”

In summary, safeguarding investigations should be about current issues rather than raking over the coals of the past.  Providers should expect to be treated courteously with “transparency, open-mindedness and timeliness [being] important features of fair and effective safeguarding enquiries.” [Paragraph 14.73 of the statutory guidance].  Sadly, safeguarding enquiries frequently fail to exhibit such laudable features, with the feeling instead that the issues have already been predetermined in closed meetings.  Providers should insist on being treated fairly when the subject of safeguarding enquiries. If that does not happen, providers should consider legal challenges as a means of ensuring their rights are upheld and the outcomes are the right ones, most importantly for the service users in their care.

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