Managing safeguarding investigations – preserving your regulatory and reputational position – Caring Times October 2019

Safeguarding investigations can be incredibly stressful and difficult times for providers of health and social care services. Any allegations involving vulnerable people will always, and understandably, expose providers to intense scrutiny.

Such investigations are very difficult to manage and can lead to revelations that health and social care providers have abused those they look after. This can then cause the local authority to suspend further placements, and even remove residents from their care even before any allegation has been substantiated.

Whilst providing health and social care services, providers will have the need to make safeguarding referrals to the host local authority and may find that other parties also make referrals and allegations. These can lead to difficult, protracted and opaque safeguarding investigations being initiated by the relevant authority. Health and social care providers are often summonsed to meetings at short notice with little or no agenda, only to face a room filled with numerous stakeholders and a set of allegations not previously shared with them, leaving the provider feeling blindsided. Commissioners can impose suspensions of placements, remove their residents and even seek to cancel contracts.

Safeguarding investigations can quickly drain good morale and cause disruption to the home. Without adequate legal representation, health and social care providers can find themselves subject to investigations which are fundamentally unfair or which lead to devastating consequences. Reputations can be damaged too.

There can also be a regulatory impact, with the CQC involving themselves in matters or even conducting a focussed inspection in the areas relating to any allegation made.

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 further 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”.

Providers need to be sure that they are armed with all of the facts before they attend any safeguarding meeting. Only that will ensure that the provider has had the opportunity to gather all relevant information that will aid any investigation and have the most meaningful discussion possible with any investigating body.

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.

If you feel that an allegation is ill-founded or that the approach of the investigating body is concerning you the engage legal assistance. Providers are entitled to have legal representation during safeguarding meetings and this can help keep the process moving.