Current safeguarding framework
One of the major criticisms of the current adult safeguarding framework is that it does not have a firm statutory footing in terms of defining duties and processes, in marked contrast to child protection.
The starting point is the Department of Health guidance entitled “No Secrets” which is statutory guidance that local authorities, as the adult protection lead agencies, are expected to follow. However, the problem is that each local authority with adult protection responsibilities does things differently, purporting to implement their own local safeguarding policies, although in practice these 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 what is described as “institutional abuse”. Local authorities often now 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.
Arising from the lack of clarity around what is abuse, real uncertainties exist about who is responsible for what when a safeguarding alert is raised. This took on a national focus with the recent case of Winterbourne View in Bristol where CQC did not act on information supplied by a whistleblower but rather took a passive approach in light of the fact that the lead local authority in the area, South Gloucestershire, was in the process of investigating the issues as a safeguarding matter, albeit that significant delays were encountered in moving the investigation forward.
Impact of a safeguarding incident
What is clear is that the number of safeguarding investigations has increased dramatically over recent years, in part a response to the perceived withdrawal of the regulator from investigating such concerns.
There can be no doubt that safeguarding investigations can and do have a significant impact on providers. In an immediate sense, safeguarding often leads to contract suspensions and, in extreme cases, contract terminations. There is also reputational damage, possible regulatory or criminal action and wider cost issues, particularly where members of staff are suspended for long periods.
It is imperative that providers take an active involvement in the process rather than a passive one, 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 be encouraging the police to move the investigation forward to avoid unnecessary delay.
Where the police are not investigating potential offending, the local authority will have the lead investigating role. As far as possible, providers should seek a collaborative approach with local authorities although this can be frustrated where a local authority takes an adversarial approach to the process, viewing the provider as the culprit.
What is essential is that the provider sits down and works out a strategic approach to dealing with the safeguarding issues, taking legal and other advice to inform decision-making. There may be occasions where a placatory stance is required, and others where a more robust stance is needed.
One of the primary problems is the ill-defined remit of safeguarding leading to best practice type issues being dealt with as part of the safeguarding process when they should really be matters for contract monitoring and/or CQC regulation.
A further concern is the common failure on the part of local authorities to particularise and disclose the safeguarding allegations at the outset. This can lead to confusion and wandering investigations with new issues being introduced as the process drags on. Providers are often frustrated by the lack of transparency on the part of the local authority and an inability to investigate matters in an objective and considered manner. Frequently at Ridouts we come across investigations where the local authority identifies with the complainant from the very beginning rather than approaching the matter dispassionately and neutrally.
Timescales for completion of investigations are frequently not met, with long delays in even 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.
What providers should do
- 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 any staff need to be suspended or disciplined. 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 legal advice to support decisions involving the suspension and disciplining of staff and safeguarding generally
So far as possible, we urge our clients to try to assume a collaborative approach with the statutory agencies, assuming a responsibility for investigating the issues in partnership with the local authority. However, if the local authority adopts an adversarial approach then a more robust approach may be required to ensure the provider is not excluded from the process and pushed from pillar to post. It will be important to look at the local safeguarding procedure and ensure the local authority is held to account in following it.
Ultimately, the provider is responsible for the running of the particular service and should take control. It will be important to investigate and find out the facts. The important thing is not to feel pressurised 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. As noted above, it may be necessary to suspend staff or take early disciplinary action if the facts clearly show abuse perpetrated by staff members. 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 ill-considered findings by submitting evidence in rebuttal. If the local authority is not prepared to back down 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 Future: The Law Commission recommendations
Recently the Law Commission issued a set of recommendations around adult protection which if implemented would place it 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. It is hoped 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 provider 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 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 they should be 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.
Providers should be regarded as equal partners to other relevant agencies
All too often, providers are excluded from adult safeguarding 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.