Safeguarding: How can I manage a process that feels completely out of my control?

Safeguarding allegations are a hazard of the job when you work in health and social care.

At Ridouts we are approached regularly by providers who are overwhelmed, frustrated or simply confused about complex safeguarding investigations.

Processes to report and manage allegations and then fully investigate them are in place in order to protect vulnerable people. There are few that would argue that they are not necessary, but what happens when a provider is the subject of such an investigation and what can they do to ensure that this complex and often lengthy process is managed in such a way that has the least impact on the overall business?

Safeguarding investigations can be incredibly stressful and difficult times for providers. 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 conclusions that health and social care providers have abused those they look after. This can cause the local authority to suspend further placements, cancel contracts and remove residents from their care and sometimes do so 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.

Given the high stakes, it is advisable to consider instructing legal representation, particularly where authorities are not being open.  Providers are often summoned 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.  It is important that a provider know the allegations concerned so they can go prepared to a meeting, otherwise it can lead to protracted investigations.

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. An agenda should be requested along with sufficient time to gather and prepare any information that would aid the investigation. Only then will such a meeting have real meaning. Having a lawyer request this information (and then attend the meeting) goes a long way to making an investigation more efficient and effective and it may be that providers feel hesitant to make such requests as they feel they are already under scrutiny.

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 further supported in the hugely important case of Davis v West Sussex County Council [2012] EWHC 2152 (QB).

Taking legal representation with you in order to keep the discussion on track and to ensure that you do not feel ambushed by questions or allegations that you were not expecting can also help. These meetings can be very intense experiences and we have known providers agree to wholly unreasonable demands made by the investigating authority under the pressure of such meetings – for example undertaking a voluntary embargo or accepting responsibility for something that was not the provider’s responsibility at all. Having legal support at a meeting means that there is someone sat alongside the provider processing information in a practical way whereas a provider that may be hearing challenging information for the first time may not (understandably) be thinking clearly.

Safeguarding investigations can quickly drain good morale and cause disruption to the home. They also have the potential to fracture otherwise close working and effective teams. 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. It is important that providers are able to deliver focused and comprehensive information to facilitate an effective and balanced investigation which will, hopefully, lead to a swift and satisfactory conclusion. Having a solicitor (who is removed from the situation) manage the process can help to keep parties focused on the end goal and encourage the investigating body to maintain perspective.

There can also be a regulatory impact, with the CQC involving themselves in matters or even conducting a focused inspection in the areas relating to any allegation made.  This is likely to be even more pertinent with the CQC’s move to a more risk based approach.  Providers will be aware of how close the regulator and local authorities work and how information is shared between the two parties.

Given the possible serious impact an investigation can have on a provider’s business, 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. This can be particularly difficult for providers who have been forced to suspend staff on full pay pending the outcome of the investigation.

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.

Providers should feel empowered to ask investigating bodies about timelines, what they can do to aid and make more efficient an investigation and for details about next steps in an investigation.  This should be well received as it is all parties’ interests to draw such matters to a swift conclusion.

Taking legal advice at the outset of a safeguarding investigation will prepare a provider for what is to come.  A lawyer can act as a sole point of liaison and manage all requests for information or evidence, allowing the provider to get on with its primary task – providing care. Often, the appearance of a lawyer in what are actually relatively informal “proceedings” can demonstrate to an investigating authority that the provider is taking the matter seriously and wants to aid the investigation. It has the added benefit of the lawyer being able to push for answers on timelines or question requests or assertions made by the investigator that are unreasonable or unwarranted.

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 line may be required to ensure the provider is not excluded from the process. We have seen a number of cases where providers have been completely left out of the process and only find out about an allegation at the point that it is substantiated

Ultimately, the provider is responsible for the running of their service and should take control of all allegations made against their provision. It will be important to investigate and find out the facts as quickly as possible and before the police become involved which would prohibit such an investigation (as can be the case with certain types of allegation). Providers should not feel pressured into providing an answer on the spot to the local authority or other participants during safeguarding investigations. 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 clearly and robustly to the local authority.

If a provider feels that an allegation is ill-founded or that the approach of the investigating body is concerning, legal assistance should be promptly sought. As noted above, providers are entitled to have legal representation during safeguarding meetings and this can help keep the process moving and hold the local authority accountable in the way that they conduct an investigation.

Ridouts have been involved in a number of safeguarding investigations where we have been engaged part way through a protracted period of disruption and investigation. We have been able to take control of the process through effective communication with the safeguarding leads concerned and submit targeted and precise evidence that has led to the swift conclusion of the matter. This was particularly useful in cases where the local authority has threatened to remove service users as a consequence of allegations and Ridouts were able to submit compelling evidence that the allegation was not accurate and had in fact been made maliciously.

It is vital that providers understand their role in safeguarding investigations and participate as much as possible in those investigations. Efficient management of the process could mean the difference between a quick resolution or a process that extends over many months, damaging reputation and morale along the way.

Proactivity is key, along with an awareness of the rights and obligations of the investigating authority.

If a provider feels that an investigation is spiralling out of control then it should seek legal advice as quickly as possible.

If you’d like more information on the work we do with providers in this area please give us a call on 0207 317 0340.

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