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Developments in safeguarding

Our People - Maria Nicholas
28 February, 2013

Key points

  • Failure to act appropriately to a safeguarding incident can have significant consequences, including affecting future contracting with local authorities and damage to reputation.
  • The Department of Health’s No secrets guidance requires local authorities to co-ordinate multi-agency arrangements to prevent abuse where possible and to identify and deal with abuse where it is occurring.
  • Safeguarding adults guidance (Association of Directors of Adult Social Services) sets out an eight-stage process for investigating possible abuse.
  • Providers are expected to be as proactive as possible in furthering investigations of possible abuse, in collaboration with the local authority.
  • Providers should ensure that they have documented policies and procedures that are followed if a safeguarding incident arises

Last year was an important year for the safeguarding of vulnerable adults; there have been a variety of investigations and reports, and in our view none have come too soon. This is an important issue for providers, as any failure to act appropriately can have significant consequences, including affecting future contracting with local authorities and damage to reputation.

Following the BBC Panorama report that brought to light the shocking abuse at Winterbourne View over a year ago, and the publication of the resulting serious case review in August 2012, concerns about vulnerable adults in care homes continue. MENCAP, together with the Challenging Behaviour Foundation, published the report Out of sight in August 2012, following 260 separate complaints of care home abuse across the country that they had received in the preceding 15 months. This figure did not account for any abuse not reported. The report strongly recommended:

  • rigorous inspections by the Care Quality Commission (CQC)
  • that the government strengthen the law on adult safeguarding
  • that commissioners ensure care providers demonstrate that they are capable of meeting people’s needs in the right environment with appropriately skilled staff.

The current position

There are many disparate sources of regulations for a care provider to comply with, and that can make compliance a full-time job. Currently, there is no clear source of information, guidance or training for providers to help navigate these regulations.

The Department of Health guidance No secrets, published in 2000, requires local authorities to co-ordinate multi-agency arrangements to prevent abuse where possible and to identify and deal with abuse where it is occurring. The guidance is statutory for social services but it is not legislation, although there would need to be good justification for departing from it. The relevant local authority will be the one in which the care provider falls. This applies regardless of how the resident is funded.

A vulnerable adult is defined at paragraph 2.3 of No secrets as a person ‘who is or may be in need of community care services by reason of mental or other disability, age or illness’ and ‘who is or may be unable to take care of, or protect, him or herself against significant harm or exploitation’. Many residents in care homes will fall into this category, as will those receiving domiciliary care, and such a person should be safeguarded.

No secrets identifies that there should be ‘key stages’ in the procedures introduced by each local authority for the investigation of possible abuse. There is some variation between local authorities in the way the stages are set out and in terminology, but typically they follow an eight-stage process set out in the Association of Directors of Adult Social Services’ (ADASS) guidance Safeguarding adults (2005). We have highlighted at which stages the care provider’s involvement will be required. Where the individual concerned lacks capacity, there will be additional issues to take into account, namely what is in their best interests, and potentially additional bodies involved, such as the Office of the Public Guardian and the Court of Protection.

Providers are expected to be as proactive as possible in furthering investigations, in collaboration with the local authority. Each provider should ensure that they have documented policies and procedures that are followed if/when such an issue arises. They should also carefully document how these policies and procedures have been followed to demonstrate that they function as they should.

New developments

There has been talk for some time of local authorities receiving statutory duties and powers regarding adult protection, in a similar way to child protection; this has yet to happen. Meanwhile, there have been a number of developments affecting regulation.

As part of a recent CQC consultation on the strategy for the next three years, David Behan (Chief Executive of the CQC) said that an important change will be tailoring how the CQC works to different providers. This is potentially good news for providers, as it clearly makes sense to regulate a small care home differently from a large dental practice. It would also hopefully mean that inspections are carried out by specialist investigators who know about the service being provided.

Another consultation, which ended in January 2013, was carried out by the Department for Business, Innovation and Skills. The focus here was on how best to regulate care homes from the provider’s viewpoint. One aim in regulating a care home must be to enable providers to achieve the highest standards of care, whilst removing confusing bureaucratic requirements that divert attention from meeting service users’ needs. This viewpoint is clearly of benefit to providers; it is important in this time of great concern for vulnerable adults that the government does not lose sight of what can work in practice. Care homes need to provide a service and being submerged in bureaucracy will clearly not assist them in doing this.

At the same time, the government ran the Healthy Living and Social Care Red Tape Challenge. This covered over 500 regulations relating to public health, quality of care/mental health, the NHS and professional standards. The aim was to identify which regulations should be scrapped or improved to give health professionals more time to care for patients, without weakening necessary public health safeguards.

In December 2012 the government launched the Disclosure and Barring Service (DBS), a merger of the Criminal Records Bureau and Independent Safeguarding Authority. The primary aim of the DBS is stated as being ‘to help employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups’.

The DBS will now process CRB applications and referrals regarding individuals who have harmed or pose a risk of harm to vulnerable groups. It will also decide who is to be placed on the children’s and/or adults’ barred list. Employers will be able to access potential employees’ criminal record history and check if they are on a barred list. If they are, then clearly that person should not be employed to work with vulnerable people.

In spring of 2013, the DBS is to launch the ‘Update service’; individuals will register just once for a CRB check, and this will then be automatically updated and available for employers to check when needed. This is an improvement to the current situation, whereby a CRB certificate can only show convictions or other relevant information known of at the time the certificate is issued, so it should be an easier, more efficient and more accurate system for care providers to use.

Employers should also be aware that in 2013 the CRB certificate will only be provided to the individual and not to the employer directly. Employers will have to obtain the certificate from the prospective employee.

What this means for providers

Although local authorities have no direct power over care providers when it comes to implementing safeguarding procedures, there may be contractual conditions between the local authority and the care provider that could be relied on, or the local authority may decide simply not to contract with that particular provider any longer. There could also be damage caused to the provider’s reputation.

It is imperative therefore for a provider to act swiftly as soon as any safeguarding concerns are raised, and to work with the local authority to facilitate the investigation and implement any outcomes. The aim should be to work collaboratively with the local authority; however, care providers should also be aware that the local authority may be more adversarial. In any event, if the provider has concerns about if/when to discipline or suspend staff, what urgent steps to take and how to work with the local authority, legal advice should be obtained.

We hope that one outcome of the CQC consultation will be to clarify the role the CQC should take as opposed to the local authority when it comes to investigating safeguarding concerns. Defined roles for the CQC, for care providers and for local authorities should make investigations more effective and more efficient.

We will have to wait and see what the outcomes of these consultations will be. However, it seems clear that the focus of both safeguarding and how care providers are regulated is shifting. We hope the shift will be towards a much clearer set of policies and regulations that all bodies, including providers but also the CQC and local authorities, can work with to achieve better, more effective safeguarding of vulnerable people. It will be imperative in the coming months for providers to keep abreast of consultation reports being published, any guidance and, potentially, new legislation, and to ensure that all staff are kept well informed and well trained on these developments.

For publication in the April 2013 edition of Quality & Compliance Magazine.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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