By Belinda Schwehr, Care and Health Law
Readers may well be aware that the Care Bill is supposed to modernise the protection of vulnerable adults within a clearer legal framework than has existed since No Secrets was issued as guidance and exhortation, in 2000.
This piece will look at three issues:
- the link, or otherwise, between the new framework for safeguarding, and the separate new framework for adult social care functions (assessment, consideration of risk in the context of eligibility and the signing off of a care plan);
- the vagueness of the role and functions of a safeguarding adults board;
- the new duty to share information and its implications for actual safeguarding investigations.
The Care Bill’s safeguarding measures
In relation to safeguarding, the Care Bill will do the following:
- Make safeguarding adults boards statutory;
- Make safeguarding enquiries a corporate duty for councils;
- Make serious case reviews mandatory when certain triggering situations have occurred and the parties believe that safeguarding failures have had a part to play;
- Place duties to co-operate over the supply of information on relevant agencies;
- Place a duty on councils to fund advocacy for assessment and safeguarding for people who do not have anyone else to speak up for them;
- Abolish, on human rights grounds, councils’ power to remove people from insanitary conditions under section 47 of the National Assistance Act, albeit with recourse to the Public Health Act still possible for nearly the same outcome;
- Re-enact existing duties to protect people’s property when in residential care or hospital;
- Place a duty of candour on providers about failings in hospital and care settings, and create a new offence for providers of supplying false or misleading information, in the case of information they are legally obliged to provide.
Detailed guidance is promised as to all the steps that can be taken in law, by government, in time for the coming into force of the Care Act 2014 (April 2015 for the safeguarding measures), but not necessarily for the training period that will precede it.
The current legal position on safeguarding
Safeguarding is currently a non-statutory policy directive, in No Secrets, and is discharged through assertive use of community care legal provisions – such as assessment and care planning – referrals between agencies and the use of lawful information sharing.
This body of public law, and concepts within the Mental Capacity Act 2005 and Human Rights Act 1998, have remained the legal underpinning to safeguarding, even though the last two years have seen many judicial reviews and Court of Protection judgments against councils, for lack of legal literacy.
Limits of new legal framework
The Care Bill is said by government to put safeguarding on a statutory footing; but councils’ powers to make safeguarding enquiries lead to any meaningful outcome, in a care plan, will still be predicated upon adult social care powers to provide care and support, for which one must be eligible.
The decisions to be taken in safeguarding cases will have to be derived from assessment functions, not free-standing duties that actually provide any alternative means to investigate or manage risk. Social care services are not a second police force or a surveillance force; they are there to manage risk – not pursue wrongdoers (other than in their own ranks) – and already have social care powers with which to discharge that mission.
The local authority has a responsibility to make enquiries if the adult is currently in its geographical area of responsibility (whether or not the person is ordinarily resident there). Regardless of who or which council has commissioned any services, the one on the spot should take the lead. This always has been and always will be embarrassing if the safeguarding concern is actually an assessment, care planning, contracting, non-commissioning, funding or monitoring issue.
Why eligibility for care will remain important in safeguarding
The government says: “The eligibility criteria that the local authority sets for services and support are not relevant in relation to safeguarding.”
This is disingenuous – the threshold has never been relevant to the duty to assess, but it has been relevant to services provided within a safeguarding plan, because the actuality or threat of abuse was specifically included in critical and substantial bands of the Fair Access to Care Services guidance. However, the inability to keep oneself safe was not to be found anywhere in the first iteration of the proposed national minimum eligibility threshold for care, currently still under development.
The duty to make enquiries
There is no duty to make safeguarding enquiries if the person is vulnerable but regarded as able to take steps to help themselves. So the duty is not all inclusive or all-embracing. It is not tied to eligibility, because that can only be decided upon an assessment, but it is tied to the person considered to be at risk being so because of their health or social care needs and the impact of those on their ability to look after themselves.
If the person denies that they have needs for care and support or are at risk, but the council thinks that this position is delusional or a result of coercion by a third party, it must still assess. This will be highly relevant in cases of self-neglect, which is not excluded from the Care Bill by anything specific, and no wonder: certain manifestations may sometimes be impossible to regard as a lifestyle choice if one is applying one’s Mental Capacity Act 2005.
Safeguarding adults boards (SABs)
Schedule 2 of the bill specifies that members of an SAB must include at least the local authority that established it, the NHS clinical commissioning group and the chief officer of police. Councils can decide who else should be a member, such as housing authorities or provider organisations. SABs will be required to produce a safeguarding plan, progress on which they must report annually.
Where SABs know or suspect that serious abuse or neglect has contributed to the death or serious harm of an individual, and there is reasonable cause for concern about how SAB members or other persons with relevant care and support functions acted, then SABs will be required to carry out a safeguarding adult review. SABs will have the power to undertake reviews in other circumstances if they so choose.
The culture of safeguarding boards at present is very much determined by who is chairing that meeting. If it is an independent chair one gets something different from the kind of risk enablement and risk management debates that one would get if the chair were to be someone from the safeguarding team within social services.
This transformation of existing informal bodies to statutory ones has revealed a paucity of consensus nationwide about what they are actually supposed to be for.
There is a new duty on relevant organisations to supply information to SABs on request (clause 45). This mirrors a duty in children’s legislation relating to local safeguarding children boards.
Creating a duty to provide the information is presumably intended to assuage fears leading to persistent resistance in this regard (for example, due to misconceptions around data protection laws). In this day and age, however, there is really no excuse for having misconceptions about data protection laws, and safeguarding boards, and the people who operate enquiries and make plans, must of course be legally literate.
If certain conditions are met, a person or body must supply information to a SAB at its request, or to any other person mentioned in the request. The information must be requested for the purpose of enabling or assisting the SAB to perform its functions. But its functions relate to doing anything it believes necessary to co-ordinate and ensure the effectiveness of all those who exercise ‘enquiries’ functions.
So, the use to which this information-sharing power of request can be made will extend into the day-to-day work of those doing the safeguarding assessments. SAB members can therefore expect to be ‘leant upon’ to issue requests for the information on a regular basis.
It is wholly unclear from the bill in what situations ordinary factors related to confidentiality or non-disclosure would be a legitimate excuse for refusal – for example, by the police, in relation to an ongoing investigation – or what should be done about it in such a situation.
Who can be required to comply?
The person or body requested to supply the information must have functions or engage in activities such that the SAB considers it likely to have information relevant to a function of the SAB.
In its explanatory notes to the Care Bill, the government said this might include a GP who provided medical advice to an adult in respect of whom an SAB was carrying out a safeguarding adults review; a person carrying out voluntary work that brought him or her into contact with such an adult, or a minister of a church attended by a family member or carer of the adult. So it is clear that the government intends this duty to be applied rather widely!
Subsection (6) provides that an SAB (or anyone else) may use information provided under this section only for the purposes of its functions.
Advocates are going to be present at safeguarding meetings, in future. Relatives who wish to obtain information about the incident with a view to getting redress for the victim, through being their litigation friend, may well be too.
Is this provision intended to be used as a fetter to prevent people from bringing legal proceedings based on what they have found out from safeguarding enquiries? Surely that is something that would have been debated?
The training impact
All these issues clearly give rise to the need to think about the training challenge, sooner rather than later. The whole journey, above, must be informed by the notion of promoting well-being, under clause 1 of the bill, and all the other legal rules that already apply.
These include those arising from human rights and mental capacity legislation, negligence duties, and the choice rules, re-written within the bill, – as well as NHS legislation and guidance as to what is free health provision, not chargeable social services.
In an era of litigiousness, the social services sector needs legally literate trainers and advocates.
My response to that need is to train up a team of trainers, through a Britain’s Got Talent style competition, who will be able, genuinely, to answer the legal questions that staff are bound to ask. Find out more, including how to apply.