By Belinda Schwehr, Care and Health Law
I have to say that in my view the chapter on safeguarding is currently one of the weakest in the Care Act 2014 draft statutory guidance, unfortunately. It is one of the most legalistic areas of local authority work, where absence of a clear basis for a council’s actions and approach can only risk harm to a council’s relationship with the public, to its reputation and also to families under stress. So any weakness, here, could lead to a serious problem for practitioners, as the Skills for Care materials being developed for training use across the sector are, to large extent, dependent on the guidance.
In my analysis of the Act’s implications for safeguarding I looked at three issues and will revisit them now in light of the guidance.
What link between safeguarding and assessment
My first theme is the link, or otherwise, between the framework for safeguarding, and the separate new framework for adult social care functions. Is the duty to make safeguarding enquiries one that arises independently of assessments, or is it to be discharged through assessment and risk managing service provision functions? If it is separate, what is its scope and extent?
Belinda Schwehr will be explaining the implications of the Care Act for social work practice at Community Care’s forthcoming conference on the subject, in London, on 17 September 2014. Register now for a discounted place.
In the draft guidance, this has been enlarged upon only slightly on what is in the Act itself. The extent of the enquiries duty is seemingly so flexible, and dependent on circumstances, that the vision for its use could almost be simply about competent social care services management principles, through more well-informed approaches to triage.
Safeguarding is not a statutory function at the moment. It is an outcome, based on a policy directive, in No Secrets, and has been discharged, by default, through assertive use of community care legal provisions, such as assessment and care planning, and referrals to other agencies, under discretionary or mandatory statutory or regulatory provisions, and the use of lawful information sharing principles.
The body of permissive public law, applied to adult social care, together with the supposedly pervasive concepts within the Mental Capacity and Human Rights Acts, have remained the legal underpinning to safeguarding, until now.
The need for improved legal literacy
But the last two years have seen many judicial reviews, ombudsman investigations and Court of Protection judgments – against councils – for unfairness in safeguarding contexts or for interventions beyond their legal powers. This would suggest that adult social care managers are not aware of their legal position, powers and opportunities, or restrictions on their best intentions, a good deal of the time.
Given that the Act heralds a new duty to make enquiries and decide what should be done at the end of those, one might expect that the guidance would be detailed. A highly permissive tone is taken throughout this chapter in most places, allowing for more discretion and less formality around safeguarding, with the emphasis being on individual circumstances – consistently, it is said, with personalisation. The overall message seems to be that proactive safeguarding is made up of good assessment and care planning (page 198):
It is often when people become increasingly isolated and cut off from families and friends that they become extremely vulnerable to abuse and neglect. Agencies should implement robust risk management processes in order to prevent concerns escalating to a crisis point and requiring intervention under safeguarding adult procedures.”
I am not against proactive safeguarding starting at or before assessment and care planning. It should always have been the policy.
My concern is that reactive safeguarding is properly well-informed as well. The intention may be good, but the guidance material is not what is needed, in my view, for equipping staff with a solid basis of understanding, within which they can explore and make proper person-centred decisions about helping people help themselves, whilst remaining on the right side of the law, when someone else is not happy with the intervention.
Good points in the guidance
There are some undoubtedly good points in the chapter: for instance, the tone hints that commissioning slip-ups, care management misunderstandings and provider hiccups can be seen as such, without safeguarding alarms necessarily ringing out. Enquiries need not even be called ‘safeguarding’ enquiries. And there is a special warning to contracts teams not to use safeguarding ‘powers’ to aim to raise performance with providers – the guidance stresses that other means are more appropriate if, of course, one has the staff and a proper monitoring culture in place (page 199):
It is not useful for commissioners of care or other professionals to attempt to improve services by using safeguarding procedures as a threat to intimidate providers. [The Care Quality Commission] and commissioners have alternative means of raising standards of service, including support for staff training, contract compliance and, in the case of CQC, enforcement powers”.
Less impressive examples of naivety and ambiguity
There is, however, a naivety about some of the assertions and examples that is gravely worrying to anyone who understands the legal framework.
If the alleged abuser is using care and support themselves then information about their involvement in an adult safeguarding enquiry, including the outcome, should be included in their case record. If it is assessed that the individual continues to pose a threat to other people then this should be included in any information that is passed on to service providers or other people who need to know.”
My concern here is that there is plenty of case law about how it can be a disproportionate invasion of a person’s private life (a breach of article 8 of the European Convention on Human Rights) to insist on disclosure of particular aspects of a person’s past to others as part of supporting a person, for example, into independent housing. Multi-agency processes have no explicit power over those who have been successfully diverted from the criminal justice system by virtue of their vulnerabilities.
There is an example – the case of Mr X (page 200) – where the guidance suggests that self-help initiatives should be supported by council officers and housing providers, for example supporting people to change their locks and store the effects of lodgers who have outstayed their welcome and molested the homeowner.
Support with eviction could have been provided in one line of advice and information here. If the unwanted guests – a family friend and his girlfriend – were licensees by virtue of sharing with Mr X, they just had to be given reasonable notice; one is given no clue about the man’s capacity, and just telling him this simple legal truth might have been all he needed.
The social worker worked with Mr. X to offer alternatives, for example a place of safety, and gained information from the police as to how they might be able to help”.
I want to know what the police said, here. In my experience, it will have been, ‘sorry, but it’s a civil matter, they’re not squatters, they were let in with your permission’.
“Mr. X and the social worker agreed a plan to remove the family friend and his girlfriend’s belongings during a period that they had planned to go away….The social worker worked with the police to assure that this was within the law, worked with the Council to store the belongings in Council storage, worked with housing services to change the locks, and made arrangements for the family friend and his girlfriend to contact the social worker to pick up their belongings.”
Information and advice from Shelter explains that if the landlord lives in the same building, or no rent is payable, the occupiers are excluded from the Protection of Eviction rules that require a court order for removal. The landlord has the right to change the locks whilst one is out and remove one’s belongings and place them outside to persuade one to leave. But it all depends on reasonable notice having been given and expiring, and the example doesn’t say that this has occurred.
This example therefore seems to me to be at best disingenuous in suggesting that ‘work’ was needed to get the man to this point, or naively vague and possibly even on the wrong side of the line in the impression it conveys.
Good social work or safeguarding?
There is another example of good social work communication being seen as a sort of safeguarding response in the case of a mother refusing outside care, with an adult daughter on the point of withdrawing support from exhaustion, and feeling let down by siblings Page 201):
A network meeting was held at short notice, the meeting took almost two hours and the agreement was for a staggered package of care with the daughters to ensure that Mrs. A’s needs were met and that all of her daughters had free time…All parties agreed to a trial period to be reviewed. Shortly after one of the daughters contacted the social worker to say that the family continued to discuss the meeting and that they felt it had been a positive experience. Mrs. A was in agreement, and during this conversation she took herself to the shower, attended to her personal care, dressed herself and returned to the lounge. The daughter reported extreme surprise because she had been dealing with this element of her mother’s ‘care needs’ for nearly two years. It appeared that the process had empowered Mrs. A to undertake these activities herself.”
If this is credible, it is surely just good social work, not actual safeguarding? But what if no-one from this scenario had welcomed the intervention?
Credible or not, I would have found it more valuable if the example had gone into a scenario where the sisters would not talk to the social worker and the daughter doing the care either did withdraw support and left her mother to it, or would not stop, but would not let anyone else get a look-in.
Social workers require more than relentless optimism and we are not investing properly in promoting the reprofessionalisation of the workforce with guidance that short-changes them.” Belinda Schwehr
My own view is that good social work together with a knowledge of what is legally possible and what is not, is what is required in a modern system. Social workers require more than relentless optimism, and we are not investing properly in promoting the re-professionalisation of the workforce, or what is left of it, it seems, with guidance that short-changes practitioners in this regard.
Weaknesses in the discussion of the options
In an example reflecting familial abuse, the choice discussed in the guidance is between a support package or a referral to the police but the possibility of the person needing a claim to be brought for undue influence, to unravel a gift of property, is not mentioned.
Referrals for recovery of money are not recommended because people need money to bring most kinds of proceedings, these days. But not even the Official Solicitor’s role as the bringer and defender of ordinary civil proceedings, for people lacking capacity, is mentioned, no doubt because of the Cheshire West judgement and the implications for use of the Official Solicitor’s own dubiously cash-limited budget.
In an example involving repeated assaults by a father against his daughter with learning disabilities (page 194), where the context is carer strain, no referral to the police is apparently made. Family mediation is used. There is no discussion of why a clear criminal offence is not reported to the police, and there is no discussion of what could have been done, or should have been done, if the man in the scenario hadn’t been willing to embrace anger management therapy!
On the one hand, examples like these show that safeguarding is just good care planning, and management grasp, really, without the aggravation of having to treat the person as a perpetrator.
The biggest problem with the guidance
But if that was the intended message, the biggest weakness in the guidance is that there needed to be openness about the lack of coercive power, in the new framework. It is that which means, ultimately, that a council does sometimes have no option but to resort to court, when everything else has been tried.
Injunctive relief with a power of arrest and the threat of contempt proceedings is the ultimate reward for going to court, if the perpetrator can properly be enjoined – and there has been case law in the last year in which a person has actually been imprisoned for such contempt (see the case of Stoke City Council v Maddocks and others (2012)).
That sort of information is what a safeguarding team needs, I feel, even if they never get close to going as far as using it: it is the robustness of the conversations held with alleged perpetrators, based on a clear legal footing, that would make safeguarding more effective, in my view.
Evidencing those other prior efforts is important, humane and prudent, but that’s part of good management systems within social care assessment, care planning and contract monitoring, in any event.
Failure to address this sort of complexity is short-sighted and blinkered and has a tendency to come back and haunt optimists. The result, I fear, will either be litigation, to prove the guidance to be inadequate, or a financial hit for not doing it right first time.
The risk, for local practice and culture, of very high-level guidance, with little detail
On page 202, the guidance says:
In any organisation that comes into contact with adults at risk, there should be adult safeguarding policies and procedures. These should reflect this statutory Guidance and are for use locally to support the reduction or removal of risk, and securing any support to help the individual recover.”
Most councils’ contracts with providers say “follow our safeguarding adults process” as a term of business; and the Care Quality Commission approach to fitness for registration is to require compliance with a locally applicable protocol, independently of contracts for publicly-funded clients, so that services with only private clients are signed up directly.
This guidance says, however (page 199):
It is important that all partners are clear where responsibility lies where abuse or neglect is carried out by employees or in a regulated setting, such as a care home, hospital, or college. The first responsibility to act must be with the employing organisation as provider of the service…”
My experience tells me that this might be because it has been grasped centrally that hospitals were being treated differently to social care providers, for the simple reason that a commissioning council has direct power over the latter, but not the former. It may be because most abuse is a civil law wrong (a tort) and that it is the position that those responsible for the wrongdoing must work to take steps to prevent such wrongs happening through lack of care or recklessness in management.
But if the policy intention is that we should adopt a nationwide culture of expecting internal complaints to solve all problems of abuse whenever there is an organisational responsibility in place, I think that it should be stated loudly and clearly, in relation to its impact on the decision–making part of the enquiries duty.
It goes on:
The employer should investigate any concern unless there is compelling reason why it is inappropriate or unsafe to do this (for example, serious conflict of interest on the part of the employer), or unless it considers a criminal offence may have occurred in which case it must urgently report it to the police. An example of a conflict of interest where it is better for an external person to be appointed to investigate may be the case of a family-run business where institutional abuse is alleged, or where the manager or owner of the service is implicated. The circumstances where an external person would be required should be set out in the local multi-agency procedures. All those carrying out such enquiries should have received appropriate training.”
I do not think that the safeguarding learning materials from Skills for Care can feasibly supply the omissions here, in order to shape and underpin that training with any hope of nationwide consistency or confidence about this kind of quandary.
In the next article I will look at the vagueness of the role and functions of a safeguarding adults board and suggest some other tasks that they could take on, to give meaning to the role.