Why safeguarding adults boards’ role must be beefed up to fill gaps in Care Act 2014

By Belinda Schwehr, Care and Health Law 

Having looked last week at the weaknesses in the Care Act 2014 draft statutory guidance on the legal basis for safeguarding practice, this piece will examine its approach to the role and functions of a safeguarding adults board (SAB).

This has not been illuminated by the draft guidance to any great extent. It simply restates the Act (sections 43-45), in many respects, for example in relation to the responsibilities to carry out safeguarding adults reviews and produce annual reports. In terms of membership, it leaves it all up to local authorities, outside the mandatory membership of the relevant clinical commissioning group and chief constable. The contributions of partners, in financial terms, are also down to partners’ discretion.

It seems to me that the fundamental purpose of an SAB, given the extent of the discretion and local difference positively encouraged by the guidance, is to set policy on the very essence of the principles and purpose of safeguarding in the area.

The guidance says that achieving the aims of adult safeguarding – preventing harm, reducing risk etc – requires ensuring:

• that the roles and responsibilities of individuals and organisations are clearly laid out;
• that a strong multi-agency framework for safeguarding is created;
• that access to mainstream community safety measures is enabled;
• that the interface between safeguarding and quality of service provision is clarified.

That sounds like a good start for any SAB, but one that should be built upon through an understanding of why we have safeguarding policy.

Why we have safeguarding policy

My position is that safeguarding developed as government policy in the first place for legal reasons. I think that safeguarding policy was originally put in place to ensure:

• that what was thought to be an all-embracing duty of care would be breached as rarely as possible, through councils being able to evidence, through process, that they had at least taken reasonable steps to investigate safeguarding concerns;
• that human rights law, applicable to the State itself, was complied with.

Since the case of X & Another v London Borough of Hounslow [2009], it has been the law that there is no duty of care to protect merely vulnerable adults from the acts of third parties that could result in legal action for damages in relation to negligence. But there is the positive duty of the State, under article 1 of the European Convention on Human Rights, to ensure that human rights, such as freedom from inhuman or degrading treatment, are accessible for all citizens. People with cognitive impairments, or dependencies making it difficult to protect themselves, are owed a higher level of pro-activity by the State to uphold their rights.

Is there was a policy intent to bring in a duty of care in negligence? This is highly unlikely, given the extreme pressure on all public services, and for the same public policy grounds referred to by the courts, when they considered the merits of extending traditional duty of care concepts into new areas of welfare provision based on statutory functions.

I think safeguarding policy is designed to reinforce the human rights related positive duty, through due process, whilst allowing for discretion to use good management principles to minimise risk.

Understanding that that is why they are in place could only be good for SAB partners, to my mind, and sets a serious context for their meetings.

Ensuring person-centredness

A weakness of both the No Secrets guidance (2000) and Safeguarding Adults, the practice guidance issued by the Association of Directors of Social Services in 2005, was the lack of focus on the centrality of the individual alleged to be the victim of abuse or neglect. The Care Act guidance does seek to address this (as does the whole Act) with more explicit references to Mental Capacity Act concepts and principles. But it doesn’t do it very well.

It uses a series of “I” statements, popular as a means of conveying a level of consensus and ‘buy in’ from service users, to introduce principles of safeguarding, but several of those statements bear little relationship to the principle that is supposedly being illustrated – and no legal source of their underpinning is cited. For example:

“I understand the role of everyone involved in my life.”

This is meant to be a measure of accountability. If that is so, then to my mind, the statement should at least read:

‘‘I understand the role of everyone involved in my life, and so do they.”

Coming to findings of fact in disputed cases

There is nothing in the guidance about how to establish facts when the facts of the alleged abuse are hotly disputed. This is one of the biggest weaknesses of the Act itself but the safeguarding chapter of the guidance compounds the omission.

What is supposed to happen when each implicated organisation, in a complex case, brings lawyers along to the safeguarding meeting, and says that they are not willing to discuss the facts openly, because of the right to protect themselves from self-incrimination? What happens when the safeguarding coordinator says he or she ‘does not have the forensic acumen’ to make a decision as to the facts and has no resources to pay to obtain it?

An SAB needs to have a firm policy-making role and strategic and legal acumen, to make up for this, in my view, and the power and commitment to pool financial resources from all partners to get to the bottom of contentious allegations.

Relations between partners

What would SAB partners collectively take from these statements about the relationships between them in the guidance, I wonder?

“Criminal investigation takes priority over all other enquiries but not over the adult’s well-being.”

I am not sure what a safeguarding coordinator should do with this statement, faced with a police colleague’s failure to prioritise coming to a conclusion about whether or not to charge a person in a care home accused of molesting another. The police, unlike councils, are not bound by the Care Act duty, under section 1, to promote any particular adult’s well-being.

“Police investigations should proceed alongside those considering possible health and social care issues but they may take priority;”

This can only mean that they might also not, in some cases. Who is to decide? Should it be the SAB?

“The six principles [of safeguarding] apply to housing providers.”

How, exactly should the principles – empowerment, prevention, proportionality, protection, partnership and accountability – be applied to housing providers? Should this be in contracts or national standards? I don’t think so! Housing providers are not SAB partners, unless invited, not does the Act impose new duties on them. So if it actually supposed to be offering guidance, the chapter lacks rigour.

Treatment of alleged perpetrators

In relation to the treatment of alleged perpetrators, the guidance suggests that:

Under the Mental Capacity Act, people who lack capacity and are alleged to be responsible for abuse, should (my italics) be entitled to the help of an Independent Mental Capacity Advocate, to support and represent them in the enquiries that are taking place. This safeguard was introduced to ensure that people in this situation have support and help. This is separate from the decision whether or not to provide the victim of abuse with an independent advocate under section 68 of the Care Act.”

If ‘should’ means ‘must’ here, it is simply wrong. Regulations 4 and 5 of the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 makes it a power, not a duty, for councils or NHS bodies to appoint an IMCA in safeguarding cases where either alleged victim or perpetrator lacks capacity to consent to proposed measures.

But discretionary decisions of this nature are perhaps something that the SAB could reasonably expect to decide about?

In addition, people alleged to have perpetrated abuse against a vulnerable adult may also be on the list of people who should be consulted about best interests decisions made on that adult’s behalf. SABs should also be responsible for making decisions about how to deal with cases of this nature too, in my view.

The successful judicial review by care home owners against West Sussex council in 2012, because of the unfair way the authority treated the claimants during a safeguarding investigation, ought to justify a section in the guidance about public law principles which apply to all. But this does not feature.,

There are also omissions in respect of human rights, for example in paragraph 14.160, where providers are exhorted to have policies about co-operation with SABs undertaking safeguarding adults reviews. No one has taken the opportunity to write up that under section 73 the Care Act, all regulated providers with publicly funded or contracted-for clients will be subject to the Human Rights Act 1998 directly, and will thus have to show that they have taken positive steps to protect people’s rights. This could be a powerful tool to enforce the duty on relevant individuals or bodies to share information with the SAB (section 45), but nothing has been said about that.

Well-being outside of social care services

Under the regulations on eligibility under the Care Act, a person’s being at risk of being unable to protect themselves from abuse or neglect is not a freestanding indicator of eligibility for services or funding However, under the Localism Act 2011, councils have a general power of competence to do good things for their communities that are not prohibited in legislation, replacing the corporate power to promote well-being.

So the possibility arises that a council might help someone in safeguarding difficulties (and not merely investigate, and refer on) without their being found ‘eligible’ in traditional terms at all, for example through a well-being fund, out of which it could fund intervention that was not necessarily a social care service.

Examples would be the support of a person to get to a solicitor with a reputation for unravelling transactions made through undue influence; or to pay for expert mediation between warring siblings, or a council volunteering to take on the role of litigation friend in order to obtain redress for someone who lacks capacity, but who has assets to pay for legal advice.

However, the guidance steers away from suggestions of a fund other interventions outside of good social work and ‘collaboration’ for councils or SABs to manage, and that is a missed opportunity, to my mind.

Powers to remove

There is nothing in the guidance on the consequences of the Care Act’s repeal of section 47 of the National Assistance Act 1948, which gave councils the power to remove disabled, older or unwell people from an insanitary home if they are unable to look after themselves or are not receiving sufficient care, and then detain them.

This is despite the fact that councils have responsibility for public health functions and the Public Health Act 1984 provides similar powers of removal from private premises, though not detention.

Under Section 32 of that Act, the local authority can cause any person “to be removed to any temporary shelter or house accommodation provided by the authority”, with, or without their consent, using reasonable force if necessary, if a justice of the peace (acting, if he deems it necessary, ex parte) is satisfied, on the application of the authority, of the necessity for the removal, and makes an order for the removal, subject to such conditions, if any, as may be specified in the order.

This omission from the guidance illustrates why there needs to be guidance on everything that councils can lawfully do by way of interventions. Without adequate knowledge of the options, a proper decision that takes account of all relevant considerations, cannot be made. Abject failure to even know about the options in one’s armoury is the most likely route to the courts ultimately extending traditional notions of duty of care, in my view, regarding safeguarding failures. SABs could be the decision makers about when such very invasive action is required.

Property protection

Finally, there is a frustrating lack of information about the protection of property duty, transferred over from the 1948 Act, which is now section 47 of the 2014 Act. The guidance states that: “[where] the adult lacks the capacity to consent to the local authority entering the property, consent should be sought from a person authorised under the Mental Capacity Act to give consent on the adult’s behalf”.

What is hopelessly ambiguous about this, for the uninitiated, is that anyone who knows their Mental Capacity Act will still be left wondering if a best interests decision of a relative, to admit the council, is what is referred to here as ‘authorised’, or whether deputyship or power of attorney over property and affairs is what is needed.

The best interests framework and the defence, under section 5 of the MCA, to legal proceedings for tortious wrongs such as trespass and assault for people acting under the framework, is is not an authorisation to act, at all, but a cloak of legal protection, based on necessity. The initiated may well think that the positive choice of wording about ‘authorisation’, therefore, can only mean that the writers meant ‘formally authorised to make decisions about the person’s property’, through deputyship or power of attorney.

I first thought that the reference had been deliberately left vague because of the number of people likely to be affected but without any formal statutory agent. However, when I checked section 47 of the Care Act I found this:

So the guidance could legitimately say that there is an explicit statutory power of entry, based on consent of the owner or any formal agent, or a best interests decision, to give councils an even clearer defence to any claim for trespass than would arise from section 5 of the Mental Capacity Act.

There is no clarity as to how long this duty lasts – in the case, for instance, of the individual running out of money. As the sector is aware, this means that councils spend public money on care packages for pets and insurance for chattels, long after the person has run out of liquid assets, which cannot be right.

The reform and modernisation of social care law was the ideal time to sort this problem out for the sector; but if the draftsmen did not do it in the Act, there is surely no reason why the guidance could not go further than the Act or regulations. After all, it does precisely that in so many other aspects! So, once again, in the absence of such content, frustration is likely for staff, bearing in mind that this is supposed to be government guidance. This is another area where SABs could take on responsibility for setting policy in this regard.

The references to the need for legal advice and training

There are three references to the need for training and legal awareness among senior staff, chief officers, advocates and safeguarding leads, in the context of the need to review safeguarding procedures annually and on account of recent relevant case law.

The guidance says that:

“The procedures should also include the provisions of the law – criminal, civil and statutory – relevant to adult safeguarding.”

I would query why on earth this cannot be done centrally, by government, at this stage of the implementation process? It would only cost a few thousand pounds of the national implementation budget and there is the precedent of the 2005 ADSS Safeguarding Adults practice guidance to justify it. I am sure the ADSS did not just write this themselves!

During the passage of the Care Act, care minister Norman Lamb promised to work with the Local Government Association and the Association of Directors of Adult Social Services to develop practical guidance for practitioners about the legal powers available to them in cases of abuse and neglect. This would include illustrative case studies and scenarios illustrating the powers and, according to the minister, would mean that “possibly for the first time, there is a clear guide to all the legislative provisions available and what they actually amount to”.

I do not think that the current safeguarding chapter in the draft guidance can possibly be the fulfilment of this promise, and I think we should be told when it is expected to be forthcoming.