Rationing of access to adult safeguarding casts shadow over Care Act aspirations

By Gary FitzGerald

When Ivan Lewis, then minister for social care, announced a review of the No Secrets guidance in 2007, there was huge optimism that the protection of vulnerable adults in England was going to be placed on a firm statutory footing, with a strong infrastructure and robust powers to intervene and protect. The review announcement came in the same year that legislation to achieve those aims – the Adult Support and Protection (Scotland) Act 2007 – was introduced north of the border, and there was a feeling that adult protection was finally coming of age.

Failure to deliver

Eight years later, in April 2015, the Care Act 2014, including provisions on adult safeguarding, came into force. But the end result failed to deliver on expectations. In fact the disappointment among many people was so great that the Department of Health felt obliged to state (and re-state) that the Care Act’s safeguarding measures were not ‘business as usual”.

The argument was that the Care Act statutory guidance, which replaced No Secrets, represented a cultural shift, and that the Making Safeguarding Personal approach embodied this. However, the act brought no new powers of intervention in relation to adult safeguarding cases, and relied instead on the use of pre-Care Act legislation to protect people – the Mental Capacity Act, the Mental Health Act, and the Human Rights Act.

No improvement

Since the act was implemented in April, the situation has not improved. The ‘now you see it now you don’t’ introduction and deletion of the designated adult safeguarding manager role from the statutory guidance was disruptive. And the decision not to introduce mandatory reporting to the Health and Social Care Information Centre of its Making Safeguarding Personal performance indicator – when it was supposed to be the cornerstone of the argument that this is not ‘business is usual’ – was illogical.

But it is the rationing of adult protection that is the most worrying. Excluding anyone deemed able to protect themselves or who does not have a social or health care need from being eligible for a safeguarding enquiry under the Care Act – with no guidance on how these restrictions should be interpreted – is a recipe for disaster. Initial estimates suggest this is affecting thousands of possible victims, at a time of an increasing older population, increased need, but decreased budgets.

So, what are some other key issues?

Safeguarding adults board challenges

While these were made statutory from April 2015, most local authorities already had them in place. It is too early to judge their current effectiveness, but it is fair to say that they are ‘in transition’ and not yet the meaningful overseeing body that the Care Act envisages. Key challenges include how to hold agencies to account – in particular NHS trusts and clinical commissioning groups; gaining evidence on performance assurance; and how to ensure genuine independence of SAB chairs if they are accountable to the chief executive or strategic director of the local authority. And there is a long way to go in terms of public involvement and reflecting a service user voice in planning and operation.

Potential to help learning

Leaving aside the questionable decision to avoid calling these serious case reviews, this is one Care Act initiative that could be helpful to learning. It is too early to assess precisely what difference has been made, but it is reasonable to expect more reviews to be taking place and a greater volume of learning to be shared – although that is hampered by the failure to establish a centralised database of reviews, and the reluctance of local authorities to widely publicise review details.

Too early to assess

The MSP agenda is beginning to have some impact within SAB business planning and development, and this is good if it genuinely delivers outcomes that victims understand and want. But it is too early to assess effectiveness. The recently published review of MSP failed to consider victim experiences and focused instead on practitioner views; a somewhat ironic approach given the nature of what was being considered. And an obvious drawback is the failure to establish ‘core’ national procedures, with a lack of consistency about how MSP is being implemented – both within councils, and over the broader multi-agency system.

Huge questions remain

So, there has been some progress since April, but at quite a slow pace and quite difficult in many aspects to evidence. There remain huge questions about the involvement of the NHS in the whole process, but the claim that it is not ‘business as usual‘ is at best aspirational, as little has yet changed across the operational landscape. There remains a lack of consistency between local authorities in identifying when a safeguarding concern needs recording for HSCIC purposes and most fail to record when they are denied access to a victim by a third party, making a nonsense of the commitments given in Parliament that the ‘inherent jurisdiction of the courts’ would be used in such situations. All in all, the situation remains vastly better in Scotland, and will be somewhat better in Wales next year with the enactment of the Social Services and Wellbeing Act 2016.

Gary FitzGerald is chief executive of Action on Elder Abuse.