2.3 Receiving Concerns and Undertaking Enquiries
- 2.3.1 Introduction
- 2.3.2 Responding to safeguarding concerns
- 2.3.3 Undertaking a safeguarding enquiry
- 2.3.4 Interface with other investigations and reviews
- 2.3.5 Assessing and managing risks
- 2.3.6 Safeguarding meetings
- 2.3.7 The local authority causing others to make enquiries
- 2.3.8 Safeguarding where there is a health / clinical concern
- 2.3.9 Involving an adult in an enquiry
- 2.3.10 Identifying outcomes
- 2.3.11 Working with the person thought to be the cause of risk
- 2.3.12 Concluding a safeguarding enquiry
This section outlines the framework which should be followed when responding to safeguarding concerns and undertaking enquiries. It sets out the expectations regarding the standards, roles and responsibilities of agencies and organisations and practice of staff and managers involved in safeguarding work.
Diagram 3: Overview of the Safeguarding Process
Please note that there is scope at each stage of the enquiry outlined above to review the situation and consider if it is necessary to continue with the safeguarding enquiry or if it can be safely concluded at that point. Decision making will be based on professional judgement and informed by a combination of:
- the adult’s wishes,
- an analysis of risks,
- whether actions already taken have resolved the situation.
2.3.2 Responding to safeguarding concerns
When the local authority receives a safeguarding concern it will initially check if any action is required to address immediate risks, for example by contacting emergency services if there is an imminent serious or life threatening risk to the adult or others.
The Care Act places a duty on the local authority to undertake a safeguarding enquiry where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)
- has needs for care and support (whether or not the authority is meeting any of those needs),
- is experiencing, or is at risk of, abuse or neglect, and,
- as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.
If the information received gives the local authority reasonable cause to suspect that these three key tests are met, then the duty to enquire is triggered.
If the information received is not sufficient to enable the local authority to make a reasonable judgement as to whether the duty is triggered, then it may seek further information until there is sufficient information to make a decision. This could include
- reviewing previous records,
- gathering further information from the person who raised the concern.
Once the duty to enquire is triggered any following actions undertaken are taken under Section 42 of the Care Act, where each local authority must make enquiries or cause others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom. An enquiry must take into account the adult’s views as to what actions, if any, they wish to happen as part of the enquiry (see Section 2.3.3 Undertaking a safeguarding enquiry).
Care and support needs
The decision to carry out a safeguarding enquiry does not depend on the adult’s eligibility to receive local authority services, and the duty extends to someone who is self-funding their care. There is no legal definition of care and support needs, each case needs to be dealt with and considered on its own set of facts. Care and support could be the mixture of practical, financial and emotional support for adults who need extra help to manage their lives and be independent, for example accommodation in a care home, care and support in the community, health or social care professional support.
Where the adult does not meet the criteria as outlined in Section 42 of the Care Act, the local authority is not required by law to carry out a safeguarding enquiry. However the local authority may do so at its own discretion if the local authority believes it is proportionate to do so, and it will promote the adult’s wellbeing and support a preventative agenda. Situations in which the local authority may decide to use its discretionary power to undertake a safeguarding enquiry could include:
- where a concern is raised which does not trigger a response under Section 42, but the significant level of risk warrants a response under safeguarding procedures, or,
- where an adult has passed away, but an enquiry into the concerns raised is still required due to potential risk to others. (A referral for a Safeguarding Adults Review should also be considered. Refer to the Sussex SAR Protocol).
If the local authority considers that the duty is not triggered to undertake an enquiry, the person making this decision must record their decision making as to why there was not reasonable cause to suspect that the three key tests were met. The local authority will consider any other appropriate actions to support the adult, for example the provision of preventative services, providing advice and support or carrying out an assessment of need.
A Safeguarding Enquiry
A safeguarding enquiry is any action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place.
The purpose of the safeguarding enquiry is to establish with the adult and / or their representative(s) what action, if any, is required in relation to the concern and who should take such action. The first priority should always be to ensure the safety and well-being of the adult. However this should be carefully balanced with the adult’s views and wishes and any risks to others. The adult should experience the safeguarding process as empowering and supportive.
The specific objectives of an enquiry into abuse or neglect are to, where possible:
- Establish facts.
- Ascertain the adult’s views, wishes and desired outcomes.
- Protect the adult from abuse or neglect, in accordance with their wishes.
- Assess the needs of the adult for protection, support and redress, and how these might be met.
- Make decisions as to what action should be taken with regard to the person or organisation thought to be the cause of risk.
- Enable the adult to achieve resolution and recovery.
It may transpire it was reasonably suspected the concern regarding the adult met the three key tests, but after closer examination as part of the enquiry, they do not. In these instances the enquiry can be concluded (See Section 2.3.11 Concluding a safeguarding enquiry).
Where there is risk of abuse or neglect, prompt action must be taken to ensure an effective response to the concern(s). The principle of ‘no delay’ emphasises that enquiries must be conducted in a timely way, and one which is proportionate to the presenting level of risk.
In practice, this means that the pace of the enquiry will be determined by the individual circumstances of the adult, the outcomes they wish to achieve and the risks involved.
At the outset of the enquiry the person coordinating the enquiry should determine what timescales are necessary to respond to the concern(s).
The following must always be in place:
- Clear systems for monitoring and reviewing the progress of enquiry actions to avoid undue delays. This is including where enquires are made by other organisations.
- Clear recording of the reasons for decisions regarding the timescales for enquiry and, if they need to be reviewed, the reasons for this, the adult’s views and agreements regarding this, and the measures in place to ensure the timescales will be achieved.
Availability of resources is not seen as an acceptable reason for delay where an adult is, or may be, experiencing abuse or neglect. There must also be clear and agreed local multi-agency escalation processes in place to address any delays should these occur.
Roles and responsibilities
The local authority has the lead co-ordinating role for safeguarding enquiries.
The local authority is responsible for:
- Ensuring that the enquiry is undertaken.
- Ensuring the enquiry meets required standards.
- Ensuring that any actions arising from the enquiry are completed.
At the point where a safeguarding enquiry is started, the local authority will appoint a Lead Enquiry Officer (LEO). Their overall role is to have responsibility for co-ordinating responses and decision making, and to ensure that enquiry actions are undertaken in accordance with Care Act duties and statutory guidance.
In order to address the safeguarding concern(s) and ongoing risks, an enquiry may require actions to be undertaken by a number of different individuals, practitioners and organisations. It is important that this is co-ordinated as effectively as possible, whilst maintaining a focus on the adult and the outcomes they want to achieve.
Skilled and knowledgeable supervision focused on outcomes for adults is critical in adult safeguarding. Managers have a central role in ensuring high standards of practice and that practitioners are properly equipped and supported. Local authorities will ensure arrangements are in place to ensure effective and regular practice supervision of the Lead Enquiry Officer, and to ensure that the enquiry meets legal duties and practice standards.
Responsibilities of other organisations and agencies
The Care Act recognises that safeguarding individuals requires multi-agency responsibility and emphasises the need for co-operation and partnership work. If there is a suspected crime then the police lead on all criminal investigations (see Section 2.4 Safeguarding and Criminal Investigations). Health related concerns should involve organisations such as the relevant Clinical Commissioning Group and / or Health Trust. Organisations and agencies are required to respond to safeguarding concerns, and undertake enquiries when these are requested by the local authority.
Inter-authority safeguarding arrangements
When a safeguarding concern is raised for an adult who is temporarily in a local authority area where they are not ordinarily resident or for an adult who has been placed in residential or nursing care in another local authority area, the host authority (i.e. the area where the abuse or neglect occurred) will take the lead in terms of responding to the safeguarding concern, using their local safeguarding adult procedures. The placing authority / Clinical Commissioning Group should be involved in, and contribute to, any enquiry undertaken. In certain situations, discussions will need to take place between the host and placing authorities as to who is best placed to take the lead in responding to the concern and coordinate any enquiry. For further guidance please refer to the Association of Directors of Adult Social Services (ADASS) Inter-authority Safeguarding Arrangements.
Where a safeguarding enquiry is being undertaken by a local authority and the adult moves to reside in another local authority then the local authority who is undertaking the enquiry will ensure contact is made with the new local authority to pass on any information as required, and agree roles and responsibilities in concluding the enquiry.
Young people moving into adulthood and care leavers (transition)
Where a concern of abuse relates to a person under 18 years, child protection procedures will apply. If the person is 17 years of age and about to become 18, discussion should be held between child protection and adult services regarding which service and procedures would be most appropriate to take forward the enquiry if one is required.
Robust joint working arrangements between Children’s Services and Adult Social Care need to be put in place to ensure that the medical, psychosocial and vocational needs of children leaving care are addressed as they move to adulthood.
The care needs of the young person should be at the forefront of any support planning and require a co-ordinated multi-agency approach. Assessments of care needs at this stage should include issues of safeguarding and risk. Care planning needs to ensure that the young adult’s safety is not put at risk through delays in providing the services they need to maintain their independence, well-being and choice.
2.3.3 Undertaking a safeguarding enquiry
When the local authority undertakes a safeguarding enquiry, it is important that the next steps are effectively planned and coordinated.
The purpose of planning the enquiry is to agree upon an action plan which clarifies the main focus of the enquiry, who should carry out specific actions, and within what timescales. Consideration must be given to the most proportionate and least intrusive response informed by the wishes of the adult and professional judgements about risks.
Planning should always consider a range of options. Action may be primarily supportive or therapeutic, or it may involve the application of civil orders, sanctions, regulatory activity, criminal prosecution, disciplinary action or de-registration from a professional body. Planning can include consideration of any modifications that may be required to services the adult is receiving, for example, making amendments to existing home care arrangements, such as a change of care worker or agency. Planning should also take into account any contingency arrangements required to respond effectively should the situation change or risks escalate.
A decision will need to be made as to whether a formal planning meeting is required (see Section 2.3.6 Safeguarding meetings), or whether a discussion, for example by telephone, will suffice. Planning should be seen as an ongoing process rather than a single event, and can be undertaken as a series of conversations or meetings with relevant people and agencies. In some cases the complexity of the situation will require a formal multi-agency meeting to be held.
2.3.4 Interface with other investigations and reviews
It may be necessary to consider whether the safeguarding enquiry meets the criteria for other investigations and reviews.
Investigations that may need to be co-ordinated with a safeguarding enquiry could include:
There may also be criminal investigation running concurrently with the safeguarding enquiry (see Section 2.4 Safeguarding and Criminal Investigations).
Serious Incident Investigations
Serious Incidents include acts or omissions occurring as part of NHS-funded healthcare (including in the community) that result in; unexpected or avoidable death, unexpected or avoidable injury resulting in serious harm or actual or alleged abuse; sexual abuse, physical or psychological ill-treatment, or acts of omission which constitute neglect, exploitation, financial or material abuse, discriminative and organisational abuse, self-neglect, domestic abuse, human trafficking and modern day slavery where:
- healthcare did not take appropriate action/intervention to safeguard against such abuse occurring or,
- where abuse occurred during the provision of NHS-funded care.
For further detail please see NHS England Serious Incident Framework.
Investigations carried out under the Serious Incident Framework are conducted for the purposes of learning to prevent recurrence.
Serious Incidents must be declared within the NHS by appropriate NHS staff as soon as possible and immediate action must be taken to establish the facts, ensure the safety of the patient(s), other services users and staff, and to secure all relevant evidence to support further investigation.
A number of events that are reported as a serious incident are often safeguarding concerns too (for example, neglect or poor care in a health setting). Whilst such incidents should always be a serious incident and reported as serious incidents they are also a safeguarding concern and a safeguarding referral must also be raised in line with these procedures.
The coordination of serious incident investigations and safeguarding enquiries requires shared understanding of each organisation’s statutory and legal responsibilities, effective communication, transparency, learning and co-operation across the multi-agency safeguarding adults’ partnership.
As the focus of a safeguarding enquiry is different from a serious incident investigation, the findings of one do not in itself determine the conclusions of the other. The Lead Enquiry Officer for the safeguarding enquiry and the lead practitioner undertaking the serious incident investigation must plan and co-ordinate the approach and tasks within these processes.
Child Protection and Safeguarding Procedures
If there are concerns about a child as well as an adult safeguarding enquiry, the Lead Enquiry Officer should link with the Children’s Services to agree any co-ordinated actions in line with both the Sussex Child Protection and Safeguarding Procedures and these Sussex Safeguarding Adults Procedures.
Reviews/investigations which may be undertaken following the death or significant injury of an individual
It is likely that a safeguarding enquiry would precede any decision making about the reviews below being undertaken, and information for safeguarding enquiries undertaken for that individual, or other affected individuals, may be shared as part of the review process.
Safeguarding Adults Reviews
Safeguarding Adults Reviews (SARs) are a statutory duty under the Care Act for Safeguarding Adults Boards to undertake. This is when:
- an adult dies as a result of abuse or neglect, whether known or suspected, and there is concern that partner agencies could have worked more effectively to protect the adult.
- an adult is still alive but has experienced serious neglect or abuse and there is concern that partner agencies could have worked more effectively to protect the adult.
For further information please see the Sussex SAR Protocol.
Serious Case Reviews concerning children
Local Safeguarding Children’s Boards undertake reviews of serious cases in specific circumstances, such as the death of a child where abuse or neglect are known or suspected, and advise on lessons to be learned.
Refer to the Sussex Child Protection and Safeguarding Procedures for more information.
Domestic Homicide Reviews
Domestic Homicide Reviews are statutory reviews, reviewing the circumstances in which the death of a person aged 16 or above appears to have resulted from domestic violence and abuse.
Coroners investigate deaths that have been reported to them if it appears that: the death was violent or unnatural; the cause of death is unknown, or the person died in prison, police custody, or another type of state detention. In these cases coroners must investigate to find out, for the benefit of bereaved people and for official records, who has died and how, when, and where they died.
If it is not possible to find out the cause of death from a post-mortem examination, or the death is found to be unnatural, the coroner has to hold an inquest. An inquest is a public court hearing held by the coroner in order to establish who died and how, when and where the death occurred. The coroner or jury also makes findings to allow the cause of death to be registered, such as ‘accident or misadventure’, ‘natural causes’, ‘unlawful killing’, ‘suicide’ or an ‘open’ verdict. The coroner or jury may also make a brief narrative conclusion setting out the facts surrounding the death in more detail and explaining the reasons for the decision.
Click here for a short guide to Coroner Investigations.
Multi Agency Public Protection Arrangements (MAPPA) Serious Case Reviews
If an offender subject to MAPPA commits a Serious Further Offence a MAPPA Serious Case Review is to be undertaken. The purpose of the MAPPA Serious Case Review is to examine whether the MAPPA arrangements were effectively applied and whether the agencies worked together to do all they reasonably could to manage effectively the risk of further offending in the community.
Please refer to the MAPPA Guidance for further information.
Mental Health Homicide Reviews
NHS England is responsible for commissioning independent investigations into homicides (sometimes referred to as mental health homicide reviews) that are committed by patients being treated for mental illness. Mental Health Homicide Reviews are undertaken under the NHS England Serious Incident Framework.
Learning Disabilities Mortality Review (LeDeR) Programme
The LeDeR programme has been established to support local areas to review deaths of people with learning disabilities, and to use the lessons learned to make improvements to service provision. All deaths of people with a learning disability, aged 4 years and over, may have an initial review, regardless of whether the death was expected or not.
Click on this link for the LeDeR programme for further information or contact your Clinical Commissioning Group Safeguarding Team and/or Local Area Contact for LeDeR.
2.3.5 Assessing and managing risks
The assessment and management of risk is an integral part of adult safeguarding. It should be dynamic and ongoing throughout the safeguarding enquiry and reviewed so that adjustments can be made in response to changes in the level and nature of risk. Practitioners should adopt a flexible and solution-focussed approach to mitigating risk.
Risk is often thought of in terms of danger, loss, threat, damage or injury. However in addition to the potentially negative characteristics, risk taking can have positive benefits for individual and their communities. As well as considering the potential harms associated with risk, the potential benefits of risk should also be identified.
Some people will need more support than others to make choices in relation to managing risks. Making risks clear and understood is crucial to empowering and safeguarding adults and in recognising people as ‘experts in their own lives’. Where an adult lacks capacity to make decisions about managing risks themselves, then the range of options identified should be discussed with the adult’s representative or advocate to enable the adult to stay in control of their life, as far as possible.
Risk assessments should encourage and support people in positive risk taking, and consider the following points:
- What steps are necessary to address immediate risks to the adult and others.
- The outcomes desired by the adult, or if the adult lacks capacity outcomes that reflect the best interests of the adult.
- Working in partnership with adults and their support networks, and recognising different perspectives and views on risk.
- Making decisions based on all the choices available and accurate information.
- Understanding a person’s strengths and finding creative ways for people to be able to do things rather than ruling them out.
- Learning from what has or has not worked in the past.
- Ensuring that services promote independence, not dependence.
Cases involving a high level of significant risk often require a multi-agency approach to sharing the responsibility for assessing and managing risk. Effective risk management is underpinned by clear and timely information sharing within and across organisations. Multi-agency risk management plans should be proportionate and focussed on preventing, reducing or eliminating the future risk of harm to the adult and / or others.
2.3.6 Safeguarding meetings
Safeguarding meetings may be the best way to ensure effective co-ordination of different aspects of an enquiry that relate directly to the adult or decisions that affect them.
There are circumstances when a meeting should be considered such as:
- Responding to self-neglect.
- Risk sharing and safety planning.
- Co-ordinating the response to safeguarding concerns and the quality of care provision.
- Co-ordinating criminal investigations and safeguarding enquiries.
- Reviewing outcomes and agreeing a safeguarding plan.
- Managing multiple safeguarding enquiries such as for organisational abuse.
Audio recordings of safeguarding meetings
It is not usual practice to record meetings using audio equipment. Notes of meetings are a reflection of key points, decisions and actions rather than a verbatim account. Notes of the meeting will be provided to all attendees with the opportunity to provide comments following the meeting.
2.3.7 The local authority causing others to make enquiries
The local authority has the lead co-ordinating role for all safeguarding enquiries but can cause enquiries to be made by another organisation or agency. Causing an enquiry to be made is distinct from requesting actions from another organisation as part of an enquiry being carried out by the local authority.
The specific circumstances will determine the right person to undertake the enquiry. This may be a professional who has already built up a relationship with the adult. In other situations the circumstances of the concern may require a professional with particular skills and knowledge, for example a health professional may be best placed to carry out an enquiry which needs to consider health elements, such as treatment plans relating to medication management or pressure damage.
The Lead Enquiry Officer must give clear direction to the person undertaking the enquiry verbally and in writing.
This should include:
- The nature, scope and purpose of the enquiry that the agency or organisation is being asked to undertake.
- How the adult’s outcomes will be identified, if not already known.
- How the adult will be advised of progress of the enquiry and who will be lead in communicating with the adult.
- The timescale for the enquiry.
- Assessment of presenting risks and how harm will be minimised.
- Who is responsible for monitoring, evaluating and reviewing the safeguarding or support plan for the adult or others, and evaluating the outcomes it is achieving.
- Any further guidance that may be required during the enquiry process.
The local authority could request a number of different organisations to make enquiries depending on the nature of the safeguarding concerns and if there is more than one adult affected by these.
The local authority retains accountability and oversight of the enquiry and outcomes – it cannot delegate its lead co-ordinating duty of enquiry to another organisation or agency.
Organisations and agencies asked to make enquiries by the local authority have a responsibility to:
- Take actions forward in a timely way.
- Feedback updates regarding progress.
- Feedback the outcome of their actions and enquiries to the adult.
- Notifying the person in the local authority who holds the function for managing allegations against people in a position of trust where this relates to a concern regarding a person who works with adults (paid, unpaid or student).
Once the enquiry is completed, the agency or organisation must return the required enquiry documentation to the Lead Enquiry Officer, within the agreed timescales.
The Lead Enquiry Officer should then:
- Confirm that the agreed plan for the enquiry has been completed.
- Decide and record if they are satisfied that the information provided by the organisation who has undertaken the enquiry is sufficient to conclude the enquiry in line with the checklist for concluding enquiries and if not what actions are required.
- Record the reasons for deciding that the enquiry can be concluded.
If the Lead Enquiry Officer considers that the process and / or outcome of the enquiry undertaken by another agency or organisation is unsatisfactory, they will ask for additional actions to be carried out.
Diagram 4: Causing Others to Undertake Safeguarding Enquiries
2.3.8 Safeguarding where there is a health / clinical concern
Where concerns about clinical / medical / nursing care have been raised, the local authority must discuss with the Clinical Commissioning Group Safeguarding team to decide who is best placed with the right clinical expertise and knowledge to make enquiries, and where advice can be sought.
When a safeguarding concern is raised to the local authority which involves a health care setting or a health care professional, the local authority co-ordinating the safeguarding enquiry must share the information about the concern, professional involved and enquiry to the relevant Clinical Commissioning Group. Clinical Commissioning Groups are the commissioners of NHS services including NHS Trusts.
Other circumstances in which the Clinical Commissioning Group should be informed by the local authority of the concern as soon as possible, include:
- Concerns raised regarding an NHS provider which involves more than one adult.
- Concerns regarding any provider of health care services where organisational abuse is suspected.
- Concerns involving a member of the Clinical Commissioning Group or Primary Care staff.
- Concerns regarding a healthcare provider or health care professional where there is police involvement.
In the case of concerns about care home, nursing homes and home care providers the Clinical Commissioning Group must be notified and advice sought on the clinical aspects of concerns. The Clinical Commissioning Group will offer clinical advice and scrutiny throughout the process, including at the initial stages of decision making.
See locally agreed pathways for accessing advice and expertise into safeguarding enquiries regarding healthcare settings or health care professionals.
2.3.9 Involving an adult in an enquiry
The adult should always be involved from the beginning of the enquiry, unless there are exceptional circumstances that would increase the risk of abuse or harm. The right to safety has to be balanced with other rights: such as rights to liberty and autonomy, and the right to family life.
The local authority must ensure that any restriction on the adult’s freedom or rights under the Human Rights Act 1998 is kept to the minimum necessary and is proportionate to the risk of harm. Any restrictions should be carefully considered and frequently reviewed.
Consent in relation to safeguarding enquiries
The duty for the local authority to undertake a safeguarding enquiry is triggered by the three key tests being met, and is not based on the consent of the adult. If the duty is met, then the adult is to be involved in the enquiry in order to give their views and wishes as to what actions they wish to be undertaken.
The adult may give the view that they do not wish for any actions to be taken within the enquiry.
There may be circumstances where actions are taken, such as information is shared with other appropriate agencies as part of a safeguarding enquiry, even though the adult has indicated that they do not wish for this to happen.
These circumstances could include:
- Others are, or will be, put at risk if nothing is done.
- Where it is in the public interest to take action because a criminal offence has occurred.
- The adult lacks capacity to understand the associated risks.
- The adult has capacity but cannot make a decision freely because of coercion or undue influence.
The adult should be informed of actions to be taken and reasons for this.
If it is suspected that a crime has occurred, this would need to be discussed with the police even if the adult has indicated that they do not wish to make a statement, or to have the police involved, or to have the person or service thought to be the cause of risk contacted. This should be approached sensitively and the adult should be advised of this.
Duty to arrange independent advocacy
Local authorities must involve people in decisions made about them and their care and support. No matter how complex a person’s needs, local authorities are required to help them express their wishes and feelings, support them in weighing up their options and assist them in making their own decisions.
Section 68 of the Care Act 2014 requires that a local authority must arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review (SAR). This should take place where any adult has ‘substantial difficulty’ in being involved in the safeguarding enquiry and where there is no other appropriate individual to support them. This should be kept under review throughout the enquiry.
The Care Act defines four areas where people may experience substantial difficulty. These are:
- understanding relevant information,
- retaining information,
- using or weighing up information,
- communicating views, wishes and feelings.
A family member or friend can advocate on behalf of the adult, if appropriate, but they cannot be:
- Already providing care or treatment to the adult in a professional capacity or on a paid basis.
- Someone the adult does not want to support them.
- Unavailable to adequately support the adult.
- Someone implicated in an enquiry into abuse or neglect, or who has been found by a Safeguarding Adults Review (SAR) to have failed to prevent abuse or neglect.
The role of an ‘appropriate individual’ under the Care Act is different from that of an individual with whom it is ‘appropriate to consult’ under the Mental Capacity Act. Under the Care Act, the appropriate individual’s role is to facilitate the adult’s involvement, not solely to consult them and make decisions on their behalf.
See local arrangements for referral pathways for advocacy.
Considerations regarding mental capacity
In line with the Mental Capacity Act 2005, there must be an underlying assumption that an adult has capacity to make relevant decisions themselves. Rather than making premature conclusions that an adult lacks capacity, the Mental Capacity Act emphasises that people may need support to reach decisions. Additionally the Mental Capacity Act sets out that when an adult lacks capacity, they must be encouraged and supported to continue to take part in decision making wherever possible, and their past and present wishes should be taken into account.
If there is doubt around the adult’s capacity, a formal mental capacity assessment should be completed to consider the adult’s understanding of the safeguarding concern and their ability to consent to a safeguarding enquiry. Where there is evidence that the adult lacks capacity the Mental Capacity Act Code of Practice should be followed and consideration given to involve an Independent Mental Capacity Act advocate if the adult has no one else suitable to support them.
2.3.10 Identifying outcomes
Conversations should happen with the adult at the earliest opportunity, enabling and supporting them to identify achievable outcomes so that their views, wishes, feelings and beliefs are central in decisions about how to proceed. A Making Safeguarding Personal approach is about talking through with people the options they have and what they want to do about their situation.
Asking questions such as “What do you want to happen?” “What is important to you?” “Is there anything that you do not want to happen?” is a helpful starting point, and is likely to result in more in-depth engagement at an early stage.
People cannot make decisions about their lives unless they know what the options are and what the implications of those options might be. A Making Safeguarding Personal approach needs to be applied throughout every stage of an enquiry.
Practitioners need to ensure that:
- Advice about advocacy is provided at the very start of an enquiry and arrangements made for independent representation and support, if required, as soon as possible.
- The adult and / or their advocate are fully involved from the outset.
- The pace and location of meetings are guided by the person’s needs and circumstances (see Section 2.3.6 Safeguarding meetings).
- Accessible information and advice is readily available.
- The adult and their advocate are made aware of a range of possible options / outcomes from an enquiry.
- Support is provided to help the adult make decisions where appropriate.
Engaging with adults in this way can give them a sense of control and raise their self-esteem so that they are able to rebuild their personal resilience and safeguard themselves in future.
Diagram 5: Types of Outcomes Which People May Want
Whilst most people do want to be safer, other outcomes may be as, or more important, such as maintaining relationships. An adult’s right to safety has to be balanced with other rights such as the right to liberty and autonomy, and rights to family life. Any intervention in family or personal relationships needs to be carefully considered, since the dynamics of these relationships can be complex. e.g., an adult may choose to be in a relationship that causes them harm and emotional distress, which outweighs for them the unhappiness of not maintaining the relationship.
An adult experiencing abuse or neglect may have difficult decisions to make and as such may need time to consider the risks involved and outcomes they want. Making risks and options clear and understandable is crucial to empowering and safeguarding adults and in recognising people as ‘experts in their own lives’.
Some people may be unclear as to what they would like to happen, and timely and skilled intervention may be required to help them express their views and wishes. Other people may want outcomes which are not possible to achieve. Open and honest discussions about why certain actions may not be achievable can help the adult to re-evaluate their views and consider other options.
Safeguarding interventions should be creative and flexible to take account of these differences. What an adult identifies at the outset may change as the enquiry progresses – perhaps because they become more aware of their options and feel more empowered to take control of their situation.
It is better to capture the adult’s outcomes in their own words or other means of communication, for example “I want to feel safe in my own home again”. Personalised outcomes are not conclusions to processes or service responses such as “The adult is receiving increased monitoring or care”.
The key focus is on developing a real understanding of what people wish to achieve, agreeing, negotiating and recording their desired outcomes, working out with them (and their representatives or advocates if they lack capacity) how best these outcomes may be realised.
The Making Safeguarding Personal Toolkit (4th edition, LGA 2015) contains resources for practitioners.
As with safeguarding planning, the review and evaluation of the adult’s outcomes should be done with the full participation of the adult and / or their representative, as well as any other relevant professionals and agencies.
When evaluating the adult’s needs for care and support, if a needs assessment under section 9 of the Care Act has not already taken place, it will be necessary to consider whether this should be offered.
In some cases, evaluating the outcomes of an enquiry and deciding on any further necessary action will be straightforward, and can be carried out through an informal discussion with the adult. However for other more complex cases that require careful consideration and negotiation with the adult and involved stakeholders, a formal multi-agency meeting may be necessary (see Section 2.3.6 Safeguarding meetings).
If it is identified during the outcomes review that the adult remains at risk of abuse and / or neglect, then the duty to enquire may continue and the outcomes review will need to consider any further enquiry actions.
In situations in which the adult remains at risk of abuse or neglect through their own choice, where possible, the local authority should agree with the adult how they are going to support them. Where this is not possible, the local authority and other agencies must agree any ongoing actions, underpinned by a Making Safeguarding Personal approach.
2.3.11 Working with the person thought to be the cause of risk
In undertaking the enquiry, there needs to be consideration of how best to involve a person thought to be the cause of risk taking into account any risks to the adult. If there is a criminal investigation the plan for this will be led by the police.
If the cause of risk is a person in a position of trust, this is covered by Section 2.5 Managing Allegations Against People in a Position of Trust. When a complaint or allegation has been made against a member of staff, including people employed by the adult, they should be made aware of their rights under employment legislation and any internal disciplinary procedures by their employer.
Any enquiry needs to be undertaken in an accountable and impartial manner. It should be considered how the person thought to be the cause of risk has an opportunity to give their views and respond to the concern, and how these views could be included and evaluated within the enquiry findings.
If the person thought to be the cause of risk is an adult with care and support needs of their own, consideration should be given to how their involvement in the enquiry process can be approached in the most person-centred and empowering way, taking account of their individual needs and situation. Particular consideration should be given regarding any support they may need to participate in the enquiry process.
Where the person who is alleged to have carried out the abuse has care and support needs themselves and is unable to understand the significance of questions put to them or their replies, they should be informed of their right to the support of an ‘appropriate’ adult if they are questioned in relation to a suspected crime by the police under the Police and Criminal Evidence Act 1984 (PACE) (see Section 2.4 Safeguarding and Criminal Investigations).
Suitable advocacy should be considered for people who lack capacity and who are alleged to be responsible for abuse, to support and represent them in the enquiries that are taking place.
Consideration should also be given to seeking advice from legal services regarding how appropriate it is to share information with the person or service thought to be the cause of risk, and / or other agencies that are responsible for safeguarding other adults who may be affected or at risk.
2.3.12 Concluding a safeguarding enquiry
The local authority can conclude the safeguarding enquiry whilst other related proceedings are ongoing, for example in relation to a police investigation or other disciplinary processes. In these situations the local authority should consider what monitoring arrangements are necessary and the required mechanisms for feeding back outcomes.
Were the adult’s desired outcomes achieved?
At the conclusion of each enquiry, the local authority should obtain direct feedback from the adult regarding their experience of the enquiry, in order to evaluate the impact of the safeguarding intervention, and to ascertain the difference this has made to the person’s life, in line with a Making Safeguarding Personal approach.
Feedback to relevant people
At the end of an enquiry the local authority is responsible for ensuring that feedback regarding the outcomes of the enquiry is passed to all those who should receive it including the adult, the person or service thought to be the cause of risk, and any other relevant agencies or organisations involved. This may include the referrer where relevant.
Checklist for completed enquiries
A Section 42 enquiry can be concluded when the local authority is satisfied that the following has taken place:
- The enquiry has included the views, wishes and best interests of the adult, and has been centred on their desired outcomes.
- The enquiry has aimed to meet the identified desired outcomes of the adult, and has been reviewed with the adult before the enquiry is closed.
- Consideration has been given to reflecting the views of the person or organisation thought to be the cause of risk within the enquiry if appropriate.
- Relevant information has been gathered and evaluated so that the cause/s of risk can be identified to prevent future abuse where possible.
- The enquiry has been thoroughly completed and accurately recorded.
- Where the service provider is the focus of the concern information has been passed to the relevant commissioner, Quality Monitoring Teams and the Care Quality Commission.
- Information has been shared, where appropriate and as necessary, with any other relevant parties.
- Where there has been serious injury to or the death of an adult, a Safeguarding Adults Review (SAR) referral was considered.
- Any recommended further actions, including referrals to professional bodies and/or the Disclosure and Barring Service, have been addressed.
- Where the risk cannot be reduced or removed there is consideration as to the ongoing arrangements (such as through a Support Plan or Safeguarding Plan). The plan should include arrangements for monitoring and review, including ongoing risk management.
This checklist should also be used as a guide by any agency or organisation the local authority has asked to undertake an enquiry under Section 42, to consider if it has concluded its enquiry appropriately, and has covered all the areas required in order to discharge its duty (see Section 2.3.7 The local authority causing others to make enquiries).