2.5 Safeguarding and Managing Allegations against People in Positions of Trust

This section sets out the safeguarding requirements for managing allegations against people in positions of trust and references the Care Act 2014 Statutory Guidance on Managing Allegations regarding a Person in a Position of Trust.

The Care Act 2014 requires the local authority, relevant partners and those providing care and support services to have clear policies in place for dealing with allegations against anyone working in a position of trust. These policies should clearly distinguish between an allegation, an issue that relates to conduct or behaviour, a practice concern, a complaint and a care quality issue.

A position of trust can be either a paid or unpaid role when working with adults with care and support needs. If anyone becomes aware of allegations about the conduct or behaviour of an individual in a position of trust, which might pose a risk to adults with care and support needs, they should raise a safeguarding concern with the local authority.

Whilst the focus of safeguarding adults work is to safeguard one or more identified adults with care and support needs, there are occasions when incidents are reported that do not involve any named adult at risk, but indicate concerns and a potential risk posed by a person in a position of trust. These concerns include incidents, behaviours, and investigations where the issue may have occurred outside of the person's workplace, and/or is a significant conduct issue for which further consideration needs to be made due to their professional or caring role for example.

References in this chapter to the Employer could also include Further Education establishments, religious organisations, charities and voluntary organisations.

Some allegations may indicate that a risk could be posed to an adult, or adults, with care and support needs by a person in a position of trust.

Examples of such concerns include allegations that a person in a position of trust has:

• behaved in a way that has abused, or may have abused an adult or child.
• possibly committed a criminal offence against, or related to, an adult or child
• behaved towards an adult, or child, in a way that indicates they may pose a risk of harm to adults with care and support needs.

The above is not an exhaustive list. It is expected that any concerns arising regarding a child would be reported to the appropriate children's service for the area and that communication is made with the Children's LADO (Local Authority Designated Officer) on all matters where a person may also be working or volunteering with children in any capacity, or potential risk is identified during the course of any other enquiries, which requires further consideration and risk assessment.

The Sussex Safeguarding Adults Boards advocate that local authorities and partner agencies establish a nominated lead to provide advice and guidance to their organisation regarding situations in which allegations are made regarding people in positions of trust. Across Sussex, local arrangements differ and in the case of query please approach your Safeguarding Lead/Head of Safeguarding Adults for clarity and signposting.

It is important to ensure in practice we consider allegations regarding people in a position of trust in the wider context where there may be public protection needs to consider, and risk assess, as partner agencies working together. Allegations regarding people who work with adults at risk must not be dealt with in isolation. Any corresponding action necessary to address the welfare of adults with care and support needs should be taken without delay and in a coordinated manner, to prevent the need for further safeguarding in future. 

Employers have both a duty to the adult with care and support needs and a responsibility to take action when allegations are made against an employee.

Individual organisations, including student bodies and voluntary organisations, are responsible for responding to allegations regarding any person working for them in a position of trust with adults with care and support needs and for undertaking all necessary action in line with their internal management process. Employers should ensure that they have robust employment practices in place, including reference checks and relevant Disclosure and Barring Service checks. Further information can be found here.   

Any disciplinary procedures must be compatible with their responsibility to protect adults at risk of abuse or neglect.

The specific responsibilities of employers include:

• Having a clear internal allegations management procedure in place which sets out the process, including timescales for investigation and support and advice which is available to individuals against whom allegations have been made.
• Codes of professional conduct and / or employment contracts should be followed and should inform management action.
• Ensuring senior leadership and those in management positions are appropriately familiar and confident with the responsibilities their organisation holds regarding both Disclosure and Barring Service (DBS) checks and referrals.
• Making prompt referrals to the Disclosure and Barring Service (DBS) and / or other professional registration bodies where appropriate. Further information can be found here. It is an offence to fail to make a referral without good reason.
• Maintaining records of the number and nature of allegations made, outcomes of enquiries/investigations and employers should use these to inform service improvement.
• Promoting and maintaining workforce awareness of its Whistleblowing policy.

The local authority has lead responsibility for the safeguarding enquiries undertaken, whilst the employer is responsible for investigating allegations involving its employees, informing the employee of the concerns if appropriate, and advising them what will happen in accordance with its management procedures. When an employer is taking action the local authority still has a duty under Section 42 of the Care Act 2014 to make (or cause to be made) whatever enquiries it thinks necessary to decide what, if any, action needs to be taken, and by whom. 

The local authority is not responsible for deciding what actions the employer should take with the employee, for example the local authority will not make recommendations to the employer regarding suspension of staff but rather advise the employer to make the necessary considerations. The local authority must be satisfied that the employer has followed its own appropriate procedures. The local authority should raise their concerns with the employer if appropriate actions have not been taken. If unresolved the local authority should escalate to the regulator and relevant commissioner if they are not assured that appropriate actions are being taken. The safeguarding enquiry should not delay the employer’s responsibilities to manage staff and make decisions about its staff member.

Where a Police investigation is required, the Police will lead the criminal investigation, and the local authority and employer will communicate with them regularly regarding any actions to be taken to ensure any criminal investigation is not compromised. Where there is indication of a criminal matter an early strategy meeting is advisable, to enable information to be shared between partners and the approach actions and communication strategy agreed.

A partnership approach to the sharing of information is advisable and the pan-Sussex information Sharing Guide and Protocol provides advice and guidance in relation to sharing information around adult safeguarding. The Information Sharing Guide and Protocol can be found here.

Decisions on sharing information must be justifiable and proportionate, based on the potential or actual harm to adults or children at risk and the rationale for decision-making should always be recorded. Any information which is shared should always be relevant to the allegation.

Where there is concern that there may be a public protection risk / pressing social care need, Common Law Police Disclosure exists to enable the Police to pass information to the employer or regulatory body to allow them to act swiftly to mitigate any danger.

Further information regarding Common Law Disclosures can be found here.

The employer remains responsible for employee investigations, and in most instances the local authority will request the employer to also undertake the safeguarding enquiry (see Section 2.3.7 The local authority causing others to make enquiries).  However, there may be situations where it is not appropriate for the employer to undertake the safeguarding enquiry due to a conflict of interest, for example, where there is no one with sufficient authority and independence in the employer organisation to undertake an enquiry. In this instance the local authority will undertake the safeguarding enquiry, but the employer retains responsibility for all actions regarding their employees.

Where the employer is the adult with care and support needs, such as employing a Personal Assistant, the local authority will undertake the safeguarding enquiry. They will support the adult in undertaking their employer responsibilities and enable support for the adult in undertaking their employer responsibilities, including where necessary by supporting the person to make a DBS referral where this is indicated. Further information can be found here.

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups, including adults or children. The Disclosure and Barring Service bars some people from working in a regulated service, and maintains a register of individuals barred from working with adults and children due to the risk(s) they pose to them. If a person is barred it becomes an offence for an organisation to knowingly engage that person in regulated activity.  Regulated activity is work (both paid and unpaid) with children at risk and adults with care and support needs.  In relation to adults with care and support needs, regulated activity in broad terms includes activities involved in providing:

• health care,
• personal care,
• social work,
• assistance with managing finances / handling money such as paying bills and / or shopping,
• assistance in the conduct of personal affairs. 

Employers and managers of volunteers working with people in regulated activity have a legal duty to make referrals to the Disclosure and Barring Service in circumstances where they have permanently removed a person from the regulated activity through dismissal or permanent transfer (or would have if the person had not left, resigned, retired or been made redundant) because the person has:

• been cautioned, arrested or convicted for a relevant offence, or,
• engaged in misconduct in relation to children or adults at risk – i.e. that an action or inaction (neglect) has harmed a child or adult or put them at risk of harm, or,
• satisfied the ‘Harm Test’ in relation to children or adults at risk – i.e. that there has been no relevant misconduct but a risk of harm to a child or adult still exists. 

If a person providing regulated activity is removed from their role following a safeguarding incident the employer has a legal duty to refer to the Disclosure and Barring Service. This would include the person being either dismissed or redeployed to a non-regulated activity, or they leave their role (resignation or retirement), and the employer or volunteer organisation feels they would have dismissed the person based on the information they hold. If the person has been recruited through an agency or personnel supplier then the legal duty sits with that agency. 

Where it is necessary to refer individual employees to the Disclosure and Barring Service and / or the relevant professional body, they will be made promptly and as soon as possible once the investigation has been concluded.

Where there is felt to be a public protection risk this should be considered as far as possible and necessary before the enquiry or police investigation is concluded.

Where the need for a referral to the Disclosure and Barring Service has been agreed as part of a safeguarding enquiry being led by the local authority, confirmation should be provided to the local authority that the action has been completed. It is usual practice for the Lead Enquiry Officer to check this with the employer. As the responsible authority for adult safeguarding, the local authority has the power to make a referral where the relevant criteria are met, and should do so where it is necessary to ensure an appropriate referral has been made.

It is the Disclosure and Barring Service’s decision regarding whether the person should be placed upon the list of those barred from working with adults and / or children.  The Disclosure and Barring Service will contact the person directly to inform them that they have received a referral, and will share all information provided to them with the person, along with any other information they may have received from other sources as part of their decision making process.

The full guidance regarding referrals to the Disclosure and Barring Service can be found here.

The Disclosure and Barring Service has issued Guidance for Local Authorities and regulatory bodies about the duty and power to refer a person to the DBS and this guidance is available here.

Where the conduct of a person registered with a professional body has been the subject of an enquiry, a referral to that professional body should be considered. Professional bodies could include: the Health and Care Professions Council (HCPC), Nursing and Midwifery Council (NMC) and General Medical Council (GMC). In the case of clinical posts please ensure that the local CCG Designated Safeguarding team are aware, seeking advice where required regarding the appropriate professional body that will need to be notified.

Each professional registration body:

• Maintains a public register of qualified workers.
• Sets standards for conduct, performance and ethics.
• Considers allegations of misconduct, lack of competence or unfitness to practice.
• Makes decisions as to whether a registered worker can practice.

Notification of a professional body is the responsibility of the employer. Where this action has been agreed as part of a safeguarding enquiry being led by the local authority, confirmation should be provided to the local authority that the action has been completed.  As the responsible authority for adult safeguarding, the local authority may make a referral where the relevant criteria are met, and should do so where it is necessary to ensure an appropriate referral has been made.

Professional bodies will follow their own investigation procedures and it is their decision regarding whether any action will be taken in relation to the person’s professional registration. Professional bodies have a range of options where appropriate; these usually include suspending the person from practice, de-registering them or imposing conditions of practice that the person must work under. 

Professional bodies will contact the person directly to inform them that they have received a referral and will share all information provided to them with the person, along with any other information they may have received from other sources as part of their decision making process.