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Safeguarding and regulation in the charity sector

DAC Beachcroft has recently reported on the challenges faced by charities in the social care sector in terms of safeguarding, the role the regulators play, and how they are working to deliver on a complex matrix of obligations. Here, Alistair Robertson, Partner and expert in Charity Law at DAC Beachcroft, shares the report’s findings in more detail.

Charity sector health and social care providers are facing increasing demand for their services and are playing an ever more vital role in early intervention schemes, community care and the development of integrated services.

Alongside these new responsibilities, they are also facing a higher level of scrutiny and more punitive measures from regulators.

The Care Quality Commission (CQC) estimates that charities and other third sector organisations are responsible for delivering around a fifth of care services in England. According to its State of Care report 2017/18, more than three-quarters of NHS and independent community providers (including charities) are providing ‘Good’ care.

However, there are many challenges facing the sector, including funding cuts and high staff turnover, which impact safeguarding, training and leadership. And with charities providing care and support predicted to be increasingly relied upon, they will need to ensure their organisational procedures satisfy both CQC and the Charity Commission.

The role of the regulators

Currently, charities must duplicate certain information they are required to provide to both regulators. This is a costly and time-consuming burden, and increases the risk of discrepancies in the information itself and the way in which the regulators deal with it.

Looking specifically at safeguarding, this means that charities must be able to demonstrate to both regulators that they have strong systems in place to ensure they can identify and act upon safeguarding issues and that they can (and do) collect and act on feedback from clients to ensure services are improved. This is not straightforward, as the two regulators currently do not define ‘safeguarding incidents’ in the same way – which means one incident may have two different definitions according to each regulator and therefore require a different response.

With this in mind, the leaders who took part in our report, including Chairs, Chief Executives and Directors of social care charities, are calling for a more joined-up approach in this area from both CQC and the Charity Commission. One leader commented that, ‘It would be good if the two bodies got to a point where they could say, “this is what we commonly see as an incident” rather than people doing one thing for one regulatory body and one for another.’

The Charity Commission and CQC directly respond to points raised in the report. The Commission states that in relevant cases it works closely with CQC to share information and resolve concerns, prioritising the needs of the case and the individuals involved.

CQC comments that safeguarding arrangements and alert thresholds are managed by local authority safeguarding teams, writing, ‘Safeguarding teams typically provide or signpost training and development opportunities for services in local areas. We are not currently involved in determining thresholds with the Charity Commission.’ The discrepancy between the two regulators’ definitions of safeguarding incidents, means a difference in approach in provider’s response is required. A more joined-up approach would mean less duplication in charities reporting on, and responding to, incidents.

CQC also notes that it is the ‘commissioners and providers [that] need to be clear and distinct about “serious incidents”, “serious safeguarding incidents” and “safeguarding” – which may not be one and the same.’

The Charity Commission does state in the report that, ‘To formalise our way of working, we are in the process of preparing a memorandum of understanding (MOU) [with CQC], setting out the terms of our joint working.’ But for now, it’s status quo: trustees must report serious incidents in line with Charity Commission guidance, even if it has to be reported again to CQC – or multiple other regulators.

In future, the role of the regulator is likely to evolve in line with the different demands on the sector, and there is evidence that regulators are becoming more punitive, particularly with providers working with vulnerable groups, and even more so with those in the mental health and learning disability sectors. CQC is increasingly interested in assessing whether services, and the organisations providing them, are Well-led.

Where it finds evidence of client-safety related offences, it has not shied away from sanctions – including fines and criminal convictions. And the Charity Commission wants to provide more evidence of the impact it is making, and is also taking an increasingly interventionist approach, evidenced by its recent successful court application for finding contempt of court against two former trustees who failed to comply with an order to supply evidence and documentation to the regulator.

Safeguarding in practice

Many charities are setting good standards when it comes to overcoming the regulatory challenges in safeguarding and are working to improve their practices.

CQC’s assessment framework makes it clear that providers must introduce effective arrangements for managing safeguarding, complaints and feedback from clients, and how this will feed into their quality and risk assurance arrangements.

CQC says charities must demonstrate that their feedback systems enable the involvement of service users when considering lessons learned, and that they take part in ‘iterative, co-produced improvement’ of services.

The Charity Commission expects charities to deliver their charitable work, ‘Not just through their activities, but through their behaviour too.’ A spokesperson explains that, ‘Managing complaints and concerns appropriately, reporting serious incidents and being honest when things go wrong is an intrinsic part of this approach.’

Leaders we spoke to felt that key to their ability to demonstrate effective safety and governance to the regulators was their own capacity to implement good safeguarding practices and create a culture that supports this. One noted that, ‘It’s about setting the tone right at the top of the organisation, working on the basis that there are leaders at every level, and clear policies and frameworks for people to work within.’

However, concerns were raised from some quarters that safeguarding training is not always viewed as a priority by boards, and can even be seen as a wasted investment due to high turnover of workers and short-term volunteers.

The leaders we spoke to also felt that seeking to prioritise a culture of honesty and openness was an essential part of improving safeguarding practices, and this included offering a range of feedback options for employees and volunteers. They noted that robust whistle-blowing procedures and an open culture of speaking out can generate insights for leaders, and all of the report’s contributors believed a ‘no blame’ culture was key to putting safeguarding at the centre of their organisation.

They emphasised this point on culture when it came to organisations with multiple sites or remote locations. To ensure safety and good feedback from remote sites, their advice is to nurture and educate leaders at every level to avoid blame culture; one contributor commented that, ‘Giving people the confidence to report because they know it won’t mean “off with their heads”’ is a critical part of safeguarding in these environments.’

Another participant noted that, ‘Having lots of routes for feedback to the organisation, whether that be independent whistle-blowing lines, management oversight, listening to customers…or staff surveys [offers] rich sources of insight and smart leaders make sure that all insight is available to help them deliver.’
Ultimately, it is about giving everyone a role in the safeguarding of individuals. However, it is also vital that charities don’t simply collate the insights and data they gather, but act on this to satisfy the regulators and validate the culture of safeguarding.

Measuring impact

As one leader put it, senior leaders should be alert to the danger that feedback collection should not just come down to an ‘exercise in quotas’ – it needs to be more meaningful than this. It is important that charities know how to use the data they collect from feedback to effectively measure impact. They can then successfully act upon these insights and improve safeguarding where necessary.

Strong data infrastructure can feel like a ‘nice to have’ for cash-strapped charities, but it is vital in limiting the risk of safeguarding failures by helping to create an informed, open and honest culture at every level of the organisation. Large and geographically-diverse organisations in particular can lose their grip on how their services are performing if they do not have really strong data-reporting systems. Skimping on this can be a real false economy as the reporting requirements for safeguarding differ for each regulator.

The leaders who took part in the report explained how they use their collected feedback to drive a safer culture, measuring both the good and the bad in their organisations. Looking at the whole picture helps them drive measurable improvements, and organised data around compliments and complaints demonstrates to regulators that the service has robust systems in place to identify and act on safeguarding issues.

Ultimately, combining evaluation reporting and safeguarding reporting into a single set of mechanisms can ensure an organisation has a real understanding of its activities.

Charities pride themselves on being more fleet of foot than other sectors, but more agile methodologies for developing new service lines and policy initiatives don’t always include consideration of safeguarding.
It’s not always instinctive to design-in safeguarding in the same way that you would if a project were built at a slower pace. Charities should think about how and when they build in safeguarding as soon as they start working with people.

This is a question of culture and a shared vision of ‘safety first and impact first’. It will also be determined by the direction of the regulators, who demand that strong systems are in place to ensure the safeguarding of people, and proficient delivery of care.

Alistair Roberston is Partner at DAC Beachcroft. Email: Twitter: @healthlawuk

What do you think the regulators can do in terms of joined-up working to create a better system for all? Share your thoughts below.

Find out more
Charities providing healthcare: leadership, safety and governance collates the insight and experience of charity sector providers around the challenges they face when it comes to safeguarding. Download the full report.

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