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Protecting people: The case for reforming safeguarding

How much progress has been made in relation to safeguarding laws and policy for older people in care? Neil Grant of Gordons Partnership Solicitors makes the case for reform.

The safeguarding duties on local authorities under the Care Act 2014 were never relaxed during the pandemic as they were seen as vital public functions, all the more so during a time of national emergency. However, safeguarding teams were reminded by the Government of the need to act in a proportionate manner given the pressure social care providers were under due to COVID-19.

Safeguarding data

The most recent data on safeguarding, collected by Safeguarding Adults Collection (SAC), shows that the number of safeguarding concerns referred to local authorities in 2020/21 increased by 5% on the previous year to 498,260. Of these, 152,270 proceeded to a section 42 enquiry under the Care Act, representing a decrease of 6% on the previous year.

It is perhaps surprising that the overall number of section 42 enquiries fell during the first year of the pandemic when overall numbers of safeguarding referrals increased. The SAC does not try to provide any explanation for the drop, which is hardly surprising given that it acknowledges that ‘limitations remain around interpretation and usage of data due to local variation in how safeguarding is defined and reported…There is a significant degree of variation between local authorities for certain measures. In many instances this variation will result from differing interpretations of the Care Act (2014) and different practices by local authorities, rather than from poor data quality per se.’

The Care Act

Section 42 sets out the statutory duties in respect of local authority safeguarding investigations and enquiries. These have been in place since April 2015.

First, the local authority must have reasonable cause to suspect that an adult in its area:

  1. Has needs for care and support (whether or not the authority is meeting any of those needs).
  2. Is experiencing, or is at risk of, abuse or neglect.
  3. And, as a result of those needs, is unable to protect himself or herself against the abuse or neglect or the risk of it.

The local authority should carry out initial investigations to see if these criteria are met in relation to a safeguarding referral. If criteria one and two are met but not three, then it does not need to proceed to a section 42 enquiry. It will, however, amount to a safeguarding concern for reporting purposes under the SAC. Some referrals which do not proceed to a section 42 enquiry will still be the subject of enquiry by the local authority and are categorised as ‘other’ by the SAC. In 2020/21 there were 16,690 ‘other’ safeguarding enquiries, representing an increase of 7% on the previous year.

If the three criteria are present, the local authority is obliged to make whatever enquiries it thinks are necessary to decide whether any action should be taken in the adult’s case and, if so, what and by whom. The local authority may investigate the matter or get another body to make enquiries such as the police or care provider.

An opportunity lost

With the passage of the Care Bill, the Government had an opportunity to put in place a consistent statutory framework for how section 42 safeguarding enquiries should be conducted across the country. Clear procedural requirements and national standards could and should have been set in regulations. Instead, the Care and Support Statutory Guidance issued in respect of safeguarding adults under the Care Act simply refers to the operation of local inter-agency safeguarding policies and procedures, which was a continuation of the position that existed before April 2015.

Inconsistency across the country

Local authorities have continued to apply their own interpretation of the legislation and statutory guidance in relation to safeguarding referrals, investigations and enquiries with the result that there is no one approach across the country. This is starkly exemplified by the different thresholds applied by local authorities in terms of what needs to be referred as a safeguarding concern. All local authorities are supposed to issue threshold guidance on what needs to be referred but many do not. The result is muddle and uncertainty. In contrast, in Wales there is an All-Wales procedure where all local authorities follow the same procedural rules and referral thresholds.

Karen Davies-Read, a Care Consultant, who until recently was the Director of Safeguarding at Sunrise Senior Living and Gracewell Healthcare, writes, ‘Throughout England, local authorities have applied their own interpretation of the Care Act into local procedures and as a result there are widespread differences in terms of practice. For providers of care homes who are geographically diverse, this means that their services are required to follow differing policies and procedures depending on their local authority location. Some local authorities provide threshold guidance and others do not.

‘From a provider’s point of view, a considerable amount of consultation is necessary to establish what should be referred to their local safeguarding team. Some safeguarding teams require referrals for unwitnessed falls even when there has been no injury and irrespective of whether the individual has or does not have the capacity to explain what happened, whereas others only expect a referral where an injury has been sustained.

‘There are also variations in terms of what is expected to be reported in relation to medication errors. Some local authorities only want referrals where there is actual harm or a risk of harm; other local authorities want all medication errors referred to them under safeguarding. There are similar differences in relation to reporting physical altercations between residents – some safeguarding teams only want referrals where there has been injury; others insist on referrals even when there has been no injury.’

It is unacceptable that there is such variation in how safeguarding teams interpret what is a safeguarding concern. Urgent attention needs to be given to this problem to ensure there is consistency across England to further the protection of vulnerable adults.

 

The Local Government Association and the Association of Directors of Adult Social Services have attempted to address the variation across England in their publication Making Decisions on the Duty to Carry Out Safeguarding Adults Enquiries (August 2019). The SAC for 2020/21 refers to this framework, saying, ‘It is hoped [it] will reduce local variation.’ However, it is only offering a framework. It is up to local authorities whether they implement it and follow it.

The pandemic and safeguarding

There were delays in councils completing safeguarding enquiries during the first year of the pandemic, and an increased reliance on providers to undertake enquiries. The public function that had already been weakened by years of austerity cuts struggled to cope with the additional pressures brought about by the pandemic.

Karen Davies-Read notes, ‘During the pandemic the element of collaborative working reduced in relation to safeguarding. Referrals were submitted but with little response being received. The rationale initially was that everything had slowed down due to the impact of the pandemic whilst new systems and processes were being put in place, but from March 2020 a void developed where some local authorities were unable to respond in a timely manner due to restricted manpower as a direct result of the pandemic.’

In addition, safeguarding failed to address concerns in relation to the blatant unsafe discharges of patients into care homes without prior COVID-19 testing at the beginning of the pandemic. This was not seen as a priority by safeguarding and nor were the risks of this activity given proper consideration by the NHS at that time. The entire focus was on discharging people to care homes to ‘save the NHS’.

As Karen Davies-Read recalls, ‘Many care homes experienced the pressure of automatic discharges and the transfer of new patients without the required care assessments for planned care delivery being in place or the necessary risks being identified and reduced. During this initial period, the regulatory requirement of assessing care levels prior to admission into a care home was often ignored.

‘This subsequently changed to internal assessments being completed by NHS staff pre-transfer. These were not always accurate and in some cases were disingenuous. Many providers refused these types of admissions in order to ensure the safety and wellbeing of their existing resident group. Some were threatened with safeguarding referrals against them (none that I am aware of came to fruition, however this was a very real threat to managers) and with being reported to the regulator. Some discharges went ahead without any pre-discussions or agreements.

‘The tactics used were unnecessarily persecutory and underhand. Safeguarding teams in the local authorities were not active in addressing or even considering cases such as these; often issues relating to NHS concerns were passed to NHS safeguarding teams, with no responses or outcomes received by the providers.’

Safeguarding seems to be something that is done to care providers with little sense of collaborative working. Failures by other agencies appear to be ignored, particularly when the NHS is involved. This should be an issue for the COVID-19 Public Inquiry to consider.

Conclusion

Currently there appears to be little accountability in relation to how local authorities carry out their safeguarding functions in England. In theory, a provider can apply to the High Court for leave to judicially review a local authority if there are procedural failings. However, that is a time-consuming and expensive exercise and, consequently, very few challenges have ever been brought. A complaint can also be lodged but the tendency is for the local authority complaint handlers to side with their own employer, unsurprisingly.

Under the Health and Social Care Bill, CQC is to assume a statutory role in overseeing how local authorities carry out their Part 1, Care Act responsibilities. Part 1 includes safeguarding adults. CQC will also be regulating Integrated Care Systems. At the end of the CQC Board meeting on 15th December 2021, Rosie Benneyworth, Chief Inspector of Primary Medical Services and Integrated Care, responded to a question from a member of the public about safeguarding by saying, ‘As we develop our regulation of ICSs and Local Authority Assurance, an area of consideration will include how we could examine safeguarding.’

CQC scrutiny of the current safeguarding framework would be welcome as it is not fit for purpose. A key priority for CQC should be addressing the inconsistency in how local authorities decide whether something is a safeguarding concern under the Care Act, as well as the variability in the quality and timeliness of section 42 enquiries. It is hoped that CQC’s proposed statutory assurance role under the Care Act will lead to genuine change in how safeguarding is operated nationally to avoid another missed opportunity.

The author would like to thank Karen Davies-Read, Care Consultant, for her contribution to this article.


Neil Grant is a Partner at Gordons Partnership Solicitors. Email: neil@gordonsols.co.uk Twitter: @GordonsPartners

In what ways has the pandemic impacted on your safeguarding practices? Share your views and opinions on this feature in the comments section below.

About Neil Grant

Based in Guildford with Gordons Partnership Solicitors, Neil Grant has worked as a regulatory lawyer in the health and social care sector for twenty-eight years. Over that time, he has developed a national reputation. Neil only acts for providers, not regulators or commissioners. However, his advice is informed by having acted in the past for inspectorates and other public bodies at a very senior level, including the Care Quality Commission in its early days.

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