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Adult Safeguarding: It’s the law! Today’s theme for National Adult Safeguarding Week is “Understanding Legislation”. Here are some thoughts on adult safeguarding and the law (in England – other parts of the UK have their own arrangements) #SafeguardingAdultsWeek (Thread) (1)
For Adult Social Care, “Safeguarding” means something more than just people’s ensuring people’s wellbeing. It’s about what we do in response to abuse and neglect of someone with care and support needs (2)
(By the way, we ARE interested in people’s wellbeing, and there is law about that, like section 1 and section 9 of the Care Act 2014. But for us, adult safeguarding is about other things) (3)
Section 42 of the Care Act 2014 says what a local authority that has Adult Social Care responsibilities, like Surrey County Council, has to do when certain circumstances arise. What are those circumstances? Let’s take a look: (4)
First off, the local authority has to have “Reasonable cause to suspect …” Seems straightforward, right? Maybe. How much cause is reasonable will have to be decided case-by-case (5)
What’s next? “… an adult …”. So it has to be someone 18 years old or more. Abuse and neglect issues for someone younger is a safeguarding children issue. And it is their age at the time the abuse or neglect happened that counts, not their age today. (6)
And it has to be “an adult in its area (whether or not ordinarily resident there)”. Two things about that (a) it includes people temporarily in the area, visiting or maybe even just passing through (7)
And (b) for someone living in, say, a care home which was arranged by another local authority, different local authorities may owe duties to the same person, one under s9 Care Act and one s42 Care Act (8)
Any adult? No. Three criteria have to be met. The first is that it has to be an adult who “has needs for care and support”. (9)
Great. So I just look up the definition in the Care Act 2014 of “care and support needs” them? Nope. There isn’t one. (10)
OK, so I look up the definition of “care and support needs” in the Care and Support statutory guidance, then? Nope. Not one there, either. (11)
Closest thing to a definition may be in the Care and Support (Eligibility Criteria) Regulations. They describe both the nature and degree of a person’s needs for them to be eligible for the local authority to arrange services (12)
But s42 Care Act duties can apply to anyone with care and support needs, not just those who have “eligible” needs, so the degree of the need isn’t relevant. We can just go with what the Regulations say about the nature of care and support needs. (13)
Which is that the needs are because of a physical or mental impairment or illness. And that they have some impact on at least one of 10 specified outcomes such as “maintaining personal hygiene” (14)
I think that until we have some case law on it, or a rewrite of the Care and Support Statutory Guidance that adds one, that is about as close we can get to a definition of “Care and Support needs” (15)
What’s next? The adult must be “experiencing, or is at risk of, abuse or neglect”. No need for any harm. Nothing needs to have happened. Risk alone is enough. That’s a low threshold compared to, say, the “significant harm” test in s47 Children Act (16)
The third criteria: The person has to be unable to protect themselves from the risk of abuse because of their care and support needs. This can be the trickiest one, to the extent that … (17)
… Local Government Association and Association of Directors of Adult Social Services' guidance to someone deciding whether to refer an adult safeguarding concern says don’t worry about this one and leave it to the local authority to decide (18)
So if all three of those criteria are met, then there must be an adult safeguarding enquiry. If one or more are not met, then there can’t be. (19)
Why can’t there be? Because s42 Care Act only includes the duty dependent on those criteria being met. This contrasts with s44 Care Act (which is about when Safeguarding Adults Board arrange for Safeguarding Adults Reviews (20)
S44 Care Act has a duty tied to specific criteria, like s42 Care Act. Unlike it, it also gives Boards a discretionary power to arrange a SAR for any other case involving an adult with care and support needs. (21)
S42 Care Act does not include a discretionary power, so local authorities can only do adult safeguarding enquiries when the s42 Care Act criteria are met (22)
Paragraph 14.44 of the Care and Support guidance says local authorities can do adult safeguarding enquiries even if the s42 criteria are not met. I’m not sure I believe that – it’s not what the Act say, and guidance can’t create powers out of thin air (23)
So if the criteria are met, there must be an adult safeguarding enquiry. But the local authority might not do all the leg work itself. S42 Care Act says it “must make (or cause to be made) whatever enquiries it thinks necessary” (24)
That give a lot of wiggle room. Adult safeguarding enquiries can be whatever the local authority decides is “necessary”. So they can be as big or as little as needed. Are there any limits? Yes. There’s two (25)
The first is in s42 Care Act. The purpose of the enquiry is “to enable the local authority to decide whether any action should be taken and, if so, what and by whom”. So the enquiry has to involve whatever is needed to allow that decision to be made (26)
(by the way, see the difference here between s42 Care Act and s47 Children Act – In s47 the local authority decides what it will do. In s42 Care Act it decides what anyone will do. Much more extensive powers) (27)
The second limitation is that the enquiry must meet the objectives listed in 14.94 Care and Support statutory guidance. And that is an interesting list. It includes “establish facts”, and “protect [the adult] from the abuse and neglect” (28)
But it also includes “make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect”. (29)
People sometimes say adult safeguarding work should be “blame free” or “about learning”, but it seems to me that objective puts accountability and justice issues at the heart of the local authority’s role in an adult safeguarding enquiry (30)
But what does a local authority actually do when it does an adult safeguarding enquiry? This is another thing the Care Act and the Care and Support guidance don’t tell you. You can read them and come away none the wiser about what is actually involved (31)
Which is why in Surrey our local Safeguarding Adults Board includes the “Surrey Safeguarding Adults Enquiry Method” in its procedures. It’s a simple Plan-Do-Review model that sets out the essential elements of good practice in adult safeguarding enquiries (32)
Two good practice essentials I would highlight: (a) Answer the “what are we worried about” question – if you can't describe in clear, simple, concrete terms what the concern is, your enquiry is unlikely to be effective (33)
And (b) Generate hypotheses – come up with at least three narratives for what may have happened. That will help you plan a thorough enquiry, and reduce the risk of cognitive biases and hidden narratives and assumptions sabotaging your work (34)
But back to the law: Local authorities often have two duties when there is an adult safeguarding concern. S42 Care Act duty to ensure enquiries are made is the obvious one, but there is another and it is sometimes overlooked (35)
For a s42 duty to apply, we have seen that the adult must have care and support needs. But another duty kicks in for adults with care and support needs, the duty under s9 Care Act to assess those needs (36)
An s9 and s42 Care Act are linked by s11 Care Act. It says that an adult with care and support needs can decline to be assessed, and that discharges the local authority’s duty to carry out that assessment. Seems fair enough (37)
The state shouldn’t arbitrarily imposing itself. But s11(2) Care Act says 2 categories of people cannot refuse assessment under s9 Care Act. The first is people who lack mental capacity to make that decision – that’s just restating the Mental Capacity Act (38)
The other category of people is adults with care and support needs who are experiencing or at risk of abuse or neglect. That is a lower threshold that s42 Care Act duties, as it only includes two of the three criteria in s42 Care Act (39)
I think this can get overlooked because the Care Act isn’t written in very user-friendly language and, though it is covered in the stat guidance at para 6.20, this in the section on assessment. It doesn’t get mentioned in the section on adult safeguarding. (40)
But it is clearly linked to the objectives in 14.94 of the statutory guidance, as one of those is to “assess the needs of the adult for protection, support and redress”. How else do you assess the needs of an adult with care and support needs … (41)
… if it isn’t through a s9 Care Act assessment? Does this mean every adult safeguarding enquiry ought to include a s9 Care Act assessment? Again, in the absence of clearer guidance or case law on this, I don’t know (42)
But I would suggest that anyone in a local authority making decisions under s42 Care Act would need to have s11(2)(b) Care Act in mind, and know why, if the enquiry doesn’t involve a s9 Care Act assessment … (43)
… that there is a good reason for this. Particularly if there isn’t an existing up-to-date assessment and care and support plan. (43)
OK that’s my whistle-stop tour around some adult safeguarding law. Any questions or comments? Let me know, especially if you think I may have got something wrong. Looking forward to what’s still to come this #SafeguardingAdultsWeek (44)
