The Response to a Concern about Abuse or Neglect

1. Responding to concerns about Abuse or Neglect

Considerations when deciding how to respond

The Care Act statutory guidance is clear that the Local Authority should:

1. Acknowledge that abuse and neglect can occur in many ways and the same type of abuse can have a different effect on one person when compared to another. Hence it is not appropriate to have set responses based on the type of abuse that has occurred and the response should be based on the effect on the person.

2. Take a historical view and consider whether the abuse or neglect may have been endured on more than one occasion by the person, and if so what previous responses were (and how effective they were) and what the effect of the whole period of abuse has been for the person; and

3. Consider the abuse or neglect in a wider context to identify whether other people may be at risk (either in the same setting or in a different setting) or whether a serial abuser may be at the heart of the abuse.

Potential Responses

After considering all of the information available the Local Authority must decide how to respond. This could be through a single method or a combination of methods and could include:

1. The provision of information and advice (relating to the risk of abuse and how the person may protect themselves, the presenting issues of the situation e.g. financial advice or any other Care and Support matter). The Local Authority has a duty under the Care Act to provide good information and advice whenever it is needed. For more information about the information and advice that must be given and the way that it must be given see Providing Information and Advice;
2. A referral to police where a criminal act appears to have taken place (for example theft or assault). Referrals to the police can only be made when the person has given consent (or for people who lack capacity where a best interests decision has been made to this effect) or where a referral to the police is in the public interest (normally where other people are at risk);
3. A referral to another service, for example an NHS service (for example community nursing) or a specialist support organisation (for example Women's Aid);
4. A referral to another adult Care and Support service (for example a prevention service or a service that is able to carry out a needs assessment or a carers assessment);
5. An Enquiry under Section 42 of the Care Act (where further information gathering is required to make a decision about an appropriate response or where the nature of the concern requires a formal or multi-agency approach). For information about enquiries see The Duty to Make (or cause to be made) an Enquiry.

2. The Duty to make (or cause to be made) an Enquiry

What an Enquiry is

The Care Act statutory guidance defines an enquiry as 'any action taken by or instigated by the Local Authority in response to a concern that abuse or neglect may be taking place'.

An enquiry can be statutory or non-statutory (discretionary) in nature.

The statutory guidance is clear that the scope of any enquiry should vary depending on the particular circumstances of the case and what would be proportionate to meet the objectives of the enquiry.

In all cases the purpose of any enquiry is to decide whether or not the Local Authority (or another organisation or person) should do something to help and protect the adult.

The first priority of any enquiry is to ensure the safety and Wellbeing of the adult. Other objectives of all enquiries into abuse and neglect are to:

1. Establish the facts;
2. Ascertain the adults views and wishes;
3. Assess the needs of the adult for protection and support and address how they might be met;
4. Protect from the abuse and neglect, in accordance with the wishes of the adult;
5. Make decisions about what follow up action should be taken with regard to the person or organisation responsible for the abuse or neglect; and
6. Enable the adult to achieve resolution and recovery.

Statutory Enquiry

A statutory enquiry is an enquiry that must be carried out, because the following safeguarding criteria (set out under Section 42 of the Care Act) have been met:

1. An adult (from the age of 18) has needs for Care and Support (whether these have been assessed or are being met by the Local Authority or not);
2. They are experiencing, or at risk of experiencing abuse or neglect; and
3. As a result of Care and Support needs, they are unable to protect themselves against the abuse or neglect.

Non-Statutory Enquiry

A non-statutory (discretionary) enquiry is an enquiry that can be carried out when the safeguarding criteria has not been met, but where carrying out an enquiry is still deemed the most appropriate and proportionate response to the circumstances.

Where a decision is made to carry out a non-statutory enquiry this should be undertaken in the same way as a statutory enquiry.

Enquiries when there is a Criminal Investigation also taking place

Under the Care Act a criminal investigation by the police takes priority over any other enquiry, even if the person chooses not to be involved in it. There will normally be a multi-agency approach agreed to ensure that the interests and wishes of the adult are considered throughout. For example, the Local Authority may be asked to arrange for an independent advocate where the person has substantial difficulty.

Depending on the outcome of the police investigation the Local Authority may still decide to carry out its own enquiry.

Where a police investigation is underway the Local Authority must:

1. Support the police when requested;
2. Provide information to the police;
3. Provide any support to the adult in relation to other duties of the Care Act, including the provision of information and advice (see Providing Information and Advice), the promotion of their individual Wellbeing (see Promoting Individual Wellbeing)and assessing and/or meeting of eligible needs.

Supporting the adult to be involved in the enquiry

Under the Care Act the wishes of the adult affected by the abuse or neglect are very important, regardless of their capacity to be involved in any safeguarding process. The wishes of the adult must be balanced alongside wider considerations such as risk.

As well as gathering the facts of the case it is important to know what the adult wants to happen so that a proportionate and appropriate response is provided and their Wellbeing is promoted. Some adults will want highly intrusive help, such as support to bar a person from their home or to seek justice, whereas others will simply want to talk through their options in order to make a decision about how to protect themselves where possible.

Supporting an adult who lacks capacity or has substantial difficulty to be involved

The involvement of people who lack capacity is just as important as the involvement of people who have capacity under the Act. Where there are concerns about mental capacity a mental capacity assessment should be carried out. If the adult is found to lack capacity then a Best Interests decision should be made about carrying out any enquiry and how best to support their involvement.

Under Section 68 of the Care Act the Local Authority has a duty to arrange for an Independent Advocate when an adult lacks capacity or has substantial difficulty in any safeguarding process, including Enquiry. For further details relating to the duty to make available an Independent Advocate, including how to determine substantial difficulty and decide whether there is already an appropriate person to represent the adult see The Duty to Provide an Independent Advocate.

Who can carry out an Enquiry

Which organisation can carry out an Enquiry?

The Local Authority is the lead agency under the Care Act for making and co-ordinating all enquiries. All organisations or people it approaches in doing so have a duty to provide information requested and support the Local Authority in the enquiry when asked to do so (for example, a Speech and Language Therapist who knows the adult's specific communication needs well may be asked to support the Local Authority during a conversation that they intend to have with the person to ensure communication is effective).

Although the Local Authority is the lead agency this does not mean that the Local Authority must carry out all enquiries itself. The Care Act gives the Local Authority the power to:

1. Make other organisations carry out an enquiry where it feels this is more appropriate; or
2. Make other organisations carry out a joint enquiry with the Local Authority or another organisation.

Organisations requested to carry out an enquiry by the Local Authority must carry out the enquiry.

No matter who carries out an Enquiry, the Local Authority retains responsibility for making sure that it is carried out as agreed. The Local Authority should ensure that there are appropriate arrangements in place to effectively liaise other agencies to monitor the progress of cases and ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process. Unless the Local Authority is satisfied with the outcome of an Enquiry it cannot be concluded.

Which individual can carry out an Enquiry?

Depending on the needs of the adult the organisation should consider the following when appointing a practitioner to carry out the enquiry:

1. Their skill to handle the enquiry in a sensitive way so that any distress to the adult is minimised as much as possible (this does not mean avoiding speaking with the person about what has happened so as to not upset them);
2. Their familiarity or rapport with the person;
3. Their communication skills (especially where there are specific communication needs);
4. The level of complexity in the situation, particularly around family dynamics and relationships; and
5. Their knowledge or expertise if the case requires specialist knowledge (for example, around a particular health condition, culture or area e.g. Domestic Abuse).

It does not matter whether the person carrying out the enquiry is a professional so long as they are appropriately skilled. Some examples of practitioners who can carry out an enquiry are:

1. Social Workers;
2. Occupational Therapists;
3. Physiotherapists;
4. Unqualified adult social care practitioners;
5. Community Nurses;
6. District Nurses;
7. GP's;
8. Teachers and teaching assistants; and
9. Housing Support Workers.

Refusal of an Enquiry

Refusal by an adult with capacity

When an adult has capacity and chooses to refuse any safeguarding intervention explicitly (including an Enquiry) this should be respected, unless:

1. A criminal offence has taken place; or
2. There may be a significant risk of harm to another person or the public.

When an adult has refused a safeguarding intervention (including Enquiry) this does not mean that the Local Authority cannot share information it has gathered with relevant professional colleagues if it deems it appropriate to do so in order to ensure the safety and Wellbeing of the person. This can happen without the adult's consent but should not happen without their knowledge (unless telling them would increase risk). Sharing information allows professionals to:

1. Complete a multidisciplinary risk assessment to check the validity of the decision made; and
2. Consider the possibility of undue influence, duress, coercion or intimidation on the persons decision (where a person is thought to be unduly influenced, under duress, coerced or intimidated into refusing help action must be taken to carry out the Enquiry).

When an adult has refused safeguarding support they may change their mind at any time and at this point support should be provided. Where deemed proportionate the Local Authority should monitor the situation (or ask others to monitor the situation on its behalf).

Refusal by an adult without capacity

Where an adult without capacity makes it clear that they do not wish for a safeguarding intervention to take place a Best Interests decision must be made about carrying out the enquiry. This must involve the independent advocate or Independent Mental Capacity Advocate (whichever is most appropriate) or another appropriate representative of the adult.

3. Safeguarding Plans

A Safeguarding Plan is a document that sets out the actions that will be undertaken to manage the on-going risk of abuse or neglect.

A Safeguarding Plan must be developed when:

• There is an on-going risk to the adult; and
• There is a benefit to the adult in them having a plan; and
• The adult consents to having a plan.

A Safeguarding Plan can be developed at any point in the safeguarding process whenever an on-going risk is identified as unmanaged through other means (for example a Care and Support Plan).

If a Safeguarding Plan is not already in place, the duty to develop a plan should be considered whenever the findings of an Enquiry are reviewed.

It is the responsibility of each organisation involved in the plan to implement their part of it, although the Local Authority is responsible for monitoring and reviewing the overall plan. The plan should be accessible to the adult being protected by it and should set out:

1. What steps are being taken to assure their safety in the future;
2. What support, treatment, therapy or ongoing advocacy will be provided;
3. What will change in relation to their current support;
4. Where the adult is seeking justice, how they will be supported to do this;
5. What the risks are and how these will be managed; and
6. What action is being taken against the person or organisation that has caused the abuse or neglect.

4. Reviewing an Enquiry

When all necessary enquiries have been made, the findings should be reviewed to establish:

• Whether the enquiry objectives have been met (see section 2 above).
• The risk outcome.
• Next steps.

The risk outcome

There are 3 potential risk outcomes:

Risk remains: The circumstances causing the risk are unchanged and the same degree of risk remains. It is acknowledged that there are valid reasons why a risk remains.

Risk reduced: The circumstances causing the risk have been mitigated to some degree. It is acknowledged that there are valid reasons why a risk is reduced rather than removed.

Risk removed: The circumstances causing the risk have been completely removed so that the adult is no longer subject to that risk.

Next steps

When deciding on any further action required to help and protect the adult (the purpose of an enquiry) the Local Authority should wherever possible base its decision on the wishes of the person. Other factors that should be considered are:

1. The impact of any decision on the person;
2. The ongoing risk of abuse or neglect to the person (the risk outcome);
3. Steps that could prevent the future risk of abuse or neglect occurring;
4. The level of need the person has;
5. The person's ability to protect themselves or the ability of their support networks to increase the support they provide;
6. The impact of any decision on important relationships;
7. The risk of increased risk due to action/inaction;
8. The risk to others, including children and adults in other settings; and
9. The action that should be taken against the organisation or person that has caused the abuse or neglect.

Actions that could be agreed after Enquiry are wide ranging, bearing in mind all of the objectives the enquiry must achieve. Some examples are:

1. Increased support from carers or friends;
2. Counselling or another therapeutic activity;
3. Information and advice for the adult about how to reduce the risk of abuse and neglect in the future;
4. Assistive technology;
5. Criminal prosecution;
6. Disciplinary action against the person causing harm;
7. A change of care provision or service provider;
8. A review of a service provider's contract with the Local Authority;
9. An investigation by the Care Quality Commission; and
10. A needs or carers assessment.

Where the Local Authority determines that it should itself take further action then it is duty bound under the Care Act to do so. This could be carrying out a particular activity (for example a needs assessment) or to actively monitor the situation due to the level of risk.

Whenever any further or ongoing actions are agreed, the duty to provide or maintain a Safeguarding Plan must be considered (see section 3 above).

Where the Local Authority decides there is no benefit to providing or maintaining a Safeguarding Plan, any actions to be taken should be recorded in the adult's relevant other plans (e.g. Care and Support Plan, health Care Plan).

Action against the person causing the abuse or neglect

Aside from potential criminal prosecution, people who are found to have caused abuse or neglect may face other action, which should be discussed following the enquiry.

1. Employers have a responsibility to take disciplinary (for example the use of verbal warnings, written warnings or gross misconduct charges) and other appropriate action (for example training and development) in relation to workers in their employ to ensure that adults they support are protected from abuse and neglect; and
2. Where a worker is found to have caused abuse or neglect following an enquiry the employer must inform the Disclosure and Barring Service (DBS). This is the case whether the worker left their employ before the enquiry was concluded or is still employed, and failure notify the DBS without a valid reason is a criminal offence. The DBS will then decide whether the person should be barred from working with adults.

Support for a person causing abuse or neglect who lacks capacity

Where the person causing abuse or neglect is themselves a person with Care and Support needs who is unable to understand the allegations against them, they should be assured of their right to:

1. An appropriate adult if they are questioned by the police; and
2. An Independent Mental Capacity Advocate to support them during the enquiry, and to understand the outcome of enquiry.