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.
Example 1:
Joe's son is his appointee. A few weeks ago Joe's son failed to pay his gas bill and Joe has been without heating or hot water ever since. A safeguarding concern has been raised by Joe's neighbour as Joe lives alone and has Dementia. Joe isn't sure when his gas will be switched back on but trusts that his son made a genuine error and is working to resolve the situation. In the meantime Joe is managing with an electric heater and a microwave. He says this 'isn't ideal but will do for now'.
Example 2:
Joe's son is his appointee. A few weeks ago Joe's son failed to pay his gas bill and Joe has been without heating or hot water ever since. A safeguarding concern has been raised by Joe's neighbour as Joe lives alone and has Dementia. Joe doesn't know when his gas will be switched back on and says he is freezing cold all of the time. Joe is very upset at what has happened and doesn't feel like his son is taking the situation very seriously.
  1. 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
Example 1:
Joe's son is his appointee. A few weeks ago Joe's son failed to pay his gas bill and Joe has been without heating or hot water ever since. A safeguarding concern has been raised by Joe's neighbour as Joe lives alone and has Dementia. Joe isn't sure when his gas will be switched back on but trusts that his son made a genuine error and is working to resolve the situation. In the meantime Joe is managing with an electric heater and a microwave. He says this 'isn't ideal but will do for now'. Joe says his son has never failed to pay a bill before and generally manages his appointee responsibilities very well.
Example 2:
Joe's son is his appointee. A few weeks ago Joe's son failed to pay his gas bill and Joe has been without heating or hot water ever since. A safeguarding concern has been raised by Joe's neighbour as Joe lives alone and has Dementia. Joe doesn't know when his gas will be switched back on and says he is freezing cold all of the time. Joe is very upset at what has happened and doesn't feel like his son is taking the situation very seriously. Joe says this is not the first time that his son has failed to pay a bill, and that a few months ago his electricity was turned off for nearly two weeks.
  1. 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.
Example:
Joe's son is his appointee. A few weeks ago Joe's son failed to pay his gas bill and Joe has been without heating or hot water ever since. A safeguarding concern has been raised by Joe's neighbour as Joe lives alone and has Dementia. Joe doesn't know when his gas will be switched back on and says he is freezing cold all of the time. Joe is very upset at what has happened and doesn't feel like his son is taking the situation very seriously. Joe says this is not the first time that his son has failed to pay a bill, and that a few months ago his electricity was turned off for nearly two weeks. Joe adds that when his son visits him he also calls in to see another neighbour who is living alone, Mary who the family have known for some time. Mary has Parkinson's and Joe said that his son often does some shopping or odd jobs around the house to help her out.

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 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 informal enquiry or a formal 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

Important to know
The duty to make (or cause to be made) a formal safeguarding Enquiry is section 42 of the Care Act. Whenever a document or person refers to section 42 of the Care Act they are referring to the duty to make (or cause to be made) a formal safeguarding Enquiry, even if they do not specifically use that phrase.

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:

  1. Informal or Initial Enquiry (For example, following a concern about the risk of abuse a conversation with the adult, their representative or a professional in order to decide whether a formal Enquiry approach is required); or
  2. Formal, under the Section 42 duty of the Care Act (For example, where abuse is thought to have occurred or is occurring). Formal enquiries are much more structured approaches and can involve a multi-agency plan or course of action. 

The statutory guidance is clear that the scope of an 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.

When an Enquiry must take place

An enquiry must take place after the Local Authority has received any information relating to a concern about an adult who:

  1. Has needs for Care and Support (whether these have been assessed or are being met by the Local Authority or not);
  2. Is experiencing, or at risk of experiencing abuse or neglect; and
  3. As a result of Care and Support needs is unable to protect themselves against the abuse or neglect; and
  4. The Local Authority thinks an enquiry necessary to enable it to decide what action (if any) is required to help and protect the adult.

When an Enquiry May take Place

The Local Authority may decide that either a formal Enquiry under Section 42 or an informal enquiry would be an appropriate response even if the adult does not meet the criteria to trigger the duty. When this happens the enquiry is called a Discretionary Enquiry.

Example:
Geoff has no current Care and Support needs but has had needs in the past related to his mental health. He feels unable to protect himself from the risk of abuse and this is starting to affect his mood. The Local Authority may feel that an enquiry is an appropriate way to support Geoff to manage the risk and the negative effect that the associated anxiety is having on his mood, thus delaying or preventing his need for further Care and Support services.

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 formal or informal 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

Important to know
The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse.

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.
Example 1:
Bob had a pressure area develop that, despite a treatment plan deteriorated into a Grade 4 pressure sore. The enquiry will need to ascertain whether the treatment plan was appropriate, whether it was carried out effectively and whether the staff treating him were suitably skilled. The Local Authority uses the power they have under the Care Act to make the District Nursing service carry out the Enquiry on their behalf as health expertise is required.
Example 2:
Francis has a mild learning disability and Diabetes. There are concerns that she is not self-neglecting her dietary needs and this is affecting her Diabetes. The person making the referral feels that Francis needs to move into a supported living scheme to get the ongoing help she needs. The enquiry will need to establish whether Francis understands the impact of her diet on her Diabetes and assess whether she has the capacity to manage these needs. The enquiry will also need to understand how Francis feels about moving to a supported living scheme and discuss any other options that may be suitable. The Local Authority uses the power they have in the Care Act to make a Community Nursing team carry out a joint enquiry with them as health expertise is needed in relation to her Diabetes, but social care expertise is needed in relation to supporting Francis to weigh up her options around housing.

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 Violence).

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.

The Local Authority has a duty under the Care Act to have regard to the adult's wishes and feelings when making any decision or completing any action that affects them. However, the priority is to ensure their safety and Wellbeing and, where this is at risk the decision should be to proceed with the enquiry and to try and encourage the person to be involved wherever possible.

3. Action after an Enquiry

Possible Outcomes of an Enquiry

The information gathered during the Enquiry will enable to Local Authority to make a determination as to whether the abuse or neglect has occurred based 'on the balance of probability'. This means that if there is more than a 50% likelihood that the abuse or neglect occurred then the determination would be that it has occurred.

Important to know
Even if abuse or neglect is not founded on the balance of probability, the Local Authority must still put in place any plans it deems appropriate to ensure that the adult is protected from the risk of the abuse or neglect in the future. This would constitute a preventative measure, which is a duty under Section 2 of the Care Act.

When deciding on any 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;
  3. The level of need the person has;
  4. The person's ability to protect themselves or the ability of their support networks to increase the support they provide;
  5. The impact of any decision on important relationships;
  6. The risk of increased risk due to the action/inaction;
  7. The risk to others, including children and adults in other settings; and
  8. 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. The Local Authority action, along with the action to be taken by others should be formally recorded in a plan that the Local Authority is responsible to review (see Safeguarding Plans below).

Where the Local Authority is taking no further action itself and the risk is perceived as low, any actions to be taken by others should be recorded in the adult's care plan.

Safeguarding Plans

When the Local Authority is undertaking an action following an Enquiry a safeguarding plan should be agreed. Where another organisation (s) is involved it is the responsibility of each organisation to implement their part of the plan, although the Local Authority is responsible for monitoring the overall plan. The plan should be accessible for 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

Action against the person causing the abuse or neglect

Aside from potential criminal prosecution people who are found to have caused abuse or neglect 'on the balance of probability' may face other action which will 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.