The Response to a Concern about Abuse or Neglect

The Care Act statutory guidance requires each Local Authority to recognise that adult safeguarding arrangements are there to protect individuals. This means they 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; and
2. Understand that 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.

The circumstances surrounding the concern should inform the response. In the following examples, the circumstances are different and hence, the response would be different.

Practitioners should 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.

The abuse or neglect should be considered 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.

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 the Local Authority thinks that necessary to enable it to decide what action is needed to help and protect the person). For information about enquiries see The Duty to Make (or cause to be made) an Enquiry.

The Care Act statutory guidance defines an enquiry as 'the action taken by or instigated by the Local Authority in response to a concern that abuse or neglect may be taking place'. This could range from a conversation with the person through to a formal multi-agency plan. 

The scope of the 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 an enquiry 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.

There is a statutory duty to make enquiries when:

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); and
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 risk of, or the experience of, abuse or neglect.

The Local Authority may also choose to make enquiries in other circumstances where it considers that doing so would assist the person’s Wellbeing.

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 progress or outcome of the police investigation the Local Authority may still decide to carry out its own enquiry. Care needs to be taken to ensure that the welfare of the adult remains a paramount consideration. Where the police investigation is likely to take a long time, it may not be appropriate for the Local Authority to delay its enquiry until the outcome of the police investigation is known when appropriate measures could be put in place to safeguard the person without prejudicing the police investigation.

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.

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 establishing 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 and there is to be a safeguarding Enquiry (unless there is an appropriate person to represent them). 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.

Which organisation can carry out an Enquiry?

The Local Authority is the lead agency under the Care Act for making and co-ordinating safeguarding enquiries. All organisations or people it approaches in doing so have a duty to cooperate with 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 the Enquiry is 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 carrying out the Enquiry 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.

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.

When deciding on any further action required to help and protect the adult (the purpose of an enquiry) the Local Authority should normally base its decision on the wishes of the person, unless there are good reasons not to. 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 an 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 has a duty 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).

Aside from potential criminal prosecution, people who are found to have caused abuse or neglect may face other action, which should normally 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.

Where the allegations are serious and there is good reason to believe that the abuse or neglect has taken place, it may be necessary to take these actions before the conclusion of the Enquiry, particularly if there is an on-going risk to the adult or to others.

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, steps should be taken to ensure that the following rights are respected:

1. An appropriate adult should be present if they are questioned by the police; and
2. An Independent Mental Capacity Advocate should be appointed to support them during the enquiry, and to understand the outcome of enquiry (where there is not an appropriate person to provide such support).