Free article: Demystifying safeguarding: has the playing field levelled?

Published: Monday, 30 March 2015

Jenny Wilde looks at changes to safeguarding adults under the Care Act 2014.

Summary

  • The Care Act 2014 has established safeguarding investigations on a legal footing, to avoid local authorities using different procedures.
  • The Department of Health has issued statutory guidance on safeguarding. This was published in October 2014 and came into force in April 2015.
  • According to the guidance, the most routine and regulatory slip-ups will not merit a safeguarding referral.
  • It is likely that providers will still need to hold local authorities to account if they fail to follow the new guidance, either independently or with the support of legal advice.

The Care Act 2014

The Care Act 2014 promised to finally place the murky and confused world of safeguarding on a statutory footing and ensure clear statutory guidance was produced which local authorities investigating these types of concerns would have to follow.

For too long health and social care providers have been put in limbo each time an incident arises in a care setting and the local authority announces it will be examined as part of a safeguarding investigation. When such an incident occurs, often any staff involved are suspended pending the result of the investigation. This is obviously a prudent step for a responsible provider of health and social care services because, after all, the safety and welfare of service users is paramount. However, it can mean that services are suspending staff members on full pay for an indeterminate period of time as there is no formal indication of how long an investigation may take.

In a situation where the police become involved, an investigation can run for a number of months. Powers given to individual local authorities to conduct these investigations within a reasonable time are wide. Any policies that local authorities do have are unique to each authority, and there is no real or easily accessible recourse in a situation where the local authority fails to follow their procedure. So it had become clear that a uniform approach was needed to make the process fair for providers while ensuring that the safety of service users and staff was maintained.

The Care Act 2014 has now put safeguarding on a statutory footing. The decisions to be taken in safeguarding cases will have to be derived from assessment functions, not free-standing duties that actually provide any alternative means to investigate or manage risk.

Department of Health guidance

Providers had hoped that the Care Act 2014 would lead to a set of regulations dictating the structure of safeguarding processes; the Department of Health has instead issued statutory guidance on the matter. This was finalised at the end of October 2014 and is available on the Department of Health’s website. The guidance came into force in April 2015.

The positive elements of the guidance indicate that the most routine regulatory slip-ups will not merit a safeguarding referral. The guidance states: ‘It is not useful for commissioners of care or other professionals to attempt to improve services by using safeguarding procedures as a threat to intimidate providers’.

It continues by saying ‘the first responsibility to act must be with the employing organisation as a provider of the service’. This appears to suggest that under the new regime providers will be able to argue that they should carry out safeguarding enquiries in the absence of compelling reasons to the contrary. This will hopefully mean that local authorities carry out fewer safeguarding in-vestigations and providers are effectively given back some level of control over their own services.

This news will be welcomed by providers, who often live in fear of the damage that safeguarding investigations can do to their busi-nesses. The guidance appears to say that local authorities will no longer be able to use a safeguarding investigation to threaten providers or meet an agenda other than establishing the facts of an incident.

The role of CQC

Providers will be all too aware of how a safeguarding investigation can have an impact on a variety of other stakeholders, not least the Care Quality Commission (CQC).

Agencies that have been involved in the safeguarding assessment will share information with CQC in accordance with local safe-guarding procedures and the local information-sharing protocols that should be in place. The outcome of the safeguarding assessment (including investigation reports where appropriate) must be shared with CQC where it relates to a regulated service. This is regardless of whether CQC has been directly involved in the assessment or investigation process.

If CQC has undertaken an inspection in response to the safeguarding concerns, this will be shared in the multi-agency forum. Details of enforcement action will be passed to the relevant local authority as required in the Health and Social Care Act 2008 and regulations.
As providers will know, a safeguarding incident can trigger intensified scrutiny of a service by the regulator that can lead to a negative inspection experience and subsequent report.

While the Care Act 2014 implies an increase in provider control over safeguarding investigations, this will not discourage CQC from becoming involved in safeguarding matters and from initiating a review of a service based on any information shared with it by a local authority. Providers will be well aware that links between commissioning authorities and the regulator are close and information about any serious incidents that arise will be shared between the two stakeholders.

This can result in providers feeling bombarded by representatives of both bodies, either judging the compliance of a service or installing their own representatives to investigate allegations. In situations like this, providers must take care to manage the differing and sometimes competing objectives of the investigating parties. They should ensure they provide as much information as possible to help conclude the matter.

Conclusion

We will not know the extent to which the new system of safeguarding will benefit providers of health and social care services until it is fully implemented and providers have been able to report their experiences. However, it is likely that providers will still need to hold local authorities to account should they fail to adhere to the new guidance, either independently or with the support of legal advice.

Providers are often reluctant to be assertive in such a sensitive situation out of fear of reprisal. However, it is vital that safeguarding investigators are clear that they are now subject to statutory guidance and cannot simply make up the process as they go along, as many providers will argue has been the case previously.

Further information

Care and support statutory guidance: issued under the Care Act 2014, Department of Health, October 2014: http://bit.ly/CareAct2014Guidance.

About the author

Jenny Wilde is a solicitor at Ridouts LLP, health and social care specialists based in London. This email address is being protected from spambots. You need JavaScript enabled to view it.; website: www.ridout-law.com.

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