STAGE 2: ENQUIRY
When the Local Authority becomes aware of a situation that meets the criteria described in the above three steps, it must make or arrange an enquiry under Section 42 of the Care Act 2014: ‘The Local Authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom.’
An enquiry should establish whether and what action needs to be taken to prevent or stop abuse or neglect.
Local Authorities should aim to provide swift and personalised safeguarding responses, involving the adult at risk in the decision making process as far as possible. Further guidance is given about cases in which the adult at risk may lack capacity or has a substantial difficulty in being involved is given in Section 3.1. Local Authorities should record the information received, the views and wishes of the adult at risk, the decisions taken and the reasons for them and any advice and information given.
Role of the Local Authority
The Local Authority should decide very early on in the process who is the best person/organisation to lead on the enquiry. Where there are multiple agencies involved, the LA should take the lead and delegate specific parts of the enquiry as appropriate, co-ordinate the response and ensure the enquiry is completed to a satisfactory standard in line with Making Safeguarding Personal. The Local Authority retains the responsibility for ensuring that the enquiry is referred to the right place and is acted upon. If the Local Authority has asked someone else to make enquiries, it is able to challenge the organisation/individual making the enquiry if it considers that the process and/or outcome are unsatisfactory. In exceptional cases, the Local Authority may undertake an additional enquiry, for example, if the original fails to address significant issues.
The information in some referrals may be sufficiently comprehensive that it is clear that immediate risks are being managed, and that the criteria are met for a formal Section 42 enquiry. In other cases some additional information gathering may be needed to fully establish that the three steps are met. Decisions need to take into account all relevant information through a multi-agency approach wherever possible, including the views of the adult taking into consideration mental capacity and consent. (See section 3.1)
The degree of involvement of the Local Authority will vary from case-to-case, but at a minimum must involve decision making about how the enquiry will be carried out, oversight of the enquiry, decision making at the conclusion of the enquiry about what actions are required, ensuring data collection is carried out, and quality assurance of the enquiry has been undertaken.
Although the Local Authority has the lead role in making enquiries or requesting others to do so, where criminal activity is suspected, early involvement of the police is essential. Police investigations should be coordinated with the Local Authority who may support other actions, but should always be police led.
Ill treatment and wilful neglect
The police will determine whether there should be criminal investigations by people in positions of trust where there is ill treatment and wilful neglect. There are a number of possible offences which may apply, including the specific offences mentioned below.
Section 44 Mental Capacity Act 2005 makes it a specific criminal offence to ill-treat or wilfully neglect a person who lacks capacity.
Section 127 Mental Health Act 1983 creates an offence in relation to staff employed in hospitals or mental health nursing homes where there is ill-treatment or wilful neglect.
Sections 20 to 25 of the Criminal Justice and Courts Act 2015 relate to offences by care workers and care providers.
Conversations with the adult (including appropriate support)
In the majority of cases, unless it is unsafe to do so, each enquiry will start with a conversation with the adult at risk. The safeguarding lead or manager should ensure if conversations have already taken place and are sufficient. The adult and/or their advocate should not have to repeat their story. In many cases staff/organisation who already knows the adult well may be best placed to lead on the enquiry. They may be a housing support worker, a GP or other health worker such as a community nurse or a social worker. While many enquiries will require significant input from a social care practitioner, there will be aspects that should and can be undertaken by other professionals.
Points to consider:
- The pace of conversations;
- Whether the presenting issue identifies the risk to the adult’s safety, or whether there are additional risks to be considered;
- Wider understanding and assessment of the adult’s overall wellbeing.
The adult should be aware at the end of the meeting, what action will be taken and provided with contact details for key people.
- Establish the facts;
- Ascertain the adult’s views and wishes and preferred outcomes;
- Assess the needs of the adult for protection, support and redress and how these might be met;
- Protect the adult from the abuse and neglect, in accordance with their wishes where possible;
- Enable the adult to achieve resolution where possible.
Staff need to handle enquiries in a sensitive and skilled way to ensure minimal distress to the adult and where information is already known people should not have to tell their story again; this doesn’t prevent clarification being sought where necessary. There is a skill involved in eliciting information and asking the right questions, to ascertain what the concern is, how it impacts on the adult at risk, what action they would find acceptable and the level of associated risk. Whilst it is essential to put the adult at risk at ease, and to build up a rapport, the objectives of an enquiry should focus the conversation.
Desired Outcomes identified by the adult
The desired outcomes by the adult at risk should be clarified and confirmed at the end of the conversation(s), to:
- Ensure that the outcomes are achievable;
- Manage any expectations that the adult at risk may have; and
- Give focus to the enquiry.
Staff should support adults at risk to think in terms of realistic outcomes, but should not restrict or unduly influence the outcome that the adult would like.
Outcomes should make a difference to risk and at the same time satisfy the adult's desire for justice and enhance their wellbeing.
The adult’s views, wishes and desired outcomes may change throughout the course of the enquiry process. There should be an on-going dialogue and conversation with the adult to ensure their views and wishes are gained as the process continues, and enquiries re-planned should the adult change their views.
INITIAL ACTION AND DECISION MAKING UNDER SECTION 42
||Decisions made by the Safeguarding lead / manager|
Talking through an enquiry may result in resolving it, if not, the duties under Section 42 continue. If the adult has capacity and expresses a clear and informed wish not to pursue the matter further, the Local Authority should consider whether it is appropriate to end the enquiry. It should consider whether it still has reasonable cause to suspect that the adult is at risk and whether further enquiries are necessary before deciding whether further action should be taken. The adult’s consent is not required to take further steps, where appropriate but the Local Authority must bear in mind the importance of respecting the adult’s own views.
This decision will be made by the Local Authority safeguarding manager by checking with the adult and consulting with relevant partners and advocate.
Planning an Enquiry under further Section 42 duties
All enquiries need to be planned and co-ordinated and key people identified. No agency should undertake an enquiry prior to a planning discussion, unless it is necessary for the protection of the adult at risk or others.
The Local Authority professional leading on the enquiry should be confident and understand what is required. Dependent upon the complexity of an enquiry, the person leading on the Section 42 may wish to convene a multi-agency planning group.
Enquiries are proportionate to the particular situation. The circumstances of each individual case determine the scope and who leads it. Enquiries should be outcome focussed and best suit the particular circumstances to achieve the outcomes for the adult.
There is a statutory duty of co-operation and in most cases there will be an expectation that enquiry will be made as requested. The statutory duty does not apply if co-operation would be incompatible with its own duties or would have an adverse effect on its own functions.
If an organisation declines to undertake an enquiry or if the enquiry is not done, local escalation procedures should be followed. The key consideration of the safety and wellbeing of the adult must not be compromised in the course of any discussions or escalation and it is important to emphasise that the duty to cooperate is mutual.
When planning an enquiry, a review should be made of:
- The adult’s mental capacity to understand the type of enquiry, the outcomes and the effect on their safety now and in the future;
- Whether consent has been sought;
- Whether an advocate or other support is needed;
- The level and impact of risk of abuse and neglect;
- The adult's desired outcome;
- The adult's own strengths and support networks.
Communication and actions
It may be helpful to agree the best way to keep the adult and relevant parties informed. Where the enquiry is complicated and requires a number of actions that may be taken by others to support the outcome, it may be appropriate for a round table meeting. Where enquiries are simple, single agency enquiries it may not be necessary to hold a meeting. Action should never be put on hold due to the logistics of arranging meetings. Proportionality should be the guiding principle.
If the adult wishes to participate in meetings with relevant partners, one should be convened. Action however, should not be ‘on hold’ until a meeting can be convened. If the adult does not have the capacity to attend, then an advocate should represent their views.
|GOOD PRACTICE GUIDE|
|INVOLVING ADULTS IN SAFEGUARDING MEETINGS|
Effective involvement of adults and/or their representatives in safeguarding meetings requires professionals to be creative and to think in a person-centred way.
Information sharing should be timely, co-operation between organisations to achieve outcomes and co-ordinate actions, keeping the safety of the adult as paramount. Information sharing should comply with all legislative requirements.
Where one agency is unable to progress matters further, for example a criminal investigation may be completed but not necessarily achieve desired outcomes (e.g. criminal conviction), the Local Authority in consultation with the adult and others decide if and what further action is needed.
The strengths of the adult at risk should always be considered. Mapping out with the adult, and identifying their strengths and that of their personal network may reduce risks sufficiently so that people feel safe without the need to take matters further.
Risk should be assessed and managed at the beginning of the enquiry and reviewed throughout. A multi-agency approach to risk should aim to:
- Prevent further abuse or neglect;
- Keep the risk of abuse or neglect at a level that is acceptable to the adult and;
- Support the adult to continue in the risky situation if that is their choice and they have the capacity to make that decision.
Types of safeguarding enquiries
Responsibility to coordinate the safeguarding enquiry lies with the local authority. The local authority cannot discharge this duty, but another agency may lead on specific elements of the safeguarding enquiry. See table below for examples.
Enquiries can range from non-complex single agency interventions to multi-agency complex enquiries. The key questions in choosing the right type of enquiry, is dependent on:
- What outcome does the adult want?
- How can enquiries be assessed as successful in achieving outcomes?
- What prevention measures need to be in place?
- How can risk be reduced?
Identifying the primary source of risk may assist in deciding what the most appropriate and proportionate response to the individual enquiry might be. There are no hard and fast rules and judgement will need to be made about what type of enquiry and actions are right for each particular situation.
Linking different types of enquiries
There are a number of different types of enquiries. It is important to ensure that where there is more than one enquiry, information is dovetailed to avoid delays, duplications and making people repeat their story.
Other processes, including police investigations, can continue alongside the safeguarding adult enquiry. Where there are HR processes to consider, it is important to ensure an open and transparent approach with staff and that they are provided with the appropriate support, including trade union representation. The remit and authority of organisations need to be clear when considering how different types of investigations might support Section 42 enquiries.
|Types of enquiries||Who might lead|
|Criminal (including assault, theft, fraud, hate crime, domestic violence and abuse or wilful neglect.)||Police|
|Domestic violence (serious risk of harm)||Police coordinate the MARAC process|
|Anti-social behaviour (e.g. harassment, nuisance by neighbours)||Community safety services/local Policing (e.g. Safer Neighbourhood Teams).|
|Breach of tenancy agreement (e.g. harassment, nuisance by neighbours)||Landlord/registered social landlord/housing trust/community safety services|
|Bogus callers or rogue traders||Trading Standards/Police|
|Complaint regarding failure of service provision (including neglect of provision of care and failure to protect one service user from the actions of another)||Manager/proprietor of service/complaints department Ombudsman (if unresolved through complaints procedure)|
|Breach of contract to provide care and support||Service commissioner (e.g. Local Authority, NHS CCG)|
|Fitness of registered service provider||CQC|
|Serious Incident (SI) in NHS settings||Root cause analysis investigation by relevant NHS Provider|
|Unresolved serious complaint in health care setting||CQC, Health Service Ombudsman|
|Breach of rights of person detained under the MCA 2007 Deprivation of Liberty Safeguards (DoLs)||CQC, Local Authority, Office of the Public Guardian/Court of Protection|
|Breach of terms of employment/disciplinary procedures||Employer|
|Breach of professional code of conduct||Professional regulatory body|
Breach of health and safety legislation and regulations
HSE/CQC/Local Authority Link to – 2015 MoUl
Misuse of enduring or lasting power of attorney or misconduct of a court-appointed deputy
OPG/Court of Protection/Police
|Inappropriate person making decisions about the care and wellbeing of an adult who does not have mental capacity to make decisions about their safety and which are not in their best interests||OPG/Court of Protection|
|Misuse of Appointeeship or agency||DWP|
|Safeguarding Adults Review (Care Act Section 44)||Local Safeguarding Adults Boards|
Once all actions have been completed a report should be collated and drawn up by the relevant safeguarding professional, overseen by the Safeguarding Manager. In some more complex enquiries, there may be a number of actions taken by other staff that support the enquiry. Where there are contributions from other agencies/staff, these should be forwarded within agreed formats and timeframes, so that there is one comprehensive report that includes all sources of information.
Reports need to be concise, factual and accurate. Reports should be drafted and discussed with the adult at risk and / or their advocate. Reports need to address general and specific personalised issues. They should cover:
- Views of the adult at risk
- Whether outcomes were achieved
- Is there evidence that Section 42 criteria were met
- Whether any further action is required and, if so, by whom
- Who supported the adult and if this is an on-going requirement.
In some enquiries, there will be an investigation, for example, a disciplinary investigation; these might be appended to the Enquiry Report. In drawing up the report, the risk assessment should be reviewed and any safeguarding plan adjusted accordingly.
Recommendations should be monitored and taken forward. Agencies are responsible for carrying out the recommendations which might be included in future safeguarding plans.
Standards and Analysis
The report should be tested that it meets the standards above, and analysed to assess whether there are gaps, contradictions and that information has been triangulated, i.e. is the report evidence based, and is there sufficient corroboration to draw conclusions.
The report and recommendations of the enquiry should be discussed with the adult at risk and / or their advocate, who may have a view about whether it has been completed to a satisfactory standard.
Overall, the Local Authority should decide if the enquiry is completed to a satisfactory standard. If another organisation has led on the enquiry, the Local Authority may decide that a further enquiry should be undertaken by the Local Authority. The exception to this is where there is a criminal investigation and in this case, the Local Authority should consider if any other enquiry is needed that will not compromise action taken by the police.
Outcome to the enquiry
All enquiries should have established outcomes that determine the effectiveness of interventions. This is decided by the Safeguarding Manager in consultation with the adult and other parties involved in the enquiry and will ascertain to what extent the adult's desired outcomes have been met in line with Making Safeguarding Personal.
Evaluation by the adult at risk
- Were the desired outcomes met? (In exploring this, there is a need to clarify whether they were):
- Fully met;
- Partially met;
- Not met.
- Do they feel safer?
- Partially - in some areas but not others;
The evaluation is that of the adult and not of other parties. Whilst staff may consider that enquiry and actions already taken have made the adult safe, and that their outcomes were met, the important factor is how actions have impacted on the adult. This should be clarified when assessing the performance of safeguarding.
Outcome for the person(s) alleged to have caused harm
To ensure the safety and wellbeing of other people, it may be necessary to take action against the person/organisation alleged to have caused harm. Where this may involve a prosecution, the police and the Crown Prosecution Service share information within statutory guidance.
The police may also consider action under the Common Law Police Disclosure (CLPD) which is the name for the system that has replaced the ‘Notifiable Occupations Scheme’. The CLPD addresses risk of harm regardless of the employer or regulatory body and there are no lists of specific occupations. The CLPD focusses on:
- Disclosure where there is a public protection risk
- Disclosures are subject to thresholds of ‘pressing social need’.
- The ‘pressing social need’ threshold for making a disclosure under common law powers is considered to be the same as that required for the disclosure of non-conviction information by the Disclosure and Barring Service (DBS) under Part V of the Police Act 1997 (as amended).
Referrals to Professional Bodies
Where it is considered that a referral should be made to the DBS careful consideration should be given to the type of information needed. This is particularly pertinent for people in a position of trust.
Where appropriate, employers should report workers to the statutory and other bodies responsible for professional regulation such as the General Medical Council, the Nursing and Midwifery Council and the Health & Care Professions Council. The legal duty to refer to the Disclosure and Barring Service may apply regardless of a referral to other bodies. Please refer to Appendix 3.
Support for people who are alleged to have caused harm
Where the person is also an adult who has care and support needs, organisations should consider what support and actions may help them not to abuse others. For example, enquiries may indicate that abuse was caused because the adult’s needs were not met and therefore a review of their needs should be made.
Where the person alleged to have caused harm is a carer, consideration should be given to whether they are themselves in need of care and support.
Checks might be made whether staff were provided with the right training, supervision and support. Whilst this does not condone deliberate intentions of abuse, prevention strategies to reduce the risk of it occurring again to the adult or other people should be considered.
People who are known perpetrators of domestic violence may benefit from Domestic Violence Prevention Programmes.
When considering action for people who abuse, prevention and action to safeguard adults should work in tandem.
Recovery and Resilience
Adults who have experienced abuse and neglect may need to build up their resilience. This is a process whereby people use their own strengths and abilities to overcome what has happened, learn from the experience and have an awareness that may prevent a reoccurrence, or at the least, enable people to recognise the signs and risks of abuse and neglect, and know who and how to contact for help.
Resilience is supported by recovery actions, which includes adults identifying actions that they would like to see to prevent the same situation arising. The process of resilience is evidenced by:
- The ability to make realistic plans and being capable of taking the steps necessary to follow through with them;
- A positive perception of the situation and confidence in the adult's at risk own strengths and abilities;
- Increasing their communication and problem-solving skills
Resilience processes that either promote well-being or protect against risk factors, benefit adults at risk and increases their capacity for recovery. This can be done through individual coping strategies assisted by:
- Strong personal networks and communities
- Social policies that make resilience more likely to occur
- Handovers/referrals to other services for example care management, or psychological services to assist building up resilience
- Restorative practice
If no further safeguarding action is required and there are alternative ways of supporting adults where they may be needed, then the adult safeguarding process can be closed down.
|ACTIONS AND DECISIONS UNDER SECTION 42 ENQUIRIES|
|WHAT TO DO||WHO SHOULD BE INVOLVED|
Allocate the Enquiry
Plan the Enquiry
Identify lead professional in individual agencies
Identify lead professional in individual agencies
Clarify desired outcomes
Identify links to other procedures in progress
Undertake agreed action
Update safeguarding plan Agree communication Agree outcomes for person(s) alleged to have caused harm Make referrals as agreed in relation to the person alleged to have caused harm
Make referrals in relation to the adult
Evaluation by the adult / advocate
Explore recovery and resilience
Local Authority (LA)
Adult at risk /advocate / relevant professionals
Allocated LA lead
Adult at risk /advocate
Allocated LA lead
Relevant lead professional/ adult at risk / advocate
Adult at risk /advocate
Adult at risk /advocate / Allocated LA lead
What type of enquiry is appropriate and proportionate?
Who should lead and who should contribute?
Do reports provided by other agencies meet required standards?
Is it necessary for the Local Authority to make further enquiries under safeguarding?
Should the enquiry be closed or taken forward for review?
Actions for the adult?
Actions for the person alleged to have caused harm?
Lead professional in consultation with the adult and others