Safeguarding Adults Inter Agency Policy and Procedure Guidelines 2007

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Safeguarding Adults in Tameside

Inter-Agency Policy and Procedures Guidelines 2011

Foreword
Section 1 - Policy and Definitions
Section 2 - Procedure
Section 3 - Prevention
- Enquiry/Concern System
- Actions taken in response to enquiries
Appendices
1. Legal Framework
2. Safeguarding Adults Form 53.78 KB
3. Strategy Meeting Template 82.24 KB
4. Conference Minutes Template 47.95 KB
5. Useful Addresses/Advocates
6. Flow Charts and Flow Diagrams 242.7 KB
7. Information Protocol Summary
8. ADASS Guidance
9. Safeguarding Adults Policy and Procedures 5th Edition 531.24 KB

Section 1 - Policy and Definitions

Foreword

The abuse of Adults is a significant and complex problem, which requires a coordinated response. This policy and procedure has been formulated and agreed by an interagency group all of whom are concerned with the health and welfare of Adults in Tameside. It represents a commitment to working together to identify and deal with abuse against Adults. The members of the group are:

Policy Statement

We recognise that the abuse of adults is a reality. We do not believe that this is acceptable and are committed to confronting and eliminating adult abuse whenever it comes to our notice and involves people to whom we provide services. As organisations we will ensure that our staff are trained to be alert in detecting signs or symptoms of adult abuse.

Principles

The procedures are based on the following principles.

Everyone is entitled to:

Privacy
Be treated with dignity
Lead an independent life and to be enabled to do so
Be able to chose how they lead their lives
The protection of the law
Have their rights upheld regardless of ethnic origin, gender, sexuality, impairment or disability, age, religious or cultural background

In order to comply with these principles effectively, we will strive to create an environment where people’s human and civil rights are recognised and protected.

We will:

Start from the premise that a person is able to make informed decisions and we will take all practical steps to ensure that the adult at risk of abuse understands relevant information and is aware of their options. This may require us to express ourselves in simple language, to use different languages or other forms of communication;
Ensure that in our contact with patients and service users we respect the individual and their individuality;
Ensure that staff are aware of their responsibility to be proactive in situations where they suspect abuse is occurring;
Create a working environment where those who suspect abuse are not afraid of reporting it. We will ensure that staff are aware of the protection that legislation and policy offers them;
Listen and respond to people who are alerting us of abuse, whoever they are.
We will ensure that they are directed to an access point and that they are protected and supported;
Ensure that all staff employed within our agencies are familiar with these procedures and are trained to the necessary level in their use;
Recognise the importance of confidentiality but not at the expense of leaving of any adult or others at risk;
Offer support or treatment to those who have been abused;
Recognise that the term ‘abuse’ can include criminal activity. When staff suspect a criminal offence is being committed then consultation with the police will take place.

Safeguarding Adults

A National Framework of Standards for good practice and outcomes in adult protection work has been introduced by the Association of Director of Social Services (ADASS). This guidance comprises of eleven sets of good practice standards. The Safeguarding Adults Procedure contributes to the implementation of these standards.

Definitions

An overview of the legal basis for this Policy can be found at Appendix 1.

Safeguarding Adult

Any person over 18 years
Is or maybe in need of community care services to enable them to retain:-
- Independence
- Well being
- Choice
And to access their human right to live a life free from abuse and neglect

For the purpose of this guidance ‘community care services’ will be taken to include all care services provided in any setting or context.

The term ‘Safeguarding Adults’ applies to people who might not be able to take steps to protect themselves without support, including those in a caring role.

The aim is to ensure the same protection to adults as is currently given to children by the Children Act.

Significant Harm

Significant harm is defined as: “...Ill treatment (including sexual abuse and forms of ill treatment that are not physical); the impairment of, or an avoidable deterioration in, physical or mental health; and the impairment of physical, emotional, social or behavioural development”. (Law Commission 1995 page 207).

Adult Abuse

Abuse is harm caused to an adult by an act, or failure to act, on the part of another person. The abuse can cause pain or distress and significant harm to the vulnerable person. “Abuse may be described as physical, sexual, psychological/emotional or financial. It may be intentional or unintentional or the result of neglect. It causes harm to the person, either temporarily or over a period” (SSI “No Longer Afraid” 1993)

Recognising Abuse

Abuse may take many forms and may include criminal activity. It may take the form of:

Physical abuse
Neglect
Emotional abuse
Sexual abuse
Financial abuse
Institutional abuse

It may involve any combination of the above.

Physical Abuse

Physical abuse results in bodily harm and/or mental distress. It includes physical assault, imprisonment, and misuse of drugs. The perpetrator may cause physical or mental pain by doing (e.g. hitting) or not doing (e.g. withholding food). Often the nature of the physical injury is not consistent with the account of how it occurred.

Possible indicators of physical abuse:

Multiple bruising
Fractures
Burns
Bed sores
Fear
Depression
Unexplained weight loss

Possible crime:

Assault (can be intentional or reckless)

Neglect

Neglect also results in bodily harm and/or mental distress. It can involve failure to provide help and support in daily living tasks. Often there is a failure to meet basic needs (e.g. warmth, nutritional diet). It can involve failure to intervene in behaviour which is likely to cause harm to a person or to others. Neglect can occur because of lack of knowledge by the carer.

NB Self neglect by an adult will not usually result in the instigation of the adult protection procedures unless the situation involves a significant act of omission or commission by someone else with responsibility for the care of that adult.

Possible indicators of neglect:

Malnutrition
Untreated medical problems
Bed sores
Confusion
Over-sedation

Possible crime:

Deprivation of meals may constitute “wilful neglect” (see Mental Health Act 1983; Care Standards Act 2000)

Emotional Abuse and Emotional Neglect

Emotional abuse results in mental distress and may affect a person’s physical health. It can involve the denial of choice, dignity and respect. It can include the fear of violence, threats, harassment, humiliation, loss of liberty, name calling, the use of racist/sexist/discriminatory language. It can involve restricting or failing to present all of the options to the vulnerable person, over-riding consent, treating adults as children.

A person may be subject to such treatment in one off incidents by strangers. Workers will ascertain if the incident is one off. If it is, support will be offered to the victim and records of decisions taken will be kept but no further investigation will be undertaken.

Possible indicators of emotional abuse:

Fear
Depression
Confusion
Loss of sleep
Unexpected or unexplained change in behaviour

Possible crime:

Deprivation of liberty could be false imprisonment. Aggressive shouting causing fear of violence in a public place may be an offence against Public Order Act 1986, or harassment under the Protection from Harassment Act 1997

Sexual Abuse

Sexual abuse occurs when a vulnerable person is involved in sexual activities she/he does not want to be involved in or does not understand, (Incapacity is discussed in the Capacity and Consent section), or to which she/he is unable to give informed consent, (Consent is discussed in the Capacity and Consent section). Sexual activity does not always involve contact. It may take the form of looking at pornographic photographs, videos and magazines, voyeurism, indecent exposure.

Possible indicators of sexual abuse:

Loss of sleep
Unexpected or unexplained change in behaviour
Bruising
Soreness around the genitals
Torn, stained or bloody underwear
A preoccupation with anything sexual
Sexually transmitted diseases
Pregnancy

Possible crimes:

Rape – eg. a male member of staff having sex with a Mental Health client (see Mental Health Act 1983)
Indecent Assault

Financial Abuse

Financial abuse includes the theft, misuse or withholding of money or possessions. It can involve the use of verbal, physical and emotional threats. The vulnerable person’s financial and material position is exploited.

Possible indicators of financial abuse:

Unexplained withdrawals from the bank
Unusual activity in the bank accounts Unpaid bills
Unexplained shortage of money
Reluctance on the part of the person with responsibility for the funds to provide basic food and clothes etc.

Possible crimes

Fraud
Theft

Institutional Abuse (Care Practice and Policy)

Institutional abuse in care practice can occur in any group living situation eg. day centres, supported housing, residential or nursing homes etc. Any of the abuse described above could happen in an institutional setting. In addition it could be the institution itself that is the source of the abuse. Institutional abuse can involve the imposing of rules by staff without the consent of those living there (e.g. rigid rules for meal times). It can involve lack of privacy and the lack of individual attention. This can involve the deprivation of normal social contact and the involuntary withdrawal from valued activity.

Institutional abuse can also be caused by the policies of the institution if they fail to recognise the diversity of the communities that they serve.

As an example of this form of abuse, the McPherson Report (1999) into the death of Stephen Lawrence defined institutional racism as:

“..the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.”

It is important to understand that all organisations, no matter how large or small, may act in this manner and this form of institutional abuse may be expressed in the way the organisation responds to the needs of its client group. The organisation, in responding to individual need, must acknowledge the multi-faceted nature of people’s lives. They must ensure that individuals are not forced to sacrifice their own preferred lifestyle to the needs of the institution.

Possible indicators of institutional abuse

Inflexible and non-negotiable systems and routines
Lack of consideration of dietary requirements
Name calling; inappropriate ways of addressing people
Lack of adequate physical care – an unkempt appearance

“I visited my mother in a residential home and was surprised that everyone had to go to bed at the same time and that there was a line of people in wheelchairs outside the toilet. Everyone had to sit in the main lounge in a circle against the wall – there were no walking aids allowed in the room (these were taken away by the staff) and the television was on so loud, blasting out Top of the Pops, that nobody could hear what was being said. Is this right?”

“The Home care worker always puts my teeth in the same bowl as my wife’s at night to soak – I hate it and asked her not to do it time and time again, but she just ignores me. Should she give me my wife’s medicine at night – it worries me, you know. The thing that really upsets me is that she says she can’t help me to wash myself – I smell and look a mess. I was never like this before the stroke and I am sure her boss said that she had to help me wash myself – what can I do?”

“I am grateful that my dad is in hospital now, but they took his teeth out before his operation and now cannot find them. They call him Freddy, instead of Mr Heathcote. He looks so much older - no one takes time to help him choose his meals or eat properly. He has lost all his dignity.”

Roles and Responsibilities

Role of the Lead Agency

Tameside Community Services Department is the lead agency in matters of protection and abuse of Adults. It will be their role to arrange and co-ordinate the multi agency systems that protect Adults.

This activity will be carried out by the post of Safeguarding Adults Co-ordinator.

All reported incidents of adult abuse, in any agency, must be reported to the Coordinator who will collate the information for the Tameside Adult Safeguarding Partnership.

Outcomes from Safeguarding Adult Conferences on adult abuse activities must also be documented and sent to the Safeguarding Adults Co-ordinator, access to all of the information held will be restricted.

Tameside Adult Safeguarding Partnership: Structure

Tameside’s Tameside Adult Safeguarding Partnership is a multi-agency forum reflecting the seriousness with which all the agencies view abuse and neglect of Adults.

Representatives from the principle agencies make up TASP. TASP meet on a regular basis and be chaired by an independent safeguarding adult chair.

The principal agencies are:

Tameside MBC Community Services- Adults
Tameside MBC Community Safety Unit
Tameside MBC Adult Education
Tameside Housing
Tameside Hospital NHS Foundation Trust
Pennine Care NHS Foundation Trust
NHS Tameside and Glossop
Financial Assessment TMBC
Greater Manchester Police Authority (Tameside Division)
Greater Manchester Fire and Rescue Service
Crown Prosecution Service
Probation
T3SC Tameside Third Sector Coalition
Victim Support

Associate membership is available for any voluntary organisations or user groups who wish to be part of the overall level of protection which can be offered to Adults in Tameside.

On an annual basis senior representatives from all the agencies - principal and associate - will meet to review the procedures, identify any difficult areas and to prepare an annual report, which will go to the Chief Executives of all participating agencies.

Tameside Adult Safeguarding Partnership: Responsibilities (see appendix 6)

To continually review the approved procedures using feedback and comments from Service Users, Carers and Staff who have used them;
To receive a report from the Adult Services Safeguarding Adults Coordinator about the number and nature of referrals related to abuse/neglect that have taken place in the previous three months;
To ensure that the procedures are widely distributed and understood by staff from all the agencies;
To identify if any further action is required in terms of amending existing policies and procedures in related areas;
To be informed of ethical issues facing workers and to provide guidance to them. At times this will involve TASP in decision making relating to specific situations;
To ensure that where a person is assessed as incapable (not able to consent)and decisions are made on their behalf, TASP is satisfied that all steps have been taken to enable the person to understand.
To receive an annual audit from Safeguarding Adult Managers of aftercare provided to all abused individuals and ensure proactive approaches to aftercare are working across the agencies involved;
To commission training for all staff relevant to their role;
To develop a data base (subject to the requirements of the Data Protection Act) which identifies-
- Any Adult who has been subject of the procedure,
- What happened to them,
- Who is regarded as having undertaken the abuse and what has happened to them.

This information will be obtained from referrals, letters and Safeguarding Adult Conference minutes.

To ensure that the senior management team/officer of each of the agencies involved receives a report of each meeting of TASP.

Role of the Safeguarding Adult Manager

All agencies involved have identified ‘Safeguarding Adult Managers’. They are the staff employed as First Line Manager.

These identified staff have a central role in the assessment of abuse. They are the key people who will take allegations onto the next stage.

Stage 1 - initial response
Stage 2 - investigation
Stage 3 - Safeguarding Adult Conference

Safeguarding Adult Managers role and responsibilities

Ensure that the interests of the adult are paramount in the process
Overseeing and supervising the investigation of and response to adult abuse in prescribed timescales
Decide whether a strategy meeting is required
Ensuring all appropriate agencies are involved in the investigation and provision of support
Ensure relevant organisations are kept up to date with progress of the investigation
Ensure good standards of practice are maintained
Negotiate if differences arise between agencies
Supporting staff who are involved in working with abusive situations
Gather initial information
Keep detailed records
Decide whether legislation should be used – such as Mental Health Act 1983
Call and organise the Safeguarding Adult Conference which should involve representatives form all key organisations involved with the care of the person
Defining the desired outcomes
Ensure that a protection plan is in place and appropriate aftercare is offered in the person who has been abused
Send an assessment of the situation to the Safeguarding Adults Co-ordinator (see appendix 7- Outlines roles and responsibilities)
Apply mechanism to update ISA

Safeguarding Adult Managers in Adult Social Care and Health, Health Agencies, Police and CQC are the mandatory agencies to invoke Safeguarding Adults Policy.

In any agency where a multi-agency investigation is required, the Safeguarding Adult Manager will be identified from one of the mandatory agencies who will have overall responsibility for the investigation.

Role of Staff and Whistleblowing

Managers must make it clear that there will be no recriminations for “whistle blowing“ and that staff concerns will be dealt with fairly and justly. Managers should recognise that staff might be scared of taking action when they suspect that abuse is occurring. It is common to react to distressing situations by denying reality or by feeling guilty or de-skilled.

All members of staff have a moral obligation, a right and a duty to raise with their employer:

Any instance of malpractice, negligence or unprofessional behaviour;
Any matter of concern relating to delivery of services which are detrimental to service users’ and carers’ interests.

In practice this means that all employees are responsible for being alert to abuse and for doing the right thing.

Being alert to abuse means:

Identifying behaviour that is not acceptable
Listening to clients/patients who disclose abuse;
Acknowledging hints or signals which ‘leak out’.

Doing the right thing means:

Reporting concerns to the line manager;
Ensuring that an investigation/assessment takes place;
Not working in isolation;
Receiving regular supervision;
Receiving training.

The Public Disclosure Act 1998 offers protection for staff who ‘whistle blow.’ (See Appendix 1).

Allegations against staff

Any allegation of abuse towards a member of staff will be investigated. Staff in this situation, will be supported by their own organisations grievance and disciplinary procedures.

Capacity and Consent

Defining capacity

The Law Commission recommends that a person should be regarded as being without capacity if at the time of a decision, they are:

Unable by reason of mental disability to make a decision on the matter in question; or
Unable to communicate a decision on that matter because they are unconscious or for any other reason.

Furthermore the Law Commission recommends that a person should be regarded as unable to make a decision if at the time of the decision they are:

Unable to understand or retain the information relevant to the decision; or
Unable to make a decision based on that information.

Good practice dictates, and the Law Commission recommends, that there should be a presumption against lack of capacity. This means that there should not be an automatic assumption that a person does not have the capacity to make decisions. This is an important point of principle because an adult may wish to a make decision that could result in harm to themselves or others.(see appendix 6)

Another important legal principle is that capacity must be assessed in relation to the particular decision that needs to be made. Having decided that an individual may be incapable of making a particular decision does not mean that she/he is automatically unable to make another.

Establishing Capacity

Even when incapacity appears to be affecting a persons ability to make decisions, the Law Commission states that every measure must be taken to maximise the person’s potential to make decision by:

Explaining things in broad terms;
Using simple language;
Using other languages - such as the person’s first language;
Using other forms of communication - such as audiotapes, picture representation etc.

The key principles in establishing capacity are that the individual must have the ability to:

Understand the information being given;
Understand what is being proposed, and why;
Understand the benefits and risks;
Understand, in broad terms, the alternatives and the associated risks and benefits; and
Retain the information relevant to the decision in question for long enough to make an informed choice.

Consent

Decisions made on behalf of a person without capacity must be made in their best interests.

The Law Commission states that:

“In the case of anything done or a decision made by a person other than the court it shall be sufficient ….if that person reasonably believes that what he does or decides is in the best interests of the person concerned.” (Law Commission Report No 231).

In establishing the person’s best interest, consideration should be given to:

The past and present wishes and feelings of the person;
The factors they would consider in making a decision if they were able to do so;
The need to allow and encourage the person to participate in anything done for them or any decision affecting them;
The views of other people about the person’s wishes and feelings;
Whether any less restrictive alternative to the person’s freedom of action is available.

There are some circumstances where an individual third party cannot make decisions on behalf of an adult who has been judged to be without capacity eg.

Consent to marry;
Consent to sexual relations;
Consent to divorce;
Consent to adoption;
Consent to freeing a child for adoption;
Voting;
Discharging parental responsibilities.

Capacity and Consent - Person with Capacity but does not want intervention

The adults’ capacity is the key to action since if someone has capacity and declines assistance, this limits the help that he or she may be given.

In deciding what action to take, the rights of all people to make choices and take risks and their capacity to make decisions about arrangements for investigating or managing the abusive situation should be taken into account.

If the adult does not want intervention, their rights and wishes should be upheld. Failure to do so would be violation of Human Rights Act and would therefore have legal implications. However the person should be enabled to access independent advocate services. (see appendix 5)

It will not however limit the action that may be required to protect others who are at risk of harm. In such instances, it maybe appropriate for the Safeguarding Adult Manager to hold a strategy meeting.

On each occasion / incident obtain appropriate legal / medical guidance. (Section 47 National Assistance Act 1948).

If an adult does not want intervention, the Safeguarding Adult Manager, should ensure, the adult is enabled to access appropriate services. This should be recorded on the adults file.

For further guidance refer to the Mental Capacity Act and Deprivation of Liberty Safeguards .

Confidentiality

Information about a client/patient should only be used for the purpose for which it was intended.

The worker’s line manager will always be informed and staff (including volunteers) will be made aware, through training that information shared with them during the course of the work is information that belongs to the agency. Decisions about what do to with the information are not theirs alone.

Decisions to share information with other agencies will be made by the agency. Information will be shared only on a ‘need to know’ basis. Where possible the worker will secure the explicit consent of the vulnerable person before sharing information with other agencies. In exceptional circumstances the responsibility to protect either the person being abused or other adults will outweigh this principle.

Refer to the Information Sharing Protocol (appendix 7)

Section 2 - Procedure

Stage1	Initial Response	24 hours	Assess situation
Stage 2	Investigation	8 days	Collate factual information
Stage 3	Safeguarding Adult Conference	8 days	Agree protection plan
	Recording	On-going
	Incident form to Safeguarding Adults Team	15 days

The Core Procedure to follow in all cases of abuse is outlined below. It is produced in the form of a flow chart (appendix 6)

Alerting and Reporting Abuse

Identifying abuse

Many people might suspect abuse is taking place including members of the public or relatives or friends of the adult concerned. It may be that they are familiar with the procedures and know that they should contact the Safeguarding Adults Co-ordinator but they may inform the care worker or any person that they perceive to be in authority.

If any member of staff in any of the agencies that have subscribed to these guidelines identifies or suspects or is informed about suspected abuse then they must follow these procedures.

Is the adult in immediate danger?

If you suspect that someone is immediate physical danger you must contact the appropriate emergency service by dialling 999. Being in ‘immediate physical danger’ could include

Somebody being beaten up
Somebody being seriously hurt
Somebody whose life is at risk

When the person is out of immediate danger, the carer or who ever normally looks after them, should be informed (unless it is they who are suspected as the abuser).

Is the person being sexually abused or has another Criminal Offence been committed?

If you suspect that the person is being sexually abused then, whichever agency you work for, the police should be informed. If there is no evidence of sexual abuse but you believe another type of criminal offence has been committed the same procedures should be followed.

If the abuse has just happened then it should be immediately reported to your line manager and to the police. Delay could result in loss of evidence. If there is the possibility that there is forensic evidence then do not attempt to clean up. You must also take into account the wishes of the victim. Any decisions made which are contrary to the wishes of the victim need to bear in mind the legal position in relation to capacity and consent.

Is there a need for a Medical Examination?

There are two reasons for seeking a medical examination. Firstly and most importantly the person may need medical treatment and secondly the examination might provide evidence that could useful if there is a prosecution. Safeguarding Adults in Tameside.

The consent of the victim must be sought. If it is believed that a criminal offence has taken place, the manager must contact the Police and discuss the requirement of a police surgeon to perform the examination.

In other circumstances, a hospital doctor or the victim’s own doctor can undertake the medical examination. In cases involving suspected sexual assault, any delay may jeopardise medical treatment or the collection of valuable forensic evidence. Under these circumstances the Police should be called and action taken to preserve evidence e.g. Clothing from the victim and suspect, bed clothes etc.

If the abuse has only just happened and you are the first person on the scene then it is important not to destroy (or clean up) possible evidence e.g. do not wash the sheets or destroy any blood stained clothing.

If the abuse happened some time ago the Safeguarding Adult Manager will arrange a medical examination if this need is indicated.

If a decision is made not to seek a medial examination, the reasons must be recorded.

Did the abuse happen recently or a long time ago?

It does not matter. The procedure is the same. Tell your line manager who will then take it to the next stage. Remember that if sexual abuse is suspected or alleged then the police must be involved, even if you are employed by a different agency.

If it is your immediate line manager who is the suspected abuser then you can bypass him or her and go to their line manager or a member of your agency’s senior management team or the Community Services Executive Director (Adults). The responsibility of your line manager (or whoever from the above list that you report it to) is to contact your agency’s ‘Safeguarding Adult Manager’.

Initial Response and Investigation

Initial Response

Every reported or suspected incident of an adult being at risk must be responded to within 24 hours. This initial response will always be undertaken by a Safeguarding Adult Manager. The Safeguarding Adult Manager may consult with appropriate staff and agencies to obtain factual details.

The Initial response is an assessment of what action needs to be taken to undertake an appropriate and effective investigation. This is the basis for the strategy meeting. Once a strategy meeting has taken place the Safeguarding Adult procedure has been invoked.

On occasions Safeguarding Adult Managers may require clarity whether to proceed with a Strategy meeting. The Safeguarding Adults Co-ordinator can be contacted to discuss this and Safeguarding Adult Managers are encouraged to use the network of Safeguarding Adult Managers across Tameside to share working knowledge and experience of the procedure.

Invoking the procedure could have an impact on people human rights and if this is in doubt, Safeguarding Adult Managers should seek legal advice in line with their own organisations guidance.

The organisation that raises the concern becomes the lead organisation for a safeguarding adult investigation. They will have responsibility for arranging a strategy meeting.

What is a Strategy meeting?

It is the responsibility of the Safeguarding Adult Manager who has been made aware of the concerns for an adult, to arrange and chair the strategy meeting.

The meeting is to discuss how, who and when an investigation should take place. The Safeguarding Adult Manager will decide which appropriate personnel attend a strategy meeting from the relevant agencies. This meeting will also identify who will be the Safeguarding Adult Manager who is to lead the investigation and therefore, arrange and chair future meetings.

This discussion takes place within 24 hours of an organisation being made aware of the concerns for an adult.

The Joint Commissioning and Performance Management Team are to be invited to all strategy meetings for incidents that occur in CQC regulated services.

It is considered best practice that strategy meetings take place ‘face to face’. However, if this is not possible it is acceptable to hold a strategy meeting via the
phone or e-mail.

In planning the response a range of issues will need to be considered:

Does the adult need immediate help?
Is this person an adult in the context of Safeguarding Adults?
Should an appropriate person in the Adult Services, Health Agencies,
Police, CSCI be asked to undertake the initial response?
Is the person known to another service and how should they be involved?
When was the last time the person was seen?
What are their rights and wishes?
Does the person have capacity?
How can access be gained, ensuring adults safety?
Is there a need to work jointly with other agencies?
Is there more than one adult at risk?
Is there likely to be a request for alternative accommodation?
Is the alleged perpetrator staff?
Should the Independent Safeguarding Authority (ISA) register be notified?

The answers to these questions will help to determine the next stages. Where an investigation involves CQC regulated services the Joint Commissioning and Performance Management Team should be invited.

Who should carry out the initial response/investigation?

Refer to guidance regarding ‘What is a strategy meeting’ to define who would be the lead Safeguarding Adult Manager.

The ‘Safeguarding Adult Manager’, in consultation with you and your line manager should make a decision as to who should undertake the initial response/investigation.

It may be that as a result of the initial response it is decided that further assessment is required.

Investigation

The information collated at the initial response stage will inform the strategy meeting for planning the investigation
The Safeguarding Adult Manager will make a decision who should undertake the investigation
Before proceeding with an investigation a strategy meeting should be held.
What are the objectives of the investigation?
Establish the facts
Assess the needs of the adult for protection, support and redress
Decisions made with regard to what follow up action should be taken with regard to the perpetrator, service area/organisation.

When should an investigation be complete?

An investigation should be completed within 8 days of the incident first being reported (this includes Safeguarding Adult Conference).

Agencies need to remember a co-ordinated multi-agency investigation will achieve more than a series of separate investigations.

The Safeguarding Adult Manager leading the investigation should take responsibility for notifying all organisations involved that the incident has been investigated.

The Safeguarding Adults process is complete when:

the investigation has concluded and
an outcome has been defined
if required a protection plan has been identified.

What information should be recorded?

Only factual information obtained during the course of the initial response/investigation/Safeguarding Adult Conference should be recorded and retained on the adults file. (Reference should be given to the multiagency information protocol).

Part A Safeguarding Adult Reporting Form 53.78 KB should be completed when an organisation is aware that there is a risk to an adult and may need to gather additional information prior to deciding to invoke the procedures. The form should be forwarded to the Safeguarding Adults Team. The form should be returned to the Safeguarding Adults Team within 15 days of the incident first being reported.

A strategy meeting template should be completed when the Safeguarding Adults procedure has been invoked and is in stage 1 of the process (see generic flowchart). This should be returned to Safeguarding Adults Team after the strategy meeting.

Conference Minute templates - Safeguarding Adults Conference Minute template should always be completed when a Safeguarding Adults Conference has been held.

These templates have been designed to provide consistency across all organisations and follow a logical process to record, the discussion of the meetings

Part B Safeguarding Adults Reporting Form 53.78 KB should be completed when the safeguarding adults process is complete i.e when an investigation has been concluded and a protection plan if required is in place.

The form should be returned to the Safeguarding Adults Team within 15 days of the first incident being reported.

The Safeguarding Adult Team support TASP to progress chase all concerns and investigations and monitor the Safeguarding Adult activity in Tameside . TASP review the safeguarding adult framework on a quarterly basis and produce an Annual Report. Organisations also undertake individual audits.

Safeguarding Adult Managers and TASP leads will receive appropriate reminders periodically regarding current safeguarding concerns.

Risk Assessments

All organisations have risk assessments designed to assess the risk of a vulnerable person in a given situation.

Risk assessments also consider the risk to staff in situations. All staff should be aware, and have a responsibility to ensure that they do not put themselves at risk when dealing with any incident/investigation.

Safeguarding Adults procedures are not invoked in isolation of risk assessments.

The Safeguarding Adult Manager is responsible for ensuring a risk assessment has been invoked and constantly review the situation. A risk assessment will always be carried out at a stage 1 of the Safeguarding Adults procedure. These will be documented on the relevant forms and tracked during the stages of the procedure i.e.

Strategy meetings
Protection plan
Incident Forms

These documents will record the multi-agency response to risk and organisations internal risk assessments documents should also be completed and presented at the appropriate internal forums.

For details with regards to risk assessments in your organisation speak to your line manager or risk manager.

Serious Case Reviews

Tameside Adult Safeguarding Partnership will undertake lead responsibility for co-ordinating a Serious Case Review. A need for a Serious Case Review should be determined when:

A vulnerable Adults has died (including death by suicide) and abuse or neglect is known,
A vulnerable adult has sustained a potentially life-threatening injury or sustained serious and permanent impairment of health or development and abuse or neglect is known, or suspected, to be a factor and there are concerns about the way in which agencies work together to safeguard adults
A vulnerable adult has suffered serious sexual abuse and there are concerns about the way in which agencies work together to safeguard adults.
a vulnerable adult is confirmed, or suspected, of being abused or neglected and the case is likely to be of public concern. This may include incidents of serious abuse within an institution or when multiple abusers are involved.
The Adult Safeguarding Partnership can also consider conducting a Serious Case Review into any incident(s) involving a vulnerable adult where it is believed to be in the public interest to conduct such a review.
The secretary of state also has authority under the Local Authority Social Services Act 1970 to cause an enquiry to be held where (s)he considers it advisable.
Any agency or professional body may refer such a case to the Adult Safeguarding Partnership seeking a Serious Case Review to establish if there are important lessons for inter-agency work to be learnt from a case.

Safeguarding Adult Managers are key individuals in recognising the need to consider holding a Serious Case Review. If they become aware of a case that fits the criteria outlined they should inform their respective TASP lead as soon as possible by use of internal structures within their own organisation in order that their concerns are discussed and acted upon accordingly.

Police Involvement

The best interest of the victim, as well as their wishes, must be paramount considerations when making decisions.

If an adult was considered to be in immediate danger then the police should have been informed at the very beginning. If this was not the case then the Safeguarding Adult Manager will consider and decide if it is appropriate to consult with the Police and will agree any joint working with them. The Safeguarding Adult Manager will record the outcome of this discussion with them. A decision not to consult with the Police will not prevent future discussion with them. However, given that much abuse constitutes a crime, the sooner the police are involved the better.

The following points should be remembered:

If criminal offences are alleged or suspected, then consultation with the police must take place. Early sharing of an investigation and assessment with the police will prevent the Adult and carer having to be interviewed twice if a referral to the Police is subsequently considered necessary;
Early consultation can result in advice which may assist staff in deciding whether a criminal act has been committed.
Early consultation will also assist in the preservation of evidence and allow for the early interviewing of victim and witnesses;
Early consultation will give the Police the opportunity of determining if and at what stage they need to be involved;
The Police may be in possession of additional information which could be useful in the investigation/assessment

Consent

An adult must give consent for their information to be shared with relevant organisations. If others may be at risk of abuse due to non-intervention, this must be explained to the adult and the information shared on a need to know basis.

Police consultation must take place if:

Non accidental injuries are apparent or suspected;
Sexual offences are believed to have taken place;
Financial abuse by theft or misappropriation of funds is suspected;
The service user wished the matter to be referred to the Police, even if the service considers this to be inappropriate.

The Police have a duty to victims of crime to assist, support and collect evidence, where a report of crime is made and to investigate and interview any identified suspect.

This consultation process and any other subsequent police action may not result in proceedings being instituted. It may be necessary to obtain the views of the Crown Prosecution Service as part of the prosecution process. Consultation with the Police should be with the Police Safeguarding Adult Manager (SAM) who can assess if the offences have been committed and the appropriate police response. If the Safeguarding Adult Manager is not available and advice is needed promptly, then contact should be made with the appropriate CID office.

Medical Examination

In cases involving physical or sexual abuse, decision regarding medical examination will be taken jointly with the police and Adult. It is likely that a police surgeon will conduct the examination and in appropriate cases the facilities of the St Mary’s sexual assault referral centre should be used.

The consent of the vulnerable person for medical examination must be obtained and if possible, the vulnerable person should be accompanied by someone who knows them well.

If it is decided not to seek a medical examination where the nature of the complaint would normally require it, the reasons for this must be recorded.

Timescales

A criminal investigation can exceed the 8 days specified for a Safeguarding Adults investigation. It is therefore, imperative, that the risk for the adult and the alleged perpetrator is continually assessed.

It will be the responsibility of the Police Safeguarding Adult Manager to identify an officer who will inform all relevant organisations on a regular basis with the progress of the investigation. How and when this information will be relayed will be agreed at the initial Strategy Meeting.

Other Assessments

If future help is needed to establish what has happened a referral should be made by the Safeguarding Adult Manager for other assessments to the appropriate people, such as financial audit an psychological assessment.

Achieving Best Evidence

It is acknowledged that the mental or physical disabilities of a person will influence their experience of the criminal justice process. An over emphasis and lack of consideration of the ability and strengths can lead to potential witnesses being screened out, and an undue anxiety about the credibility of witnesses. Clearly this can result in a denial of justice to vulnerable people.

The Youth Justice and Criminal Evidence Act 1999 is intended to improve the protection during the criminal justice process for Vulnerable or Intimidated witnesses including children. The act sets out a range of special measures to assist vulnerable or intimidated witnesses to give their best evidence in criminal proceedings.

A witness is defined by the act as being eligible for special measures to assist them to give evidence in court if vulnerable because they are: -

Children under the age of 17, whether appearing as defence or prosecution witnesses.
Witnesses suffering from mental disorder as detailed in the Mental Health Act 1983.
Physically disabled witnesses
Witnesses significantly impaired in relation to intelligence and social functioning.
Witnesses suffering from fear or distress in relation to testifying

Special measures available:

Screening the witness from the accused
Evidence by means of a TV link
Evidence given in private in cases involving sexual offences or intimidation
Removal of wigs and gowns
Video recording of an interview to be admitted as evidence in chief
Video recorded cross examination or re-examination
Examination of witness through an intermediary
Aids to communication

Greater Manchester Police and 10 local authorities joined together and developed agreed protocols in September 2003. At a local level the police are working in partnership with Social Care and Health, they have set up a dedicated interview team who are trained in awareness and recognition of vulnerability and intimidation. Information will be gathered related to how best to interview in relation to the individuals disability/illness/impairment. With Social Care and Health the emphasis is on the value of social support through all stages. There are three types of support offered: -

Interviewing
Pre-trial treatment of witnesses
Appearance at court

If the adult was considered to be in immediate danger then the police should have been informed at the very beginning.

If this is was not the case then the Safeguarding Adult Manager will consider and decide if it is appropriate to consult with the Police and will agree any joint working with them. The Safeguarding Adult Manager will record the outcome of this decision. A decision not to consult with the Police will not prevent future discussion with them. However, given that much abuse constitutes a crime, the sooner the police are involved the better.

Out of Borough

The Safeguarding Adults Policy includes, residents living outside of the authority in residential homes supported by TMBC Should an investigation be required in response to an incident of abuse, in these circumstances, the appropriate Safeguarding Adult Manager will implement Tameside Policy Procedures and Guidelines in conjunction with host authority. (see appendix 8)

Good Practice Guidelines for Investigators/Assessors

Investigators/assessors should:

Identify themselves by name, position and agency and leave a written contact;
Explain why they are visiting;
Speak directly with the person who is at risk;
Have regard to issues relating to privacy;
Consider whether an advocate is needed;
Have regard to the person’s communication needs (language, sign, memory, etc);
Establish what has happened – when, to whom, by whom and to assess the general well being of the person who is thought to have been abused;
Identify the physical and psychological needs of the person;
Consider the domestic arrangements – who does what.

It is important the adult knows how to contact the assessor. They may not want to communicate immediately but may wish do so after.

A judgement will need to be made about carer’s needs and a carer’s assessment may be needed.

In undertaking a comprehensive assessment a broad range of information should be collected and the outcome should be some understanding of what is happening and how they can be helped. How this is done involves professional judgement bearing in mind that the person who is being abused should be at the centre of everything that is done.

Staff need to remember that the person has/is suffering from an abuse of someone’s power which makes the need to work in non oppressive ways all the more significant.

When you are leaving the situation after the initial investigation it is important that the person knows what they can expect from you as a result of the initial response or assessment, e.g. if extra home care is to be provided or whether they will be changing accommodation or there will be changes in staff supporting them. Most importantly you must make sure that, as far as is possible, the person is not at risk as a result of your visit.

You must provide:

A clear review of what has happened;
A clear review of what has been concluded;
A clear statement of what is going to happen next and what additional support is to be provided;
A clear indication of who is going to be informed;
A clear indication of who may visit and why.

Recording the process

At all stages there needs to be a written record of all the decisions that have been made and why. The Safeguarding Adult Manager will ensure that a careful record is kept of all observations and the content of all the interviews, which take place. They will also record any observations of injury or stress which the abused person or the carer might be presenting. They will also need to keep in mind the requirements of the agency’s monitoring procedures.

What information should be recorded?

Part A of the Safeguarding Adults Reporting Form - should be completed when an organisation is aware that there is a risk to an adult and may need to gather additional information prior to deciding to invoke the procedures. This form should be forward to Safeguarding Adults Team.

A strategy meeting template - should be completed when the Safeguarding Adults procedure has been invoked and is in stage 1 of the process (see generic flowchart). This should be returned to Safeguarding Adults Team after the strategy meeting.

Conference Minutes templates - Safeguarding Adults Conference Minute template should always be completed when a Safeguarding Adults Conference has been held.

These templates have been designed to provide consistency across all organisations and follow a logical process to record, the discussion of the meetings

Part B of the Safeguarding Adults Reporting Form should be completed when the safeguarding adults process is complete i.e when an investigation has been concluded and a protection plan if required is in place.

Monitoring

TASP requires a quarterly audit of the number and nature of referrals related to abuse and neglect that have taken place in that quarter and an annual audit of after care provision.

The Safeguarding Adult Conference

Is there a need for a Safeguarding Adult Conference?

A conference should always be held when any of the following circumstances apply:

It is concluded that the adult has been abused;
There is a need to establish whether or not the person has been abused;
When services from other agencies need to be co-ordinated;
When significant resources are required;
When the adult appears unable to make informed consent;
If the adult is returning to the setting of the abuse;
The responsibility for evaluating and monitoring the situation is to be transferred to another agency.

When should the Safeguarding Adult Conference be held?

The Safeguarding Adult Conference should be held within eight days of the initial response. In exceptional circumstances this time period can be extended if the Safeguarding Adult Manager believes this to be appropriate.

The Safeguarding Adults Co-ordinator should receive notification of delay of Safeguarding Adult Conference, informing TASP as appropriate.

The objectives of a Safeguarding Adult Conference are;

To hear the findings of the investigation from all parties concerned;
Devise a Protection Plan to reduce the possibility of further abuse or to support the person to improve the situation;
Identify resource implications and gain multi-agency perspective and agreement to the Protection Plan;
Gain the perspective and agreement of the Adult, at the centre of the investigation;
Set date for review of Protection Plan.

Who has responsibility for the Safeguarding Adult Conference?

The Safeguarding Adult Manager from any of the mandatory agencies can call a Safeguarding Adult Conference. The Safeguarding Adult Manager of the appropriate service provider will chair the Safeguarding Adult Conference.

They will be responsible for identifying appropriate people to invite, making a judgement as to the appropriate size of the conference and venue to accommodate the adults communication and access needs;
The Safeguarding Adult Manager will define the outcome and appropriate date for review of Protection Plan.

Who should be present at the Safeguarding Adult Conference?

People invited should be those who can contribute to the understanding of the situation or who can assist with services;
In principle the adult that the meeting is about should always be present –unless there are very good reasons why not;
Usually primary carers should be invited to the Safeguarding Adult
Conference (with the abused person’s permission). If it is suspected that the carer is the abuser a professional judgement will need to be made.

What is recorded at the Safeguarding Adult Conference?

Minutes of the Safeguarding Adult Conference are retained on adults file;
Details of Protection Plan, which will identify Aftercare and link directly to relevant Care Plan. The Protection Plan will be retained on the adults file and reviewed, within appropriate timescale, agreed at the Safeguarding Adult Conference;
Safeguarding Adult Conference details on Incident form to be forward to
Safeguarding Adults Team within 15 days of the initial response.

Providing long term support for the adult

We must continue to support those who have been abused and do so in ways that are meaningful to them. In essence the person who has been abused is at the centre of our work and may continue to relive what has happened to them. As well as offering as much protection as possible it may be appropriate that additional counselling or continued support be offered. There are many groups and specialist organisations that can provide ongoing support and advice. The protection plan should be reviewed within appropriate timescale, agreed at Safeguarding Adult Conference.

Section 3 - Prevention

Concern System

The main purpose of the enquiry/concern system for Protection of Adults is prevention.

The Enquiry/Concern System has three main functions: -

A trigger to raise awareness of an adult at risk
An audit tool to monitor activity in response to the Safeguarding Adults agenda in Tameside
Information shared between partner organisations

Part A of the Safeguarding Adults Reporting form is completed by any organisation that has concerns about an individual’s vulnerability and is forward to the Safeguarding Adults Team.

Part A of the Safeguarding Adults Reporting form may also be completed if there are general concerns regarding practice in an organisation or establishment. This form is also forwarded to the Safeguarding Adults team.

Actions taken in response to enquiries

Level 1

This is an concern, which identifies a single concern about an adult and is documented on Part A of the Safeguarding Adults Reporting form by one agency.

Action: Concerns are ‘ case managed’ within own organisation. Part A of the Safeguarding Adults Reporting Form is sent to the Safeguarding Adults Team and remain dormant unless there are additional enquiries.

Level 2

Level 2 Evidences multiple concerns about one adult or establishment. Part A of the Safeguarding Adults reporting Form is sent to the Safeguarding Team. Additional enquiries identified and Safeguarding Adult Managers informed of all relevant concerns. This is with a view to a possible strategy meeting involving all relevant organisations.

Appendices

Legal Framework

Many incidents of abuse may involve unlawful acts. Before embarking on any legal proceedings advice should be sought from the respective legal section of the various organisations.

At present the supporting legislation is a patchwork and there are various sections of various Acts that give powers in different situations.

In cases of domestic abuse the most relevant legislation is the recent Family Law Act (1996), the Mental Health Act (1983) and National Assistance Act (1948). In cases of institutional abuse the most relevant legislation is likely to be the Care Standards Act (2000). The Public Interest Disclosure Act (1998) offers protection to those who whistleblow about activities within their organisations. The Housing Act (1996) and The Protection from Harassment Act (1997) may also be relevant in certain cases.

Family Law Act (FLA) 1996

Part 4 of the Family Law Act l996 came into force on l October l997. The Act unifies the law and procedure with respect of domestic violence and repeals certain earlier statues covering that field of work. It enables the Court in civil private law proceedings to make various orders in respect of domestic violence, e.g. Occupation Orders and Non-Molestation Orders. In many ways it is not dissimilar to the previous legislation and includes provisions for Power of Arrest to be attached to Orders made.

The two relevant Orders are:

The Non-Molestation Order which prohibits a person from molesting another person who is associated with them. The definition of ‘associated person’ is contained in Section 62(3) FLA l996 and is wide enough to include married couples, cohabitees or people living in the same household otherwise than in a relationship of employee, tenant, lodger or boarder. Relatives are also included. Power of Arrest can be attached to a Non-Molestation Order or an undertaking can be given not to repeat the type of behaviour the Court is concerned with.

Occupation Orders: Section 30 to 32 FLA l996 deals with the rights to occupy a family home. Sections 33 to 41 deal with the Orders that the Court can make to regulate those rights and they are known as ‘Occupation Orders’.

The legal rights to occupy property are various and can often be legally complex and will depend on the circumstances of each individual case. What type of occupation order an applicant is likely to get (if any) will depend on what legal rights they can establish – broadly speaking, the better their legal right to occupy, the wider ranging the occupation order can be.

An example of the type of matter the Court can regulate when making an Occupation Order is ‘enforcing an applicant’s right to remain in occupation as against the other person’, ‘regulating the occupation of a dwelling house by either or both parties’, ‘requiring a respondent to leave the dwelling house or part of the house’, ‘excluding the respondent from a defined area in which the dwelling house is included’. Clearly it would be important to advise any client to seek their own legal advice as soon as possible, taking as much information about their right to occupy the property to their Lawyer as soon as possible.

Mental Health Act (MHA) 1983

Section 115: Powers of Entry and Inspection. An approved social worker may at all reasonable times enter and inspect any premises in which a mentally disordered adult is living, if she/he has reasonable cause to believe that the patient is not under proper care. Section 115 does not allow an approved social worker to force entry, although obstruction may be an offence under Section 129, and the approved social worker can apply for a warrant under Section 135. The approved social worker should produce an authenticated document establishing their identity if requested to do so.

Section 135 allows an Approved Social Worker to apply for a warrant to search for and remove adults where there is a reasonable cause to suspect that an adult believed to be suffering from a mental disorder has been, or is being, ill-treated or neglected or not kept under proper control or is unable to care for himself or herself and is living alone. The adult need not be named in this warrant, so this allows for investigation of suspected mistreatment of people whose identity is unknown but whose whereabouts are known. The evidence used to obtain this warrant can be about mistreatment in the past and therefore allows for accumulation of evidence over a period of time. The warrant authorises a constable to enter, if need be by force, the premises and if thought necessary remove to a place of safety,

Section 136 allows for a Police officer to intervene if the mentally disordered adult is in a public place (e.g. wandering outside at their home). The person must be in immediate need of care and control. The person can be removed to a place of safety for up to 72 hours.

Section 13(4): Duty to make application for admission. This places a duty on the Social Care and Health Department to direct an approved social worker to consider making an application for admission under the Act, if requested to do so by the nearest relative. This power could be used if the nearest relative of a mentally disordered adult complains of mistreatment by a third party, provided grounds exist under the MHA.

Section 2, 3 and 4: Admission to hospital. These sections give power to an approved social worker to authorise the admission to hospital of a mentally disordered adult, if she/he is satisfied the criteria for compulsory admission are met as per the provisions of the MHA.

Section 7: Guardianship. An Adult can be received into guardianship by the local authority if she/he has a mental illness, severe mental impairment or mental impairment associated with ‘abnormally aggressive or seriously irresponsible conduct’ or a psychopathic disorder which results in ‘abnormally aggressive or seriously irresponsible conduct’. The Guardianship must also be ‘necessary in the interests of the welfare of the adult or for the protection of other persons’. The ‘welfare of the patient’ is interpreted broadly.

Guardianship gives the guardian three basic powers:

To say where someone is to live
To require the adult to attend somewhere for the purpose of medical treatment, occupation, education or housing
To gain access to the patient at a place in which someone is living.

There is a necessity to consult the nearest relative when considering guardianship. If the nearest relative is the perpetrator of mistreatment then consideration should be given to whether the circumstances would allow an application to be made to a County Court to displace the nearest relative (Section 29).

It has been argued that, in the case of mental impairment, failure to remedy mistreatment of the mentally impaired victim is seriously irresponsible conduct’ and thus a guardianship order could be granted. This would depend upon the assessing Psychiatrist.

Section 25A: An application may be made for a detained patient to be supervised after he leaves hospital.

Section 127: Ill-treatment of patients. This section makes it an offence for an officer on the staff or otherwise an employee, or a manager of a mental nursing home or hospital, to ill-treat or wilfully neglect’ a patient who is either:

Currently receiving treatment for mental disorder or an in-patient in that hospital or home
A patient receiving treatment as an out-patient.

Furthermore, under sub-section (2) ‘It shall be an offence for any individual to ill-treat or wilfully neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)’. This sub-section has rarely been used but potentially could include the mistreatment of a mentally disordered adult by any carer – informal or otherwise.

Mental Capacity Act

The Mental Capacity Act 2005, implemented in April 2007, provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The act defines who can take decisions, in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity.

The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity.

The Act deals with two situations where a designated decision maker can act on behalf of someone who lacks capacity:

Lasting Power of Attorney (LPA)
Court appointed deputies

The three provisions in the Act to protect vulnerable people are:

Independent Mental Capacity Advocate (IMCA) – an independent consultant will be provided for a person lacking capacity that has no one to speak for them.
Advance decisions to refuse treatment – Statutory rules with clear safeguards confirm that people make a decision in advance to refuse treatment if they should lose capacity in the future. The Act sets out the circumstances in which advance decisions may be followed by doctors.
A criminal offence to mistreat or wilfully neglect a person who lacks capacity.

There are clear parameters in the Act for research into mental capacity. Research ethics committee will agree the project is necessary, the person is willing to participate and if family member or carer advises that the person would not decline to take part.

Deprivation of Liberty Safeguards

The Mental Capacity Act Deprivation of Liberty Safeguards is a new law, which came into force on 1st April 2009.

Deprivation of Liberty has no clear definition. Many people in hospitals and care homes may have their liberty restricted but not all will be deprived of their liberty. The following factors need to be considered:

Whether Professionals have complete and effective control over assessment care, treatment, contacts, movement and residence.
Whether the person will be under constant supervision and control and not free to leave
Whether restraint is used including sedation
Whether the person would be prevented from leaving if they attempted to do so.
Whether a request from carers for the person to be discharged into their care is likely to be agreed
Whether the person can maintain social contacts
Whether the person has choice about their life within the home or hospital

The Safeguards apply to anyone:

Aged 18 or over
who suffers from a mental disorder or disability of the mind- such as dementia or a profound learning disability
who lacks the capacity to give informed consent to the arrangements made for their care and or their treatment and
for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm.

IMCA

The Mental Capacity Act creates a new service, the Independant Mental Capacity Advocate (IMCA) service.

Its purpose is to help vulnerable people who lack capacity who are facing important decisions made by the NHS and local authorities about serious medical treatment and changes of residence- for example moving to a hospital or care home.

NHS bodies and Local Authorities will have a duty to consult the IMCA in the decisions involving people who have no family or friends.

Local authorities and NHS Trusts will be required, when making important decisions about serious medical treatment or change of accommodation for people who lack capacity, to appoint an IMCA to represent the individual if there is no-one else to support them. Regulations passed in the autumn 2006 extended the powers of local authorities and the NHS to instruct IMCAs in certain cases, The IMCA's advice must be taken into account in the decision.

The National Health Service and Community Care Act (1990)

Section 47 Requires local authorities with a Social Care and Health responsibility to carry out an assessment of need where people appear to them to be in need of community care services.

Section 47 Of the National Assistance Act l948 allows a Local Authority to make an application to the Magistrates Court for the removal into appropriate premises of persons who are suffering from grave chronic disease, or are living in insanitary conditions, and, in both cases, are unable to look after themselves, and are not receiving proper care and attention from other persons.

These two powers will be available only in a small minority of situations. Section 47 would be wide enough only in exceptional circumstances to enable a Local Authority to take into residential accommodation a person who was the subject of verbal or physical abuse.

So far as financial abuse is concerned, the position is somewhat more complicated.

One of the following remedies may be available to protect the victim.

In some cases Section 47, The National Assistance Act l948, could be wide enough to cover the situation of a person whose benefits were being misused to the extent that the other conditions set out above were satisfied.

Receivership: The Local Authority can apply to the Court of Protection for a Receiver to be appointed to deal with the affairs of an individual. This would certainly stop financial abuse but the two limitations on the use of this power are firstly, that the person must be basically unable to look after themselves and secondly that by its very nature it is not a particularly appropriate remedy in the case of a person whose sole or main income is a state benefit.

Lasting Power of Attorney: The vulnerable person can, through a legal process, bestow their rights over their financial affairs to a relative, friend or professional. That person is then legally entitled to act for them by the ‘Power of Attorney’.

Appointee: A vulnerable person can approach the Benefits Agency (BA) and appoint a relative, friend or professional to deal with their financial affairs. Forms are available from the BA. If the Benefits Agency is alerted to concerns by any professionals the procedure is to interview the person and proposed appointee before making a decision. The agency is also willing to put a stop on Benefit but only if contacted by a professional who has the consent of the claimant. This can be useful in cases where someone has taken possession of a Benefits book and the vulnerable person is not receiving their rightful money. The BA will then investigate the circumstances and the vulnerable person will be asked if there is anyone else who could be made an appointee.

Agent: A vulnerable person can authorise another person to collect their state benefit for them by signing the back of the pension benefit form.

The Power of Attorney, Appointee and Agent assume that the vulnerable person is able to make the decision. There is no accountability built into these systems and there are no legal means of challenging the person acting for the vulnerable person other than proving that an offence has taken place or challenging by way of the
Court of Protection.

The Care Standards Act (2000)

This Act established the Commission Social Care Inspection. Par VII is specifically concerned with the protection of children and Adults.

Section 81 Of the Act obliges the Secretary of State to keep a list of and maintain a database for the protection of Adults (POVA – DATABASE). Any person who is to be considered for an employment placement that involves working with Adults, will have to be police checked and also the POVA Database will be checked.

Section 82 Provides that a person who provides care for Adults shall refer a care worker to the Secretary of State for the following reasons:

That the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm Adults;

That the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;

That the provider has, on such grounds, transferred the worker to a position which is not a care position;

That the provider has, on such grounds suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.

Crime and Disorder Act 1998

Sections 5-7 and 17 Require local authorities and the police, with other key agencies and the community, to work together and sharing information at district level to develop and implement strategies for reducing crime and disorder in the area.

The Public Interest Disclosure Act (1998)

The Public Interest Disclosure Act (1998) Offers protection to people in the workplace who report abuse or alleged abuse within their organisations.

The Police and Criminal Evidence Act 1984

Section 17: Outlines powers to enter and search premises without a warrant for the purpose of saving life and limb.

Section 25: Allows a police officer, where there are reasonable grounds, to make an arrest of someone to prevent them causing physical injury to another person, or to protect a child or other vulnerable person.

Section 66: In order to actively facilitate communication an ‘appropriate adult’ should be appointed if a vulnerable person is arrested or if they are a witness to abuse.

The Housing Act (l985) Part 3 (Homelessness)

Local authorities have a preventative duty (under Section 66) to take reasonable steps to ensure that accommodation does not cease to become available for applicants threatened with homelessness (para. 10.1 Code of Guidance). The Code of Guidance stresses that much can be done to prevent homelessness. It mentions special reasons for considering people as a priority. One is ‘Men and women without children who have suffered violence at home or who are at risk of further violence if they return home’

Section 72 Of the Act says that a housing authority may seek help from another authority (Housing Association, Housing Authority or Social Care and Health Department) to discharge their duties. The authority asked for help shall co-operate as is reasonable in the circumstances. This will help, for example, a woman fleeing violence who cannot be referred because of having a local connection with an area but feels she would not be safe living in that area.

The Protection From Harassment Act (1997)

This Act creates two new criminal offences. First (s.2 PHA 1997) course of conduct amounting to harassment, penalty 6 months or fine. Secondly (s.4) conduct putting people in fear of violence on at least two occasions, penalty 5 years imprisonment or fine in Crown Court; 6 months imprisonment or fine in Magistrates Court.

When considering making either of the above Orders the Court may make a ‘Restraining Order’ prohibiting a course of conduct. The penalty for breach of this Order could be 5 years and/or fine. NOTE the paragraph 8(3) of the Act creates a new civil course of action in respect of harassment with remedies being damages and an injunction with a penalty in the Crown Court of 5 years and/or a fine, or in the Magistrates Court 6 months or a fine. As of September l998, the new civil court course of action created by s.8(3) had not been brought into force.

No association need be proved between the victim and perpetrator for the purposes of this Act (as is required by the Family Law Act).

The Independant Safeguarding Authority

The Independant Safeguarding Authority's (ISA) role is to help prevent unsuitable people from working or wishing to work in regulated activity that are referred to them on the grounds that they pose a possible risk of harm to vulnerable groups.

There are two principal routes by which referrals are made to the ISA. Firstly, when a person applies for ISA registration, any convictions or cautions which are considered relevant would trigger a referral. The other way a referral would be made is where an employer or an organisation, for example, a regulatory body has concerns that a person has caused harm or poses a future risk of harm to children or vulnerable adults. In these circumstances the employer or regulatory body must make a referral to the ISA.

ADASS Protocol for Inter-Authority Investigation of Vulnerable Adult Abuse

This agreement was ratified by ASASS on 20th February, 2004 and is intended for adaption by all local authorities and Adult Protection Committees.

These arrangements recognise the increased risk to vulnerable adults whose care arrangements are complicated by cross boundary considerations. These may arise, for instance, where funding/ commissioning responsibility lies with one authority and where concerns about potential abuse and/ or exploitation subsequently arise in another. This would apply where the individual lives or otherwise receives services in another local authority area

This protocol aims to clarify the responsibilities and actions to be taken by local authorities with respect to people who live in one area, but for whom some responsibility remains with the area from which they originated.

This protocol should be read in conjunction with Section 3.8 of ‘No Secrets’ (DoH 2000) and LAC (93) 7 Ordinary Residence- Which identifies these responsibilities in terms of

The authority where the abuse occurred in respect of the monitoring and review of services and overall responsibility for adult protection.
The registering body in fulfilling its regulatory function with regard to regulated establishments; and
The placing authority’s continuing duty of care to the abused person.

The authority where the abuse occurs will have overall responsibility for co-ordinating the adult protection arrangements (and, for the purposes of this protocol, be referred to as the host authority)

The placing authority (i.e. the authority with funding/ commissioning responsibility) will have a continuing duty of care to the vulnerable adult.

The placing authority should ensure that the provider, in service specifications, has arrangements in place for protecting vulnerable adults and for managing concerns, which in turn link with local policy and procedures set out by the host authority.

The placing authority will provide any necessary support and information to the host authority in order for a prompt and thorough investigation to take place.

The host authority will make provision in service contracts, which refer to this protocol, outlining the responsibilities of the provider to notify the host authority of any adult protection concern.

Responsibilities of Host Authorities

The authority where the abuse occurred should always take the initial lead on referral. This may include taking immediate action to protect the adult, if appropriate, and arranging an early discussion with the police if a criminal offence may have been committed.

The host authority will also co-ordinate initial information gathering, background checks and ensure a prompt notification to the placing authority and other relevant agencies.

It is the responsibility of the host authority to co-ordinate any investigation of institutional abuse. If the alleged abuse took place in a residential or nursing home, other people could potentially be at risk and enquiries should be carried out with this in mind.

The Commission for Social Care Inspection should always be included in investigations involving regulated care providers and enquiries should make reference to national guidance regarding arrangements for the protection of vulnerable adults.

There will be instances where allegations relate to one individual only and in these cases it may be appropriate to negotiate with the placing authority their undertaking certain aspects of the investigation. However, the host authority should retain the overall co-ordinating role throughout the investigation.

Responsibilities of Placing Authorities

The placing authority will be responsible for providing support to the vulnerable adult and planning their future care needs.

The placing authority should nominate a link person for liaison purposes during the investigation. They will be invited to attend any Adult Protection strategy meeting and/or may be required to submit a written report.

Responsibilities of Provider Agencies

Provider Agencies should have in place suitable adult protection procedures to prevent and respond to abuse which link with the local inter-agency policy and procedures set out by the host authority.

Providers should ensure that any allegation or complaint about abuse is brought promptly to the attention of Social Services, the Police and /or the Commission for Social Care Inspection in accordance with local inter-agency policy and procedures.

Provider agencies will have responsibilities under the Care Standards Act 2000 to notify their local CSCI area office of any allegations of abuse or any other significant incidents.

Provider agencies who have services registered in more than one local authority area will defer to the CSCI area office to relevant to the area in which the abuse took place.