Safeguarding is an increasingly important area of Community Care Law, and exists to ensure that people are being properly cared for and protected from harm, exploitation or manipulation. However, it can also be extremely complex. Here, our Community Care Law team answer some of the most frequently asked questions about safeguarding vulnerable adults.
We use the Law Commission’s definition as “a person who is 18 years of age or over and who is or may be in need of community care services by reason of mental or other disability, age or illness, and who is or may be unable to take care of him/herself or unable to protect him/herself against significant harm or serious exploitation”.
Government consensus is that the word ‘vulnerable’ may have negative connotations for the individual concerned, so Health and Social Services will now use the phrase ‘Adults at Risk’.
Best Interest generally refers to a method for making decisions that aims to be more objective than the old subjective test used by Health & Social Services practitioners. It requires the decision maker to think what the best course of action is for the person and should not be the personal views of the decision maker. The meeting gives family members the chance to express the prior wishes and religious and cultural influences that need to be taken into account when deciding on the issue that is affecting the vulnerable adult.
Social Services can inform people that they have reason to believe that there has been neglect, harm or abuse to an adult at risk and that a safeguarding investigation has been started. The safeguarding alert may be related to:
While of course it is vital that statutory agencies actively investigate any potential safeguarding issues that affect vulnerable adults, in practice the approach adopted by Social Services can sometimes be clumsy and can leave the genuinely motivated carer (who has at worst made a few mistakes) feeling criminalised but with no right to reply. Often this is in the context of not getting the support that they need in order to fulfill their caring role from Health and Social Services. In some cases, the accused is not even told what the allegations are.
Unfortunately there are people with caring responsibilities who purposely take advantage of a vulnerable adult in the ways mentioned above. Those people who are acting in their own best interests rather than the vulnerable adult’s best interests should be held to account and the abuse should be stopped. Because of this, Health and Social Services have to be vigilant in dealing with safeguarding alerts. This means that all safeguarding alerts should be investigated and processes should be followed in order for Health and Social Services to ascertain whether there are things that need to change, or whether the initial concerns are unfounded.
The way that some cases are handled is not always proportionate to the risk that may exist. However on some occasions of course the opposite may be true. Safeguarding investigations can result for example in any of the following:
A family member or carer who is facing an investigation can be supported and advised through the process and represented at a Best Interest meeting. We often find it is possible to resolve the dispute in a way that allows Social Services to feel confident that the vulnerable individual is properly protected, that they have done their duty and that the previous living and caring arrangements can be resumed, perhaps with additional support and some checks and balances for an initial period. We find that when the carer is supported and is able to understand the essential principles of mental capacity and best interest decision making, they are better able to work effectively and in partnership with statutory organisations.
The difficulty is that people quite naturally panic or become defensive when they understand that they are subject to a safeguarding investigation. We argue that the best thing is for all parties to adopt more of a partnership approach and to recognise the need for conciliation. It is easy to see how disputes can escalate in what are often highly emotionally charged situations. Your solicitor will encourage you to be constructive and open when it comes to dealing with the safeguarding process. If you feel that the case is stacked against you then of course your solicitor will help you and advise you as to how to work with safeguarding professionals and safeguarding systems. Your solicitor may be able to attend the Best Interest decision-meeting with you, to help you get your points across to the decision maker.
There is not yet a formal national set of protocols or a national framework, but the Department of Health is working towards this. All local authorities have their own local procedures; and all of them should follow the Best Interest principles set out in the Mental Capacity Act Code of Practice. The decision-maker should always arrive at a decision that is the least restrictive intervention possible for the vulnerable adult, balancing this with an assessment of risk.
You should talk to a specialist legal adviser about the option of applying to the Court of Protection, so that an experienced Judge can review the case and determine what is in the vulnerable adult’s Best Interests.