FAQs: Safeguarding & Best Interest Decision Making

1. What does Safeguarding mean?
2. Who does the Local Authority have a safeguarding duty towards?
3. The social worker is talking about a Best Interest Meeting. What does Best Interest mean?
4. You have been told that a safeguarding alert has been raised in relation to your mother. What does this mean exactly?
5. Why are you subject to Safeguarding inquiries?
6. What kind of power does Social Services actually have in relation to a safeguarding investigation?
7. What should you expect from your solicitor?
8. What is the best approach to take in a safeguarding investigation?
9. What should you do if you disagree with a Best Interest Decision made by Health or Social Services after a safeguarding alert or investigation?

What does Safeguarding mean?

Safeguarding is an increasingly important area of Community Care Law, and exists to ensure that people are being properly cared for and protected from abuse, neglect, 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.

The Care Act 2014 brought in legal provisions for safeguarding vulnerable adults and adults at risk for the first time. Each local authority now has a Safeguarding Adults Board (SAB) consisting of Social Services, the NHS and the Police. Safeguarding Plans and annual progress reports should be published annually. If Social Services reasonably suspect that an adult with care and support needs is at risk of abuse or neglect, then Social Services or the other members of the SAB must make enquiries to establish if any action is required.

When an adult with care and support needs lacks the mental capacity to make decisions for themselves, the Local Authority 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 adult, balancing this with an assessment of risk.

Safeguarding plans must have regard to the following main principles in the new framework:

• Empowerment – the adult being supported and encouraged to make their own decisions and and that there will be informed consent
• Protection – support and representation for those in greatest need
• Prevention – it is better to take action before harm occurs
• Proportionality – proportionate and least intrusive response appropriate to the risk presented
• Partnership – arriving at local solutions through services working within their communities as all have a part to play in preventing, detecting and reporting neglect and abuse
• Accountability – including transparency in delivering safeguarding

Who does the Local Authority have a safeguarding duty towards?

An adult who:

i) Has needs for care and support (whether or not the LA is meeting those needs)

ii) Is experiencing or is at risk of abuse or neglect

iii) As a result of those care and support needs, is unable to protect themselves from either the risk of or the experience of abuse or neglect

The social worker is talking about a Best Interest Meeting. What does Best Interest mean?

Where an adult lacks the mental capacity to make decisions about their health and welfare and/or finances, any decisions made on their behalf must be made in accordance with the Mental Capacity Act 2005. This Act requires the decision-maker to make a decision that is in the adult’s best interests, having regard to all of the relevant circumstances. It requires the decision maker to think what the best course of action is for the person and should not be based on their own personal views.

A best interest decision is often, but not always, made following a meeting involving Social Services, any health and social care professionals involved with the adult’s care, carers, family members and any other person concerned with the care of the adult. The meeting gives carers and family members the chance to express  any prior wishes of the adult, along with any religious and cultural influences that need to be taken into account when making the decision. It also gives carers and family an opportunity to provide their view on what would be in the best interests of the adult concerned.

Best interest decisions should only be taken in relation to specific decisions that an individual lacks the mental capacity to decide for themselves.

You have been told that a safeguarding alert has been raised in relation to your mother. What does this mean exactly?

Social Services can inform people that they have reason to believe that there has been neglect, harm or abuse to an adult with care and support needs and that a safeguarding inquiry has been started. The safeguarding alert may be related to:

• Physical, sexual or emotional harm;
• Poor care that’s not necessarily intentional but the result of a carer/relative being told that they have inadequate skills or experience;
• Domestic violence;
• Discrimination;
• Financial abuse; or
• Institutional abuse

Why are you subject to Safeguarding inquiries?

While of course it is vital that statutory agencies actively investigate any potential safeguarding issues that affect adults with care and support needs, sometimes the approach adopted by Social Services can be clumsy and leave the genuinely motivated family member or 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, this person is not even told what the allegations are.

Unfortunately, there are people with caring responsibilities who purposely take advantage of an adult with care and support needs. Those people who are acting in their own interests rather than the adult’s best interests should be held to account and the abuse or neglect 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.

What kind of power does Social Services actually have in relation to a safeguarding investigation?

The Care Act 2014 sets out the duties that Local Authorities have in relation to safeguarding adults with care and support needs in their area. It gives Social Services wide-ranging power to investigate and take steps to protect an adult with care and support needs in circumstances where abuse or neglect is suspected. However, any action that Social Services takes should be proportionate to the risk of harm to the adult.

In many cases, the reason for the safeguarding investigation will be clear i.e. where there has been direct physical, emotional or financial harm caused to the adult. However, safeguarding investigations can also result from less obvious forms of potential abuse or neglect, for example in the following scenarios:

• The adult being removed from their home to a care setting against their wishes on a temporary or permanent basis
• The carer or family member being denied the right to visit their relative
• The carer or family member being told by a third party that they have to leave the family home so that the vulnerable adult can return there
• The carer or family member being threatened with safeguarding on the basis of financial abuse when they are legitimately challenging decisions about NHS or social services funding. For example, a safeguarding issue could arise if the carer is not paying towards the care package from their relatives’ money because they believe the charge is unfair or incorrect

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.

What should you expect from my solicitor?

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 the statutory organisations.

If agreement cannot be reached and therefore a decision from the Court of Protection cannot be avoided, then your solicitor can represent you.

What is the best approach to take in a safeguarding investigation?

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.

What should you do if you disagree with a Best Interest Decision made by Health or Social Services after a safeguarding alert or investigation?

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 adult’s Best Interests.

If you need advice on Safeguarding and Best Interest Decision Making, our Community Care Law Team can help you. Contact us today on 01273 609911, or email info@ms-solicitors.co.uk.