‘Adult Protection’ is the title given to social services’ ordinary statutory community care assessment and care planning functions, and their functions under the Mental Health Act, when the reason for the referral is a perceived risk to the welfare of a vulnerable adult, usually at the hands of someone else.
There is a potential legal problem here, because the general law treats physically frail people as capable of looking after their own interests, so long as they have mental capacity to take a decision for themselves, or consent or refuse consent to an interference with their own autonomy. Thus, short of persuasion of the person causing concern around to the authorities’ view of the risk being run, there may be very little which may be done to help protect a mentally capacitated but very physically weak or frail person from perceived intimidation.
The following statutory provisions, however, should be seen as adult protection powers because together they constitute a framework for taking actual steps to intervene to prevent harm, just like the provisions in the Children Act allow for emergency protection, prohibited steps orders etc.
s2 Mental Health Act – admitting to a mental hospital for an assessment
s18 Mental Health Act – returning a person under guardianship to a place of safety.
s47 National Assistance Act – removing a person from their home, for reasons of public health or risk to the person concerned, and detention in a place of safety pending resolution of the risk. This is due to be abolished in 2013-15 under the new Care and Support Bill, please note.
s135 and s136 Mental Health Act – powers of entry into the home of a person believed to be mentally disordered, and a power for a constable to convey to a place of safety from there, or from a public place.
The framework for Adult Protection is very much less cohesive than it is for children, and agencies therefore face bigger hurdles to joint working and information sharing than they would if they were trying to protect children. The culture of co-operation between schools, the NHS, social services, lawyers and the police in respect of child protection is long-standing, but vulnerable adults have had to wait for the courts to provide common law remedies, rather than rely on Parliament to have put them into statute. Familiarity with these remedies is therefore bound to be patchy in practice.
It must never be forgotten that those authorities will be working within their own legal and operational constraints, which may appear to stymie much progress. For instance, there is an inevitable risk, under our present system, that the mentally impaired victim of an assault does not start out with the same prospects as a fully capacitated person of seeing their attacker convicted. The criminal justice system is there to prosecute people, and a conviction depends on proof beyond a reasonable doubt – and there will often be a reasonable doubt in the mind of a jury if the witness evidence comes from someone mentally impaired. Thus the Police and CPS are not being deliberately obstructive when they take a decision not to approve papers for prosecution – they are simply working within a system which allows prosecution only when the public interest demands it. The strength and likely credibility of the evidence, and the resources which have to be spent on a full-blown prosecution have to be taken into account by those agencies. Risk of repetition of the abuse to a client, however, which is the only legitimate concern of social services, is an entirely different matter, to that of likelihood of guilt of any particular perpetrator. A health or social services body or private sector provider need only be concerned with the likelihood of guilt, if the alleged wrongdoer is one of their own employees….
In our view it would be reasonable for local authorities to treat the existence of a charge and, beyond that, the transmission of papers to the Crown Prosecution Service for the formal decision on whether to prosecute, as sufficient evidence of risk which makes an incapacitated victim’s continuation in that particular setting unacceptable. In terms of the statute, it could trigger a finding of needs necessitating intervention by the LA, or needs calling for a service, or ‘a need for care and attention … not otherwise available’. In such circumstances the authority must prepare a Care Plan, and if and when that is rejected out of hand by the prospective client and/or their relative or carer, the authority must then decide whether to take one of three further steps – constituting themselves the guardian of the person, under guardianship, making an application for declaratory relief, or using a section 2 order under the Mental Health Act. If the abuse is financial, there are steps which may be taken through the regime of Receivership, which oust another person who has been managing a person’s money, so this too offers a protective option.
The Guidance – NO SECRETS is the government’s major contribution by way of guidance to this field, which requires councils to have adult protection policies and procedures in place. For an analysis of that document, click here ’NO SECRETS’
The biggest changes to adult protection practice have come about through the pervasiveness of the principles in the Mental Capacity Act since 2007. This topic has its own treatment in the Database but the principles of the Act (not assuming that people lack capacity until it is more likely than not, and acting in their best interests if they lack capacity), on top of the fact that safeguarding is only really able to be done through two functions – community care assessment and information sharing, when justified, if consent is lacking, have shaped and informed this area a great deal. This means that safeguarding staff MUST be up to date on the latest case law on who lacks capacity, and what is or is not in a person’s best interests, in order to function within the law as it stands on any given day.
Here are some basic principles of adult protection, which can be used to inform decision making and which will help achieve a Human Rights Act compliant outcome, so long as the reasoning is well documented and evidenced.
- In an emergency it is better to act in the best interests of the person than not to act at all. Notto act could be negligent if the authority is already ‘in charge’, or an unreasonable exercise of the assessment or re-assessment function.
- When the issue is not an emergency but relatives or close friends are suspected of abuse, it is better to seek guardianship or declaratory relief than to continue negotiating with them and rely on their consent to the proposals of the authority. This is because under the former regime, there will be legal precedent supporting the acquisition of a statutory best interests power, and in the latter, the judge decides what is or is not in the best interests of the person cared for. An authority cannot reasonably be criticised for seeking legal authority to act, in cases of dispute.
- Where there is no-one else involved, other than the client lacking mental capacity, the authority must make a strategic decision whether to seek guardianship or rely on an implied statutory best interests power (implied from having assumed responsibility for the person under statutory functions) which is not yet established in law. It is obviously risking challenge in a difficult case, but is inevitably quicker and cheaper to take the stance that the authority should get on and do what there couldbe legal power to do, as declared by a court.
- In all other cases, requiring social work intervention, it will generally be sensible and cost-effective (though not enough to protect the client or the authority, in strict legal theory, from an allegation of trespass/assault) to obtain the consent of relatives, friends or carers, when impairment is severe. This is not because they can consent in law on behalf of the client, but because they are the ones most likely to mount a challenge to the authority’s assumption of decision-making power regarding the person cared for.
- Where medical treatment is required, in an emergency, it will be wiser for the medical professionals to act under the doctrine of necessity, under the Mental Capacity Act on the basis that the person lacks capacity, rather than to section someone under the Mental Health Act for what would then have to be contended, sometimes obviously impossibly, to be medical treatment for the mental disorder. Reliance on the MHA is an inappropriate use of compulsory powers for an inappropriate purpose.
Where safeguarding and adult protection fit, in the ‘Putting People First’ agenda
It makes sense to ask what the notion of ‘safeguarding’ could possibly mean, in an era where social care services are supposed to be letting service users make their own decisions, and use their own networks to get help, and protect themselves from undesirable consequences, In the name of client ‘choice’– even though some of them will lack capacity.
There is both law and guidance currently underpinning safeguarding, and the beginnings of a backlash in relation to alleged abusers, and providers, using the law of procedural fairness, and human rights, to hold councils to account over over-enthusiastic and uninformed safeguarding.
There is also a new system of regulation of social care services, run by the Care Quality Commission – new in, since Autumn 2010.
Where does safeguarding fit, in an era of self- directed choices about support?
Safeguarding is the system, within adults social services’ output, which operates to put particular situations under intensive scrutiny, so as to manage perceived risks to vulnerable people and service users, and to reveal facts about people in the care setting, or work place, which ought to be reported to the police, to any employer, and/or to the Independent Safeguarding Authority for inclusion of the perpetrator on the list of people unsuited to work with vulnerable adults.
The early stages of safeguarding operate differently all over the country, because there is no law of safeguarding which requires a standardised approach. There is DH guidance and professional advice from ADASS, but no common approach to it. So, managing concerns and referrals, planning investigations and working to a coherent plan, which is legal and fair to alleged abusers as well as to victims, differs markedly from council to council.
The reporting bit (to the ISA) of safeguarding process is driven by legal obligations, but the earlier parts of a safeguarding exercise are not done under statutory powers or duties – they’re done under the assessment and care planning legal framework, that makes up our current community care law. So when councils are safeguarding for people choosing to self-fund, they are – in legal form – currently, actually just assessing whether they might be eligible for services of some kind….
…which bits of community care law?
- A safeguarding investigation is currently just an assertive needs assessment or review, in legal terms. A safeguarding plan is just an initial or amended support plan. In an era of personalisation of care services, safeguarding has to become personalised, as well.
- Safeguarding is seen as part and parcel of prudent risk empowerment, by the government. That is, a proactive approach to risk management when setting up a Personal Budget is just as important as a good safeguarding system for when things could go wrong, later on.
- On top of that, there’s regulation by the Care Quality Commission, and the Criminal Record Bureau checks for those working within agencies, and a barring scheme with an independent board. However, the coalition government has cancelled the ISA registration scheme, making safeguarding a more concerning issue, potentially, than first planned for, in personalisation policy.
- A final piece of the jigsaw is a new complaint system brought in, in October 2010. The Local Government Ombudsman services will now make findings in disputes between providers and private purchasers, including those using public money in the shape of Direct Payments (not managed personal budgets, please note)
An early case on just how far the State can go, in terms of believing its duty is to help people look after themselves, is Re Z – in which it became clear that the duties of the local authority for any vulnerable adult turn on capacity…their capacity –
The duties could be described thus:
- to investigate to ascertain their genuine wishes
- to make an assessment of their legal capacity
- to identify that the adult has relevant information and is aware of all options
- to ensure there is no adverse influence on the adult
- to bring the question of capacity before the court if necessary
- to give advice and assistance in allowing the adult to determine their own best interests
- to allow the adult, if capacitated, to make a decision, and allow them to give effect to that decision
- to bring to the attention of the police any suspected criminal behaviour by the person or anyone else
- And then – to stop right there!!
Can safeguarding sit comfortably alongside personalisation?
Some people say that since we trust people to spend their benefits money, without having to monitor what they spend it on, why don’t we just do the same with the budgets we’re going to see being given to people, for their care and support?
That approach works reasonably well for buying goods, and consumables, but not for services, in my view. Even where capacitated people are making choices about the provider they prefer, and the flexibility that they want to pay for, it’s still easily possible for that person to be fooled by a daft or dodgy, exploitative or badly-intentioned person who’s working closely with them in an ongoing and closely involved way. In the government’s own words:
“Some choices might involve taking risks and while this can be a positive thing, it can also pose questions over people’s safety, the safety of others and who is ultimately responsible if something goes wrong.”
Secondly, the money is being given out in the context of an ongoing duty of care management by councils, which necessitates regular review and reconsideration about whether the money is meeting the user’s assessed eligible needs. That’s very different from benefits law.
What risks are there, then, in use of a personal budget?
…From the client’s perspective, first!
- When you employ a person directly, you are obliged to comply with tax and national insurance rules.
- You are governed by employment law, however personal and close your relationship is with your employee. It’s really hard to avoid being counted as an employer, if you are giving any sums of money or things with a monetary value, to another person, on a regular basis, linked to what they’ve done for you.
- You owe anyone in your home a duty of care, and must have Employers’ Liability cover, and public liability cover, in case of a breach of that duty of care.
- The Health & Safety at Work Act probably does not apply to your employees in your own home, but lots of the law about the minimum wage, and the Working Time Directive, needs to be understood.
What about from the authority’s perspective?
- Service users’ direct payments may be mis-spent, leaving un-meetable eligible need to deal with, and requiring investigation of who’s to blame, and decisions about recovering the money.
- Service users may get into difficulties with employees – legal difficulties, and negligence difficulties – which may come home to roost – “You never told us that we had to do…x … or that we couldn’t …..say …z…”
- Service users may get exploited more easily, by dodgy workers or even by regulated or wrongly unregistered agencies, without the involvement of the council as a middle man.
What about from the worker’s perspective?
- The client may well have been funded for a double handling arrangement, or for Handling training, based on the council’s risk assessment, but is hoping to save the money for a holiday, and not keen on using the hoist that’s been loaned, either.
- This may lead to the injury of the worker, or injury to the client, who may then look to the worker (who will not be insured) for compensation.
- The client may have a poor grasp of employment law, and be relying on the sympathy vote from authorities because of their disability or condition, rather than putting money aside for contingencies that are statutory rights, and won’t necessarily have other moneys from which to pay compensation for legal wrongs to the worker.
Essential safeguarding tools for an era of personalisation:
- Councils don’t have to give an actual direct payment to everyone who asks for one – councils do have a discretion – turning upon whether they think that the direct payment arrangement can meet need, allowing for the help that is available for the person in question.
- Councils can’t give direct payments to people who can’t consent – the only option is to appoint a Suitable Person, of the Council’s choosing, unless a Deputy or Attorney already exists.
- Councils can ask people to provide any information they think relevant before deciding to grant a Direct Payment – ‘Who are you thinking of purchasing services from?’ – for instance, in case something is known that would worry any sensible person.
- Councils have the power to impose a specific condition that the direct payment not be spent on a named person’s services.
- Councils can terminate a direct payment if they are worried about the use to which it appears to be being put – or not put.
Risk – from the Department of Health’s perspective, in the Putting People First guidance:
- Support planning involves allowing people to make their own informed decisions – including decisions about risk. Councils have a responsibility to ensure that, wherever possible, the choices made by people who use services and their carers are respected and supported.
The benefits of increased autonomy and social inclusion may have to be weighed against risks associated with particular choices. It is very important that discussions around such choices are accurately recorded in writing, to ensure that the council, the individual and any carer(s) are clear about any potential consequences and how the risk can be managed. The Department has issued guidance on decision making, taking account of capacity issues: Independence, Choice and Risk.
More from the DH, on risk…
“Para 133. Giving people more choice and control inevitably raises questions about risk, both for individuals exercising choice over their care and support, and for public sector organisations who may have concerns about financial, legal or reputational risk.
Therefore, at the heart of every council’s plan for transformation, there needs to be a comprehensive and proactive approach to risk. Councils should take steps to ensure that an effective risk management strategy is embedded at every level of their organisation, from the development of high-level policy and strategy, through commissioning and care management processes, to support planning with individuals, and service delivery on the frontline.
Moving towards risk empowerment…
“134. Such a strategy should engage all relevant parts of the council, NHS colleagues, local providers and service users and carers, in order to bring about collaborative change and to build support for a cultural shift away from risk-aversion towards genuine user control and supported decision- making. This will require agreement from all relevant parties about what proportionate safeguarding measures should be put in place for each individual requiring support.
Good practice in media management is vital to the reputation of the organisation and its corporate approach to managing risk.”
The government’s bottom line:
“Ultimately, the local authority has a statutory duty of care and a responsibility not to agree to support a care plan if there are serious concerns that it will not meet an individual’s needs, or if it places any individual in a dangerous situation. Uncertainty about rights and responsibilities in relation to the law can inhibit good approaches to supporting choice and managing risks.
An individual who has the mental capacity to make a decision, and chooses voluntarily to live with a level of risk [in his own private life], is entitled to do so. The law will treat that person as having consented to the risk and so there will be no breach of the duty of care by professionals or public authorities. However, the local authority remains accountable for the proper use of its public funds, and whilst the individual is entitled to live with a degree of risk, the local authority is not obliged to fund it.”
The new registration laws for the regulation of care providers
There is a new-ish law about regulating health and adult social care in England. From 1 October 2010, every health and adult social care service in England is legally responsible for making sure it meets new essential standards of quality and safety.
The essential standards for the public – for providers to comply with, as described by the Care Quality Commission:
- You can expect to be involved and told what’shappening at every stage of your care
- You can expect care, treatment and support that meets your needs
- You can expect to be safe
- You can expect to be cared for by qualified staff
- You can expect your care provider to constantly check the quality of its services
The most recent scandal – Winterbourne View
Care services minister Paul Burstow ordered a “thorough examination” of the role of the Care Quality Commission (CQC) – the social care services regulator – and local authorities in the case.
NB, since this was a hospital, what about the PCTs who were commissioning the care? Did they think that paying for it was all that there was to the job of commissioning it?
The company confirmed a former nurse had made a complaint about the quality of care to hospital managers last October. But neither the chief executive nor board members were made aware of it due to “delays”. The CQC apologised for also failing to respond to a complaint made by the same person in December. CQC was contacted by the whistleblower on December 6 but said it believed these concerns were already being examined by the local authority. “However, we recognise that, had we contacted the whistleblower ourselves directly after we received the email, we would have been alerted to the seriousness of the situation and moved swiftly to inspect the hospital,” it said.
The basics of the new system of regulation
The new regulations are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and the Care Quality Commission (Registration) Regulations 2009. These actually replace:
– The old National Minimum Standards;
– Standards for Better Health.
- There’s a wider range of enforcement powers that includes on-the-spot fines, warning notices and suspension of registration, as well as prosecution and closure.
- The new registration system will bring the NHS, private healthcare and adult social care providers under the same inspection regime and standards for the first time.
- From April 2011, CQC were registering dentists and private ambulances and from 2012, GPs will need to register.
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There is a good deal more information on this system in the Regulation Topic in this Database.
The background to the ISA listing scheme
On 12 October 2009, the key barring provisions in Schedule 3 of the 2006 Act and Schedule 1 of the 2007 Order came into force. Key changes introduced, then, included:
- The replacement of the previous PoVA/Care Standards barred lists with two new lists – the ISA Children’s barred list and the ISA Vulnerable Adults barred list;
- The concept of regulated activity, which widened the scope of sectors covered by the barred lists to include prisons and most general health care settings;
- A new single ISA Referral Form and new ISA Referral Guidance came into operation – the link is as set out above.
- The introduction of duty to refer to the IBB, people through to pose a risk, on the part of LAs, the CQC, professional register keepers etc.
When do I refer to ISA?
A referral should be made to the ISA when the regulated activity provider has gathered sufficient evidence as part of their investigations to support their reasons for withdrawing permission to engage in regulated activity, and in following good practice, consulted with their Local Authority Designated Officer (LADO) or Health and Social Care Trust Designated Officer, if appropriate.
Referral at this point will help to ensure that the ISA has sufficient evidence to commence its decision-making process while providing adequate safeguarding for vulnerable groups.
Suspension Without Prejudice
It is important to note that withdrawing permission to engage in regulated activity does not include suspension without prejudice as this would be a neutral act and there would be no evidence at this point to support the thought that a person has engaged in relevant conduct, or that the harm test is satisfied.
For example: Mr. A, whom you employ in regulated activity, is referred to you following an allegation that he hit a vulnerable adult that he was employed to care for. As a responsible employer you take immediate action to safeguard the adult in your care by suspending Mr. A. However, the suspension is on the basis of an allegation and therefore a neutral act without prejudice.
The wording of the referral duty is that it’s triggered if you withdraw permission to engage in regulated activity because you think the person has engaged in relevant conduct or the harm test is satisfied. Therefore withdrawal of permission becomes relevant only after any investigation you undertake provides evidence to make you think the allegation has foundation.
NB An allegation is evidence, untested evidence, but evidence nevertheless. This guidance was the only practical way of dealing with concerns under the original system that suspension led to unfair damage to people’s employment histories.
The process from start to finish
A regulated activity provider removes an individual from regulated activity due to relevant conduct, risk of harm or receiving a caution or conviction for relevant offence (or the person has resigned or left that post in circumstances where they may otherwise have been removed).
The regulated provider follows their agreed local safeguarding and disciplinary procedures (this is separate from the duty to refer to the ISA). This may also involve consulting with a relevant governing body or professional association.
- The regulated activity provider consults their Local Authority Designated Officer (LADO) or Health and Social Care Trust Designated Officer if appropriate.
- The regulated activity provider undertakes an initial investigation to establish facts and gather evidence such as witness statements.
- Following initial investigation or evidence gathering the regulated activity provider thinks that there may have been relevant conduct or there is a risk of harm, and they take a decision to withdraw permission for the individual to engage in regulated activity,
- The regulated activity provider makes a referral to the ISA using the ISA Referral Form after consulting the ISA Referral Guidance. The completed and signed ISA Referral Form and supporting evidence and documents are posted to the ISA (see section 5: Contacting the ISA).
- The regulated activity provider will also refer this information by post to the relevant regulatory body e.g. General Social Care Council, General Teaching Council, Nursing and Midwifery Council, Northern Ireland Social Care Council etc.
- The ISA will acknowledge the referral by return post within three working days of receipt.
- The ISA will commence the decision process. Details of the process can be found on the ISA website www.isa–gov.org.uk. The ISA will review the referral information and evidence provided and where necessary request information from other sources such as the Police, the relevant local authority or the relevant Health and Social Care Trust. The ISA may also request additional information of documents from the regulated activity provider if not provided with the original referral.
- Following ISA consideration, if the ISA is ‘minded to bar’ an individual, it will write to that individual seeking representation as to why they should not be barred from working or volunteering with vulnerable adults. The ISA will provide to that individual all the evidence that the ISA has relied on in making its ‘minded to bar ’ decision. The individual will have eight weeks to make representations in writing to the ISA. Current employers and other bodies or individuals with a registered legitimate interest in the individual will be notified in writing that the ISA is ‘minded to bar ’ that individual.
What then happens?
Following representations, if an individual is subsequently barred, they will be notified in writing.
If the individual is not barred, they and legitimately interested parties will be advised in writing. The ISA does not have to inform any other individuals or organisations of the decision, including an employer who may have dismissed the individual (as they no longer have a legitimate interest in the individual). [This is why you have to be careful about just passing on any old information from your past files, willy nilly (as opposed to being asked for it specifically) – it may have come to nothing, in which case you are having a negative impact on this person’s future.]
If a referred individual is barred on the ISA children’s list, ISA vulnerable adults list or both lists they will not be permitted to work in regulated activity with these groups. The 2006 Act and 2007 Order sets out legal sanctions in relation to barred persons engaging in regulated activity. These sanctions relate both to the barred person and to an individual knowingly allowing a barred person to engage in regulated activity.
An individual included on either, or both, of the barred lists (other than those listed as a result of an automatic inclusion without the right to make representations) will have the right of appeal to the Administrative Appeals Chamber of the Upper Tribunal or, where appropriate, the Care Tribunal in Northern Ireland against a decision made by the ISA to include them on a list or not to remove them from a list. An appeal can only be made with the permission of the Tribunal on the grounds that the ISA has made an error on a point of law or finding of fact in relation to information on used to form a decision.
Looking at the responsibility of referring people to the ISA for a decision on barring
The range of organisations who are able to make referrals include:
- Regulated activity providers (remember, direct payment clients and people buying care privately for themselves, friends or family members as defined, do not count as RAPs);
- Personnel suppliers;
- Local authorities;
- Education and Library Boards in Northern Ireland;
- Health and Social Care (HSC) bodies;
- Keepers of Registers named in the legislation; and
- Supervisory Authorities named in the legislation.
Who has a duty to refer people to ISA?
Certain types of employers (not direct payment and self-funding clients)
The amendments being brought in by PoFA will change the current and similar duty on local authorities (whether as employers, or in their role as Safeguarding Adults Teams), professional regulators like CQC, and register keepers, into a mere power to pass on any information about individuals working with children or vulnerable adults in regulated activities, where they consider them to have caused harm or pose a risk of harm to such an adult.
The LA’s duty is being watered down by PoFA into a mere power
s76 (2) In section 39 of the Safeguarding Vulnerable Groups Act 2006 (duty of local authorities to refer) –
(a) in subsection (1) –
(i) for “must” substitute “may”, and
(ii) Omit “prescribed” [so it simply reads ‘information’],
(b) in subsection (4) –
(i) in paragraph (a), for “engaged or may engage” substitute “or has been, or might in future be, engaged”,
(iii) In paragraph (b) for “2,7 or 8” substitute “or 7”
(c) in subsection (5) omit “prescribed”, and
(d) in the heading for “duty”, substitute “power”
The ISA’s legal responsibilities
- To maintain a list of individuals barred from engaging in regulated activity with children;
- To maintain a list of individuals barred from engaging in regulated activity with vulnerable adults;
- To maintain both barred lists; and
- To reach decisions as to whether to remove and individual from a barred list.
The role of the ISA
- The role for the ISA, within the Barring Service, is to make independent barring decisions and place on, or remove individuals from the ISA’s Vulnerable Adult’s Barred List.
- The ISA will assess anyone working in regulated activity that is referred to it by a RAP or other legitimate referrer on the grounds that they pose a possible risk of harm to vulnerable groups.
- If the person is working in regulated activity, but not for a regulated activity provider, the employer cannotrefer them, but one of the other organisations can.
- If the person is doing the activity unpaid, in connection with a friend or a family member, nothing they do is regulated. But if they are paidto do the work for a friend, then they are at least able to be referred, although not by the employer, as working within regulated activity.
- So that would mean that direct payment employers, using public money to employ people whom they do not know, do not have ultimate choice or control over whether the person is referred – a council referrer can refer just based on a perception that the individual has posed a risk of harm.
- Even if the employer refuses to suspend the worker or investigate – and even if the worker cannot be said to have been removed from engaging in regulated activity, the council can still refer.
When should a mandatory referral be made?
A referral should be made to the ISA whenever a regulated activity provider such as an employer (NB the definition of a RAP does not cover a direct payments employer or a privately employing or purchasing client) or volunteer coordinator
- removes a person from regulated activity, or that person resigns, retires, is made redundant or is transferred to a position which is not regulated –
- whenever the regulated activity provider ‘thinks’ that a person has done one or more of the following
– engaged in relevant conduct; and/or
– satisfied the Harm Test – this is met when a relevant person (an employer) believes that an individual may harm, may cause to be harmed, put at risk of harm or may attempt to harm or may incite another person to harm a vulnerable adult or a child and /or
– received a caution or conviction for relevant offence.
- If the above criteria have been met, the information must be referred to the ISA.
This is regardless of whether the action of offence was in connection with their work.
- The referral should only be made, however, to the ISA, when the employer or other referrer has gathered sufficient evidence as part of their own investigations.
The option to refer, for employers/organisations who are not bound to refer, currently
The ISA will consider all information referred to it from any source in relation to whether an individual working in regulated activity should be included in a barred list. For example:
- Regulated activity providers and other groups may provide information where following an internal investigation there is insufficient evidence to show relevant conduct actually occurred, but they still have concerns about the individual;
- OR where an employer may have concerns about an individual who has left their employ and they know or think that the individual works in regulated or controlled activity in anothersetting.
- The ISA site warns potential referrers, though, that whatever their status, it is important to ensure that the referrer is satisfied any referral they make, where the legal duty to refer has not been triggered, complies with all relevant legal requirements e.g. The Data Protection Act and employment laws, because sharing of information of this nature can have a severe impact on the reputation and livelihood of the worker, if it is inaccurate.
- The defence to legal proceedings for libel or slander of qualified privilege, or that of acting to discharge statutory functions in relation to data protection, for public bodies), will not necessarily cover any disclosures made to the ISA, in this non-mandatory referral sort of situation.
- This is why it is so worrying that the duty is being turned into a power only – concerns about protection from liability will stymie reporting, it is to be expected.
Other situations where there is only an option to refer, but no absolute duty?
‘Ordinary’ employers (like direct payment clients and clients buying care privately for friends and family members – and anyone being helped with care or support by a friend or a family member (as defined, please note) (and in the case of the friend, voluntarily, and without going through an organisation) CAN make referrals to ISA, (as can ordinary members of the public, if they have concerns) but the ISA makes it very clear that it does not have any investigatory power of its own.
The implication is that in so doing, legal risk will be incurred, so that care should be taken. On the other hand, if ISA can’t investigate those issues, it can’t come to a view, or list anyone, so there is little risk of any impact on someone – so this is confusing.
What would happen, then?
The solution to this potential gap in protection, if the person concerned wants to take a concern with their own employee, further up formal channels, (either for the support that may be available for themselves, or for the good of others who may come in to contact with the person), is for the person who has the concerns to refer the problem to the police and/or the relevant local authority’s Adults Safeguarding Team.
After the employer/service recipient makes a referral, the police and/or local authority will conduct an investigation in the vast majority of cases if there seems to be any evidence of a crime or a safeguarding concern.
Following an assessment of the evidence, if there is satisfaction under the trigger criteria, the information may then be sent as a referral to the ISA for consideration, under the current duty to refer discussed above. The referral will not be made by the employer, but by the public body, in the context of public protection.
What might then happen?
Whether or not the police take steps in relation to the criminal law, the Local Authority MUST refer the situation to the ISA, in the case of a direct payment or privately-funding employer/service recipient thought to be at risk of harm, because the worker will still count as engaged in regulated activity.
The only current exception to the authority’s eventual statutory duty to refer would be if the vulnerable adult’s service provider was a friend or family member (as defined by s58, please note, and unpaid in the case of a mere friend), or an unpaid friend of one of the service user’s family members, because all such work is exempted from any regulation in the legislation, and the conduct would not thereby have amounted to regulated activity.
In any such case the Local Authority MAY refer the matter to the ISA, as if it were a concerned member of the public, but would be worried about its legal protection in the context of data protection and information sharing, so probably would not. The new PoFA amendment will make it acceptable and thus safer legally so to do, because the discretion is to be informed by whether the council thinks that the person may work in the future in regulated activities, and anyone making this sort of referral will at least be able to say that they were operating under a statutory discretion in the public interest.
Section 39 SVGA 2006 Local authorities: the duty to refer
(1) A local authority must provide the ISA with any prescribed information they hold relating to a person if the first and second conditions are satisfied.
(2) The first condition is that the local authority thinks –
(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to the person, [or]
(b) that the person has engaged in relevant conduct (within the meaning of paragraph 4 to 10 of Schedule 3) occurring after the commencement of this section, or
(c) that the harm test is satisfied.
(4) The second condition [ie a necessary condition before the Local Authority’s duty is triggered] is that the local authority thinks –
(a) that the person is engaged or may engage in regulated activity and
(b) (except in case where paragraph 1. 2. 7or 8 of Schedule 3 applies) that the ISA may consider it appropriate for the person to be included in a barred list.
The harm test
(3) The harm test is that the person may –
(a) harm a child or vulnerable adult,
(b) cause a child or vulnerable adult to be harmed, (c) put a child or vulnerable adult at risk of harm, (d) attempt to harm a child or vulnerable adult, or (e) incite another to harm a child or vulnerable adult.
Para 10 – relevant conduct
For the purposes of paragraph 9 relevant conduct is –
(a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;
(b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;
(c) conduct involving sexual material relating to children (including possession of such material);
(d) conduct involving sexual explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate;
(e) Conduct of a sexual nature involving a vulnerable adult, if it appears to ISA that the conduct is inappropriate.
(2) A person’s conduct endangers a vulnerable adult if he –
(a) harms a vulnerable adult.
(b) causes a vulnerable adult to be harmed.
(c) puts a vulnerable adult at risk of harm,
(d) attempts to harm vulnerable adult, or
(e) incites another to harm a vulnerable adult.
(6) For the purposes of sub-paragraph (1)(d) and (e), ISA must have regard to guidance issues by the Secretary of State as to conduct which is inappropriate.
But it is also necessary for the duty to be triggered that the authority asks itself the second question:
(4) The second condition is that the local authority thinks –
(a) That the person is engaged or may engage in regulated activity
- This means that the duty to refer can be triggered even if the person for whom the person in question is working is not a regulated activityprovider, which is useful in public protection terms.
- It means that the fact that direct payment arrangements are private arrangements does not signify that there can never be any reporting.
- However, the work will not beregulated activity, at all, under s58, if it is done within a family or friendship based relationship (NB, in the latter situation, where it is done for no commercial consideration i.e. payment).
- And NB, the definition of regulated activity has now got arguably narrower.
The new definition, as proposed in the Protection of Freedoms Bill
(1) Each of the following is a regulated activity relating to vulnerable adults—
(a) the provision to an adult of health care by, or under the direction or supervision of, a health care professional, [this would cover family members doing stuff under the direction of the district nurse, were it not for the friends and family exception]
(b) the provision to an adult of relevant personal care, [this is what most people’s families will be providing, by way of arrangements that they make – but they are excepted too…]
(c) the provision by a social care worker of relevant social work to an adult who is a client or potential client,
(d) the provision of assistance in relation to general household matters to an adult who is in need of it by reason of age, illness or disability, [for example with paying bills, shopping or budgeting and where there are no formal arrangements in place such as an enduring or lasting power of attorney;] [note that neighbours helping out would presumably be excepted under the friends rule]
(e) any relevant assistance in the conduct of an adult’s own affairs,
(f) the conveying by persons of a prescribed description in such circumstances as may be prescribed of adults who need to be conveyed by reason of age, illness or disability,
(g) such activities— (i) involving, or connected with, the provision of health care or relevant personal care to adults, and (ii) not falling within any of the above paragraphs, as are of a prescribed description.
So – if you are already barred, you can’t work in an activity above (unless it’s for your family member or a friend who’s not paying you).
More on the meaning of these regulated activities – if barred, you can’t work in ANY SETTING that involves the following:
(3B) Relevant personal care means—
(a) physical assistance, given to a person who is in need of it by reason of age, illness or disability, in connection with—
(i) eating or drinking (including the administration of parenteral nutrition),
(ii) toileting (including in relation to the process of menstruation),
(iii) washing or bathing,
(v) oral care, or
(vi) the care of skin, hair or nails (other than nail care provided by a chiropodist or podiatrist),
(b) the prompting, together with supervision, of a person who is in need of it by reason of age, illness or disability in relation to the performance of any of the activities listed in paragraph (a) where the person is unable to make a decision in relation to performing such an activity without such prompting and supervision, or
(c) any form of training, instruction, advice or guidance which—
(i) relates to the performance of any of the activities listed in paragraph (a),
(ii) is given to a person who is in need of it by reason of age, illness or disability, and
(iii) does not fall within paragraph (b).
Please note, these definitions are not limited to the place where a person is living, so it would include day care and other unregistered settings, which would be good.
More important definitions for what will count as regulated activities for the rule that a barred person cannot work in, or be employed on:
(3D) Assistance in relation to general household matters is day to day assistance in relation to the running of the household of the person concerned where the assistance is the carrying out of one or more of the following activities on behalf of that person—
(a) managing the person’s cash,
(b) paying the person’s bills,
(3E) Relevant assistance in the conduct of a person’s own affairs is anything done on behalf of the person by virtue of—
(a) a lasting power of attorney created in respect of the person in accordance with section 9 of the Mental Capacity Act 2005,
(b) an enduring power of attorney (within the meaning of Schedule 4 to that Act) in respect of the person which is—
(i) registered in accordance with that Schedule, or
(ii) the subject of an application to be so registered,
(c) an order made under section 16 of that Act by the Court of Protection in relation to the making of decisions on the person’s behalf, (deputyship)
(d) the appointment of an independent mental health advocate or (as the case may be) an independent mental capacity advocate in respect of the person in pursuance of arrangements under section 130A of the Mental Health Act 1983 or section 35 of the Mental Capacity Act 2005, (IMHAs and IMCAs)
(e) the provision of independent advocacy services (within the meaning of section 248 of the National Health Service Act 2006 or section 187 of the National Health Service (Wales) Act 2006) in respect of the person, or (f) the appointment of a representative to receive payments on behalf of the person in pursuance of regulations made under the Social Security Administration Act 1992 (appointees).
Not, please note, a Suitable Person running a direct payment!!
The test for barring
The old Care Standards/POVA system differentiated between
– Those who were automatically barred and who could not come off the list
– Those who were barred but who could make representations to come off the list
– And those who were considered for barring but who could make representations first
Those with rights to come off, could appeal to the Upper Tribunal, against decisions not to remove them. Such people also had right to appeal to the Upper Tribunal against decisions to list under para 9 or 11 of the schedule in the first place. But one had to obtain permission to appeal first, because the nature of the right to appeal was tightly circumscribed by the description of the grounds of appeal that could even be valid so as to trigger an appeal:
“(2) an appeal under subsection (1) may be made only on the ground that ISA has made a mistake –
- a) on any point of law;
- b) in any finding of fact which it has made, and on which the decision mentioned as based.
(3) for the purposes of ss2, the decision whether or not it is appropriate for an individual to be included in a barred list, is not a question of law or fact.
The case law from 2010 on the fairness of this approach
“The decision making process, inevitably, takes some weeks. If the person who has been placed on the barred list does not make his initial representations until some weeks after notification, the process stretches into months. During the whole of the period during which the process is ongoing, the person concerned remains upon the barred list.”
The leading case under the old Scheme: Wright
In May 2009 X voluntarily attended his local police station and accepted a caution for child cruelty, although it was his wife who had left the children alone. Why he did so is obscure; there is no suggestion that he knew that his wife intended to leave the children alone or that he expected that she would do so.
In the investigation that ensued, it was concluded that the children were well cared for, thriving at school and that there was no cause for concern for their welfare. The episode had been an isolated incident. X’s employers concluded that he posed no risk of harm to any patients and that he should continue in his employment.
The ISA was informed of the caution accepted in September. He was placed on the barred list in March 2010 and there is no explanation of this ostensibly unwarranted delay. He sent in representations in May 2010 and was removed from the list in July 2010 and he resumed normal work. During the bar, he was prevented from undertaking nursing duties, but was transferred to office duties. That meant he suffered a loss of wages amounting to about £5K.
A judge’s approach to the scheme – the earlier Wright (2009) case about the Care Standards Scheme
- …the scheme appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal. That premise is, in my view correct. The issue is what should be done on the way to hat decision. How is a proper balance to be struck between the need to protect the vulnerable adult, who may be at risk…. And the need to protect he worker from suffering irreversible damage to her civil rights, as a result of allegations which later turn out to be unfounded even frivolous or malicious or at the very least blown up out of all proportion?
- The scheme as enacted in the Care Standards Act 2000 did not comply with article 6(1). The process did not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment … I would not make any attempt to suggest ways in which the scheme could be made compatible with human rights…The incompatibility arise from the inter-reaction between the three elements of the scheme: procedure, the criterion and the consequences…
So what about the current SVGA scheme?
“I readily accept that the decision in Wright that the scheme under consideration in that case was unlawful… cannot bind me in this case about the SVGA. Further, while the scheme under the 2000 Act is similar to this scheme there are differences: …under the scheme in Wright a person could be placed on the barred list without having an opportunity to make representations about it on the basis of allegations which had not been proved either to the criminal or civil standard. Under the scheme here a person is placed upon the barred list automatically only if he has been convicted of or has admitted a specified criminal offence.
Despite that, aspects of the reasoning which led the Wright court to conclude that the absence of a right to make representations prior to listing, under the 2000 Act was contrary to article 6, are obviously relevant when considering whether the absence of such a right here renders the scheme equally in breach. The consequences of being barred are as real for the persons placed on the barred list under the 2006 Act as they were for persons provisionally listed under the earlier scheme.”
Automatic barring, still disproportionate:
“The core submission, namely, that the automatic barring provision is a proportionate holding measure, cannot be justified.
The ISA gives priority to those cases where the person referred is to be placed upon a barred list in consequence of having received a caution. Priority is given to persons who are not in prison and who are known to work in regulated activity.
Priority must have been given to the cases of the claimants here, yet the caution was known of in September 09 but the person was not placed on the list until March 2010. The shortest delay between notification and listing was 2 months and in 2 cases the delay was just under 5 months and 5.5 months….”
So what is the outcome? The RCN case, 2010
“I cannot conclude that the automatic inclusion of all persons convicted or cautioned of specific offences can be justified simply to cater for what must be a very small number of truly urgent cases. I can see no reason why the ISA cannot act with speed so as to determine whether or not a person’s name should be included on one or both of the barred lists.
The denial of the right to make representations in advance of listing is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely, the right to be heard.
In my judgment, and notwithstanding the fact that the person concerned has been convicted or cautioned of a specified offence, the denial of the right to make representations in advance of listing is a denial of a fundamental right.
It is the often irreversible detrimental effect of the inclusion on the list that makes the breach of article 6 at the first stage of the process incurable by any of the measures later in the process which are designed to afford a sufficiency of procedural protection to the person concerned.”
This actually means that the SVGA legislation is a breach of human rights, but is still in force, because of the structure of the Human Rights Act, which leaves crystal clear wording in place, until it is changed by the government, which involves new legislation.
That is what is now being considered by Parliament in the PoF Bill – clause 66
Clause 66: alteration of test for barring decisions – from the explanatory notes
- It excludes from automatic barring persons who have not worked and have no intention of working in regulated activity. It requires the ISA to place on the barred lists those persons who have committed such offences and who are have been or might in the future be engaged in regulated activity.
- Automatic bars with representations are based on criminal convictions or cautions which, whilst not providing such a clear indication of risk as the criteria falling under the provisions for automatic bars without representations, are still serious and raise the presumption of a risk of harm to vulnerable adults.
The new paragraph amends the arrangements for referral of these to the ISA by the Sec of State, and requires the ISA to seek representations from an individual prior to reaching a decision on whether to bar them.
If no reps are received, within the time prescribed, ISA must place the person on the barred list. If reps are received, then ISA must consider whether it is appropriate to bar the person. As with automatic bars it also limits the application of such bars to those who are engaged, have been engaged or might be engaged in regulated activity. However there are still no provisions for representations for those individuals convicted of auto-bar offences.