It would be difficult to produce this issue for Healthline without acknowledging the recent media expose of abuse in a residential facility caring for very vulnerable individuals with learning disability. To say it is shocking is a gross understatement.
It does perhaps however highlight the fact that currently there is no direct statutory framework for protecting vulnerable adults akin to that which exists for safeguarding children, which has a very clear defined statutory framework.
Health Ministers have historically shied away from this for safeguarding adults, although in fairness there were moves toward a legislative framework in recent years. However this progress was halted by the Coalition, in favour of localised intervention, with helpful templates from the Department of Health.
The Department of Health refers to the Human Rights Act 1998 as one of the underpinning and relevant Acts. There is also, of course, legislation around those who lack mental capacity, in the form of the Mental Capacity Act 2005. Yet not all vulnerable adults do lack capacity. Some assessments can be borderline, or capacity fluctuating. When assessing capacity, it is also important to consider that while on the face of it an individual may appear to have mental capacity; there may be other controlling factors impacting upon the individual, such as duress or undue influence which may be relevant. In those cases there needs to be a sophisticated consideration as to whether that individual can effectively exercise free will.
While care within residential settings features greatly at present, abuse of vulnerable adults can occur in any setting, including care provided at home. As with child abuse, abuse of any vulnerable adult can be subtle and executed in such a way so as not to leave physical evidence of harm. It is also impossible to totally eradicate risk, and arguably difficult to legislate for those who are placed in a position of trust, but who deliberately abuse with no regard for dignity, safety or respect for those in their care. Perhaps what the recent revelations do show is a workforce that may not be effectively skilled, regulated, checked or managed; and yet who may be in a position of looking after adults who are incredibly vulnerable and who require highly skilled care to manage challenging behaviours and ensure a good quality of life.
In terms of guidance, the Department of Health's “No Secrets” remains a valid document which sets out the range of categories of abuse and some mapping of safeguarding procedures. However, the most recent guidance, “Safeguarding Adults -The Role of Health Service Practitioners” (Gateway reference 15738), issued in March 2011, is an important updating document that all health professionals should read.
Without a specifically designed legislative framework for safeguarding vulnerable adults, understanding such guidance as well as leadership from safeguarding leads across the health and social care spectrum is key to both ensure, and reassure that vulnerable adults are afforded the highest standard of care they need and should be able to expect whatever the care setting.
One of the issues raised by our clients, particularly those providing acute inpatient care, is about safeguarding thresholds - i.e. when does poor clinical practice turn to abuse or what is the difference?
There is no explicit legal answer to this, and in fact, clinical thinking around this is evolving. Nevertheless, a common sense approach, an awareness of the categories of abuse as found in “No Secrets”, an understanding of the safeguarding process, and how to access advice and expertise is crucial to an organisation’s ability to meet its duties of care in this area. Some patients are vulnerable as a result of underlying factors such as a disability, but others become vulnerable due to more immediate factors, such as falls, pressure sores or end of life considerations.
Another issue often raised, is the interface between the health and social care regulators and commissioners. Who is ultimately legally responsible to monitor the care being provided to those for whom care is commissioned? Is this a primary responsibility purely for the regulator or for the commissioners? The answer is that while the Care Quality Commission (“CQC”) is the main formal regulator, commissioners act as a quasi regulator in the sense that they must work with the CQC and other regulators; to ensure that the care being provided meets requisite standards, and that commissioners proactively “police” their contracts. Commissioners need to be able to detect and act upon declining standards quickly. Further, Commissioners must act upon vulnerable adult safeguarding alerts and referrals in collaboration and partnership working not only with the CQC, but also their partners, such as the local authority and the police and GPs. Solutions for safeguarding are best achieved by having the correct people around the table to make sound decisions around specific cases or plan a proportionate response to manage a failing provider.
A proportion of safeguarding concerns do arise from those who are whistleblowers. Those stepping forward to raise issues of safeguarding are entitled to protection and to be heard by the regulator and employers. Our experience is that this is not always happening, sometimes because there is poor management of the whistleblower or a lack of understanding that there is legal protection to the whistleblower and a process to be followed.
Having had many years of experience in advising health and social care clients around the legalities of safeguarding adults, the medical law team at Bevan Brittan seeks to promote a greater awareness of why abuse occurs toward vulnerable adults, and an increased understanding of how organisations and professionals can be more proactive in preventing abuse or managing this effectively when it does occur.
We can also support in other and more targeted ways by:
- Working alongside your safeguarding leads to help you self assess your assurance frameworks for safeguarding adults. We can share experience and helpful system templates.
- Delivering Board development in this area to raise awareness of accountability.
- Providing workforce development and training around the current safeguarding framework, thresholds and benchmarks looking at best practice and case studies.
- Providing workforce development and training to staff to enable them to best understand the interface between safeguarding adults and the law for patients who lack mental capacity, including the Mental Capacity Act, Deprivation of Liberty issues, and the concept of “best interest” as well as other potentially relevant legislative issues such as the Mental Health Act.
- Policy reviews and revisions to ensure these are up to date, compliant with regulatory expectations and the law, eg. whistle blowing policy, restraint and de-escalation protocols.