Progressing a Concern to a Section 42 Enquiry

A safeguarding concern can be raised with the local authority when the referring worker/ organisation believes that criteria a and b of S42 (1) Care Act (2014) are met:

1. The adult has needs for Care and Support (whether these have been assessed or are being met by the local authority or not);
2. They are experiencing, or at risk of experiencing abuse or neglect.

This means that only reasonable cause to suspect that S42(1) (a) and (b) apply is needed in deciding whether to refer a safeguarding concern to the local authority.

The local authority will take all such referrals seriously and consider S42 (1a and b) alongside the third criteria under S42(1c) of the Care Act (2014) with the referrer and in gathering further information:

3. As a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

When a safeguarding concern is raised with the local authority, the information provided is used to establish if the concern meets the criteria of S42 of the Care Act  There may be considerable complexity and time involved in deciding whether there is reasonable cause to suspect that, as a result of care and support needs the adult is unable to protect himself or herself against the abuse or neglect or the risk of it.

Where there is reasonable cause to suspect that all three criteria are met, a Section 42 enquiry must be triggered and the local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken and, if so, what and by whom.

1. The adult has needs for Care and Support

Safeguarding duties apply regardless of whether a person's care and support needs are being met, whether by the local authority or anyone else. They also apply to people who pay for their own care and support services.

An adult with care and support needs may be:

• An older person;
• Someone with mental health needs, including dementia or a personality disorder;
• A person with a long-term health condition;
• Someone who misuses substances or alcohol to the extent that it affects their ability to manage day-to-day living.

Consideration of this need for care and support must be person-centred (for example, not all older people will be in need of care and support but those who are 'frail due to ill health, physical disability or cognitive impairment' may be). The above is not an exhaustive list and it must be considered alongside the impact of needs on the adult's individual wellbeing.

There are 10 areas of potential need (outcomes) set out in the Care Act;

• Manage and maintain nutrition;
• Maintain personal hygiene;
• Manage toilet needs;
• Being appropriately clothed;
• Be able to make use of their home safely;
• Maintain a habitable home environment;
• Develop/maintain family and other personal relationships;
• Access/engage in work, training, education or volunteering;
• Make use of community services;
• Carry out caring responsibilities for a child.

It must be noted that an individual does not have to be eligible for care and support under the Care and Support (Eligibility Criteria) Regulations 2014 for a safeguarding concern to be raised or for the local authority S42 duty to apply.  Care and support needs can be met by family member’s or friends or paid for via a private arrangement.

If there is reasonable cause to suspect that the adult has needs for care and support then this condition should be deemed as met.

2. The adult is experiencing, or at risk of experiencing abuse or neglect

Abuse or neglect can take many forms and the circumstances of individual case will always be considered. Responses and decisions will be based on personal circumstances and take into consideration the actual or potential impact on the adult's wellbeing together with the adult's view on the impact that the abuse or neglect has had upon them.

The Care Act 2014 sets out 10 specific categories of abuse and neglect.

For information about these categories, and examples of how the accompanying abuse or neglect may be experienced, see: The Care Act 2014, Categories of Abuse and Neglect.

The diagram below sets out factors that might be considered in making the necessary judgements about 'reasonable cause to suspect'; and whether the situation reflects the statutory criteria:

Diagram source: Making decisions on the duty to carry out Safeguarding Adults enquiries (Local Government Association).

3. As a result of Care and Support needs, the adult is unable to protect themselves against the abuse or neglect

Potential barriers to an adult's ability to protect themselves might include:

• They do not have the skills, means or opportunity to self-protect;
• They may have a disability which impairs their capacity to make decisions about protecting themselves or need support to enact decisions;
• They live in a group setting where they lack control over the way they are treated or the environment;
• There is a power imbalance;
• They may not understand an intention to harm them;
• They may be trapped in a domestic situation which they are unable to leave, or where coercion and control means they cannot make a decision about making change;
• Their resilience and resourcefulness to protect themselves from harm is eroded by, for example, coercive control and / or a high risk environment.

If any of the safeguarding criteria is not met, the adult is not an 'adult at risk' as defined in the Care Act and the duty to undertake safeguarding enquiries under S42 does not apply.

The local authority will decide what, if any, other action is appropriate and proportionate to the presenting circumstances. Where further action is required the local authority must ensure that this is taken. For example, a referral to a specialist support service or intervention by a social work team.

Anyone raising a concern should always seek consent of the adult before doing so, unless:

1. Seeking consent will increase the level of risk posed to them (or a child or other vulnerable adult); or
2. When consent cannot practically be sought (for example, the referrer is being denied access to the adult or the adult cannot be located in a timely way);
3. The adult lacks capacity to consent, and a decision has been made that raising a concern is in their best interests.

If it is not clear from the concern raised whether or not consent has been sought the practitioner handling the concern will contact the person that raised the concern to establish this.

If they are not contactable (for example if the concern was raised anonymously) the practitioner handling the concern will work on the basis that consent was not sought.

The reasons that the person raising the concern did not seek consent should be clearly recorded in line with local recording requirements.

If none of the above conditions apply then the adult must be contacted, advised that a concern has been raised and asked about their wishes in regard to next steps. The local authority will request that the person that raised the concern do this. If there is a reason why they cannot do this the local authority will make contact with the adult.  Consideration will be given to who is most appropriate and what is proportionate to the presenting circumstances.

It is only appropriate to make enquiries without consent if:

1. 'Vital interests' are at stake;
2. The adult is being subjected to inhuman or degrading treatment which is having a serious impact on their wellbeing;
3. Other adults or children are at risk of being abused;
4. There are concerns that decision has not been made freely but been unduly influenced or subject to coercive control.

Note: 'Vital interests' generally apply to life or death situations and serious, immediate concerns for safety.

In cases where the adult has capacity to withhold consent the local authority should ensure that any intervention is limited to that which is necessary to reduce the risk of harm.

In line with the overarching aims, duties and principles of adult safeguarding, the local authority must have regard for the views and wishes of the adult when deciding the outcome. In particular, whether the adult has expressed any outcomes that, as a consequence of the safeguarding referral they:

1. Want to achieve;
2. Want to change; or
3. Want to stay the same.

The views and wishes of the adult should be clearly recorded in line with local recording requirements.

Note: If the adult has expressed a clear view or wish about what the outcome should be the decision made by the local authority should reflect this as closely as possible.

It is important as part of the decision making process that the impact on the adult in question is understood. This will ensure that the response is appropriate and proportionate to their specific circumstances.

Impact includes;

1. Nature of the risk of harm (physical, emotional or otherwise);
2. Likelihood (and frequency) of the harm occurring;
3. Severity of harm should it occur;
4. Effectiveness of any current risk reduction measures; and
5. Impact on individual Wellbeing domains.

Note: When assessing the likelihood of harm occurring this will be an evidence based judgement.

If circumstances are having a significant impact on the adult the local authority intervention required is likely to be more urgent and intensive.

An adult's level of risk is determined by a range of interconnected factors, including personal characteristics, factors associated with their situation or environment and social factors.

Some of these factors are described below:

It is important to ascertain whether or not there have been previous safeguarding concerns raised in respect of the adult in question.

Although the existence of previous concerns must not dictate the decision of the current concern, they can provide a great deal of intelligence and information. In particular, they can help determine whether the person is experiencing sustained abuse and which approaches to support them may be most/least effective.

Some key questions:

1. Is the nature of the abuse or neglect the same?
2. Is the person alleged to be causing harm the same?
3. What was the local authority's previous response to the concerns?
4. What was effective/ineffective about the previous response/s?
5. What do previous concerns indicate about the person's ability to engage with the safeguarding process?

Note: In no circumstances should repeat concerns be seen as sole justification for case closure.

For further guidance see: Repeated Allegations Procedure

The Care Act 2014 is clear that all safeguarding decisions and actions must be made in a timely and proportionate way, based on the presenting circumstances.

The Gateshead Safeguarding Adults Board have purposefully not set timescales for determining the outcome of the safeguarding adult concern as it is important to progress the case in accordance with the needs of the adult at risk i.e. supporting the person to be able to make decisions.

The local authority Safeguarding Adults Coordinator (SAC) is responsible for making the decision about moving the concern onto the enquiry stage.

The decision should be clearly recorded in line with local recording requirements.

The record should be clear about the rationale behind decision made and how the views and wishes of the adult have been regarded.

In all cases, if the adult knew a concern was being raised, they must also be informed of the decision that has been made.

This can be done by the person that raised the concern or the local authority, whichever is deemed most appropriate and proportionate to the presenting circumstances.

The person informing the adult should also:

1. Speak to them about likely next steps;
2. Ascertain how they wish to be an active part of the safeguarding process;
3. Establish whether they will have 'substantial difficulty' engaging with any aspect of the safeguarding process, and whether the duty to provide independent advocacy applies.

If the adult does not wish to be present (in person or virtually) in any subsequent meetings or discussions, their views and wishes in relation to desired outcomes should be sought.

For further information about independent advocacy see Independent Advocacy.

Where concerns were raised by an organisation or professional, the person that raised the concern should be notified of the decision made, even if they are not likely to be involved in any subsequent enquiry or Safeguarding Plan. This will allow them to keep accurate records.

Where concerns were raised by a member of the public, they should be given adequate information to satisfy them that their concerns have been acted upon, but that does not breach confidentiality or compromise any ongoing process or enquiries.

All information sharing should be carried out with regard to the Caldicott Principles, Data Protection legislation and local information sharing policies.

If an enquiry (S42 or non-statutory) is to be instigated an initial strategy discussion will be the first course of action. This will determine what initial actions are required, by whom and how quickly.

See: Safeguarding Discussions and Meetings Procedure, Strategy Discussions.

If a decision is made that an enquiry is not appropriate the case should be closed.

See: Closing a Safeguarding Case Procedure.

Any external supporting documents (for example Disclosure Reports) must be stored in line with Data Protection legislation and local recording policy. They should also be stored in a logical manner so they can be easily accessed should the information be requested by legal services or the police.

The police should be notified as a matter of priority if:

1. The death of the adult is suspected to have been potentially attributed to abuse or neglect; and/or
2. There is reason to suspect that a crime is likely to be committed i.e., other people are at risk.

If the circumstances of the death mean that there are reasons to be concerned about risks to other adults, enquiries may need to be made to decide whether action needs to be taken to protect them. For example, this will often be necessary following a death in an organisational setting where other adults are continuing to receive a service.

If the criteria for a Section 44 Safeguarding Adults Review is met, a Safeguarding Adults Referral must be made.

See: Safeguarding Adults Reviews (SARS).

It is important to remember that a Section 44 Safeguarding Adults Review relates to how safeguarding partners have worked together to safeguard the adult and is not appropriate for single agency issues / failure; these should be reported to the CQC or the appropriate regulator and/ or to the appropriate Commissioning Team.

If there are concerns about how a provider has cared for the adult prior to their death a notification should be made to CQC via the CQC website.

The CQC has powers to bring a criminal prosecution against health and social care providers for failing to provide care and treatment in a safe way.

If there are concerns about the quality of care delivered by the provider, the relevant Commissioning Team (Local Authority and / or Integrated Care Board) should be notified. The Commissioning Team can instigate the provider concern process and, if necessary, decommission the provider if appropriate improvements are not made.

Following a death, it is usually a doctor, or the police, who will decide whether a referral to the Coroner is required. When a death has been referred to the Coroner, the Coroner will make decisions regarding whether a police investigation should take place and whether a post-mortem is required.