Undertaking a Section 42 Enquiry

Strengths based approach

Wherever possible, every conversation with the adult (or their representative) should be from a strengths perspective. This means that before you talk about external solutions to help achieve an outcome or manage a risk you must support the adult to explore whether there is:

1. Anything within their own power that they can do to help themselves; or
2. Anything within the power of their family, friends or community that they can use to help themselves.

A strengths based approach is empowering for the adult and gives them more control over their situation and how best to resolve any issues in the best way for them. The end result may still be that the local authority or another organisation intervenes, but this decision will have been reached knowing that it is the most proportionate response available.

Adopting a strengths based approach involves:

1. Taking a holistic view of the adult's needs, risks and situation in the context of their wider support network;
2. Helping the adult to understand their strengths and capabilities within the context of their situation;
3. Helping the adult to understand and explore the support available to them in the community;
4. Helping the adult to understand and explore the support available to them through other networks or services (e.g. health);
5. Exploring some of the less intrusive/intensive ways the local authority or other organisations may be able to help (such as through prevention services or signposting).

Good information and Advice and Prevention

The duty to provide good information and advice and to consider ways to prevent, reduce or delay needs for Care and Support applies at all times.

It is vital that you understand your duties in relation to the above. Please use the links below to access further information as required.

• Preventing Needs for Care and Support for information about the duty to prevent, reduce or delay needs;
• Providing Information and Advice for information about the duty to provide good information and advice, including the duty to make sure that information and advice is accessible to the person receiving it.

The objectives of a statutory enquiry under s42 of the Care Act are to:

1. Establish facts (determine what has actually happened/may happen);
2. Ascertain the adult's views and wishes;
3. Assess the needs of the adult for protection, support and redress and how they might be met;
4. Protect from the abuse and neglect, in accordance with the wishes of the adult;
5. Make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect; and
6. Enable the adult to achieve resolution and recovery.

To ensure S42 enquiries are appropriate and proportionate the following key points should be considered:

1. What facts need to be established?
2. What information is relevant/irrelevant?
3. What information has already been gathered, and how reliable is it?
4. What additional information is needed and what is the best way to gather it?

Depending on the outstanding information relevant to the specific circumstances, the following are some key questions of fact that enquiries may need to answer:

1. What is the adult's insight into the concern and situation? Is mental capacity an issue? Is coercion or undue influence a concern?
2. What does the adult want to happen/not happen?
3. What was the impact of the abuse on the adult - at the time if happened and now - do they need support to recover? Have their needs changed?
4. What is the nature of the alleged abuse or neglect? How likely is it that it occurred?
5. Did the alleged abuse happen in more than one place? Are there any other people at risk?
6. Who caused the alleged abuse or neglect? Do they still pose a risk?
7. Has the alleged abuse been happening for some time? Are there previous referrals? If so, is there a pattern?
8. Is the alleged abuse likely to happen again? If so, how can this be mitigated?
9. Has a crime been committed? Is advice needed from the police?
10. Is the adult able to protect themselves from further abuse?

Enquiry actions should:

1. Be appropriate and proportionate to the level of risk, nature of concerns raised and needs of the adult; and
2. Have regard for the views and wishes of the adult, and any outcomes they wish to achieve from the safeguarding process; and
3. Never place the adult (or a child or other vulnerable adult) at greater risk of harm occurring.

The following are examples of possible enquiry actions:

1. A conversation with a carer or family member;
2. A conversation with a professional or organisation;
3. A conversation with anyone deemed to be a witness to what may have happened;
4. A conversation with the person alleged to have caused harm;
5. An examination of records, including case notes, Care Plans, ABC charts etc;
6. An exploration into alternative options for meeting needs, including accommodation;
7. An exploration into available support services;
8. A review of equipment

The decision about how best to approach the enquiry should be made by the local authority Safeguarding Adults Coordinator (SAC).

Under s45 of the Care Act, any professional or organisation asked to co-operate in the enquiry has a duty to do so.

Where the approach involves another professional or organisation making enquiries, the local authority still remains the lead agency, with responsibility for monitoring progress of enquiries made by others and coordinating the safeguarding process.

Agreed enquiries should be recorded in line with local recording requirements.

It should be clear from the record:

1. The specific enquiries to be made;
2. Who has been allocated which enquiry;
3. The timeframe within which the enquiry must be made.

Depending on the number of enquiries to be made, it may be beneficial to develop an Action Plan for this purpose.

When having direct conversations with the adult and others, a professional that knows the adult already may be best placed to do so.

When the abuse or neglect is alleged to be taking place within a family or informal relationship, the local authority will normally be the most appropriate to lead. This is because personal relationships can often prove complex and difficult to assess and intervene in.

The analysis of specialist records, such as ABC charts and Treatment Plans should be undertaken by a professional with relevant knowledge and experience (e.g. a Clinical Psychologist, Psychiatrist or Community/District Nurse).

Where a service provider is alleged to have caused harm, any analysis of their internal records should normally be undertaken by the manager of that service (or another appropriate person if concerns relate to the manager). This is the case unless there is known to be a serious conflict of interest, there is a history of similar concerns, previous enquiry action by the provider has been inadequate or the police are investigating.

Independent advocates should not be asked to make enquiries, unless that enquiry is to ascertain the views and wishes of the adult about a particular matter, or to support them to understand an action being undertaken by others.

The table below sets out further examples about who may be best placed to carry out particular types of enquiry action:

As the name suggests, single-agency approaches involve one agency. This may be the local authority but could also be another agency instructed by the local authority to make enquiries.

A single agency approach is appropriate when it is a disproportionate response to involve multiple agencies.

Depending on the information gathered by the single agency it may be deemed necessary to change to a multi-agency approach, or contact the police to instigate a criminal investigation.

A multi-agency approach involves more than one agency. This can range from 2 agencies to a large number of agencies, depending on the nature and scope of the enquiries to be made.

A multi-agency approach can be adopted when there are a large number of enquiries to be made, but can equally be deemed appropriate when just a single enquiry action is needed, if a multidisciplinary approach to that action would be beneficial. For example, a joint assessment of need or risk between the local authority and a health professional when the person has complex health needs. 

A multi-agency approach must be co-operative and collaborative in its nature- information that may impact on enquiries being made by another professional or agency should be shared with the lead practitioner at the earliest opportunity to prevent duplicated or enquiries that are no longer relevant being made.

A police-led criminal investigation only takes place when a criminal offence may have been (or is likely to be) committed.

Examples of offences include:

1. Physical assault;
2. Sexual assault or rape;
3. Psychological abuse;
4. Hate crime;
5. Wilful neglect;
6. Unlawful imprisonment; and
7. Theft or fraud.

The Code of Practice to the Criminal Procedure and Investigations Act 1996 (CPIA) defines a criminal investigation as:

"An investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it".

Further information about criminal investigations, including the investigation process itself can be found in the College of Policing Authorised Professional Practice.

Deciding whether a criminal investigation is required

The police are responsible for deciding whether a criminal investigation should take place.

The local authority is not responsible for deciding whether a police-led criminal investigation should take place.

The local authority is responsible for supporting the police decision by providing relevant information about the concerns that have been raised.

Making enquiries when there is a criminal investigation

Other enquiries can run alongside a criminal investigation, but the criminal investigation will always take precedence.

See: Section 9, Making Enquiries: Police-Led Criminal Investigations.

Organisational approaches take place alongside and in addition to any single-agency, multi-agency or police-led criminal investigation into individual concerns.

An organisational approach is instigated when there a pattern of abuse or neglect allegations relating to a single service provider or person.

The purpose of an organisational approach is to identify organisational failings, redress them and take any other action required to ensure the pattern of abuse or neglect ends.

Organisational approaches involving a non-regulated service provider (for example a Day Opportunities provider or community group) should always involve the relevant local authority Commissioner, as contract decisions may form part of the enquiry.

Organisational approaches involving regulated service providers (for example care homes, domiciliary care providers, GP's) should also always involve the Care Quality Commission, as there may be implications for the provider's registration.

Organisational approaches related to health settings, should always involve a Safeguarding lead from the local relevant NHS body (normally the Integrated Care Board or NHS Trust).

Our local Serious Provider Concern Process and Provider Failure Protocol can be found in the Practice Resources and Guidance (Local) section of the Contacts and Practice Resources. 

Further information about organisational abuse can be found in our Allegations against Service Providers (including Organisational Abuse) practice guidance. 

The decision about how best to approach the enquiry should be made by the local authority Safeguarding Adults Coordinator (SAC).

Under s45 of the Care Act, any professional or organisation asked to co-operate in the enquiry has a duty to do so.

Where the approach involves another professional or organisation making enquiries, the local authority still remains the lead agency, with responsibility for monitoring progress of enquiries made by others and coordinating the safeguarding process.

All information gathered during enquiries should be recorded. This includes telephone calls, emails, text messages, letters, face-to-face conversations and meeting, and any other form of communication.

This should take place in line with local recording requirements.

Partner agencies should refer to their own internal policies and procedures as necessary.

The following must be clear from the record:

• What is fact and the evidence for this rationale;
• What is professional opinion;
• What is a view or wish of the adult or their informal network.

Information gathered should be shared when requested by the lead practitioner or Safeguarding Adults Coordinator (SAC) as part of the monitoring function.

Otherwise, information should be shared in line with the timeframes and methods set out at the planning meeting, or earlier if it is likely to have an impact on the process.

Examples of information that is likely to have an impact on the process:

1. Evidence that risk may have increased;
2. Evidence that there is no longer a risk;
3. Information has been obtained that another agency was going to gather;
4. Information that suggests a crime has been committed;
5. Information that suggests a change of approach may be needed.

Any information shared should be:

1. Necessary for the purpose for which it is being shared;
2. Shared only with those who have a need for it;
3. Accurate and up to date;
4. Shared in a timely fashion;
5. Shared accurately;
6. Shared securely.

Any external documents gathered during enquiries 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 following should always be considered before undertaking any enquiry action, particularly one that involves having a conversation with the adult, their carer, service provider or the person alleged to have caused harm:

1. The adult's need for care and support;
2. Any ongoing/increased risk of abuse or neglect and the adult's ability to protect themselves;
3. The impact on the adult and their wishes;
4. The possible impact on important relationships; and
5. The risk of new, repeated or increasingly serious acts involving children, or another vulnerable adult.

If the adult has substantial difficulty

If the adult is likely to have substantial difficulty in participating in any conversations, the advocacy duty applies (unless an appropriate person to support them during the conversation can be identified).

See: Independent Advocacy.

If the adult lacks capacity

If there are concerns that the adult may lack capacity to understand the nature of the concerns, recall or communicate their recollection of events then a mental capacity assessment should be completed to confirm whether or not this is the case.

If it is the case then it is likely not going to be in their best interests (or of any benefit to the enquiries) to speak to them about the allegations.

Note: In this case, the adult should still be supported to be a part of any meetings if they wish to be (or appropriately represented).

Supporting the adult during the conversation

The following should be considered to ensure that the adult has the support they need before, during and after the conversation:

1. Where is the best place to have the conversation?
2. How long should it aim to last?
3. When should it take place?
4. Will the adult need a break?
5. What preparation needs to be undertaken with the adult?
6. Who is the best person to have the conversation?
7. Does the adult want anyone with them?

Note: If an independent advocate has been appointed (or an appropriate other person identified) they must be a present to ensure the adult is effectively supported.

See: Making Safeguarding Personal. 

After the conversation

The adult should be told what is likely to happen next, and when they can expect to be contacted again.

Having a conversation with the person alleged to have caused harm can be a positive way to prevent future harm. For example, it can help them recognise the need to seek their own support, take steps to modify their behaviour or to better understand the needs of the adult.

Any decision to have a conversation with the person alleged to have caused harm should be made with regard for the views and wishes of the adult about doing so.

In particular:

1. Whether or not the adult is happy for the conversation to take place; and
2. Whether there is any particular information the adult would like to be withheld.

The Safeguarding Adults Coordinator (SAC) should also consider:

1. What the conversation is likely to achieve (will it benefit the enquiry and reduce future risk?);
2. Whether the concern raised may be malicious;
3. Whether the conversation will increase risk to the adult or others;
4. Whether the conversation will damage an important relationship;
5. If the person provides care and support to the adult, whether there is a risk that needs may not be met.

Where a conversation does take place the person should be provided with only enough information to enable them to understand what it is they are alleged to have done (or may do) and to allow their view to be heard and considered.

The tone of the conversation should not be accusatory in nature, but fact finding.

Allegations against other adults with Care and Support needs

See: Allegations against adults with Care and Support needs Procedure

Safe conversations

Risks should be assessed and lone working procedures followed when having a conversation with the person alleged to have caused harm.

Notes should be taken during any conversations with the adult, or anyone else.

Below are some general good practice rules for note-taking:

1. Think beforehand about the level of note-taking that may be required-ensure you have to right tools and that they are proportionate;
2. Explain to the adult/other person and anyone else present that you will be taking some notes and why;
3. Reassure the adult/other person and anyone else present that you will still be listening to them even when you are making notes;
4. Don't record everything that is said. This will prevent you from engaging in the conversation and cause distraction-you need to pick out what is relevant and important to the enquiry;
5. Make sure you record everything that the adult says is important to them, even if it does not appear to be relevant to you or others;
6. If the adult/other person uses a certain phrase that is powerful or indicative to the context you should record this word for word;
7. Sometimes information is detailed or complex and taking notes could take a little longer than expected. If this is the case you should consider making a polite request for a brief pause to allow for notes to be made;
8. Sometimes people provide a lot of information without a pause-perhaps they are anxious or simply have a lot to say. Trying to keep up can lead to you over-recording (recording everything regardless of relevance); missing key points, failing to understand what is being said or appearing disengaged from the conversation. If this is the case you should consider politely requesting a pause to allow for clarity and notes to be made;
9. Refer to your notes to summarise what has been said during the conversation, reflect and seek clarity about what has been agreed and next steps;
10. Try to make notes in a legible way and take care to use appropriate language-they may be used as evidence;
11. Confidentiality must be maintained at all times. Make sure that the notes are kept securely and only available to people authorised to see them;
12. Always file or dispose of any notes securely when a formal record of the conversation has been made.

Other enquiries can run alongside a criminal investigation but the criminal investigation will always take precedence.

Where a police investigation is already taking place (or will be) the lead practitioner must establish from the investigating officer any potential other enquiry actions that may/may not be carried out.

In particular, any planned conversations with the adult, person alleged to have caused harm or witnesses should never take place unless the investigating officer has agreed to this. When they do take place, they should be done in line with any boundaries set by the officer, so as to prevent anybody being 'tested' prior to any formal police interview.

Any information gathered during other enquiries must be provided to the police to aid their investigation.

Note: Although the lead practitioner may have to put investigative enquiry actions on hold, any resilience and recovery actions to support the adult to deal with what has happened and reduce future risk should still take place.

If, during the course of any other enquiries, physical evidence comes to light steps should be taken to preserve this so it can be used appropriately in the criminal investigation.

See: Disclosure and Raising a Concern Procedure, Preserving Physical Evidence

As part of the criminal investigation, it is likely that the police will want to interview the adult.

It is the responsibility of the police to determine when and how they interview the adult, and to take any measures to support them and manage subsequent increases in risk.

These decisions should be made in accordance with Achieving Best Evidence (ABE) guidance and include consideration of intermediaries or existing advocates.

The police may seek the help of an appropriate adult to support the adult during the interview.

If the case proceeds to court the police and Crown Prosecution Service (CPS) must consider any 'special measures', as set out in the Youth Justice and Criminal Evidence Act 1999.

These measures assist eligible witnesses during the judicial process and can include:

1. The use of screens in court proceedings;
2. The removal of wigs and gowns;
3. The sharing of visually recorded evidence-in-chief (the evidence given by a witness for the party who called him or her);
4. Directions about cross-examination and re-examination; and
5. The use of intermediaries and other aids to communication within the court.

The adult should also be supported to access relevant national and local services to support them through the judicial process.

Unless instructed otherwise by the investigating police officer, only the police should have conversations with the person alleged to have caused harm.

This includes:

1. Interviewing or questioning them;
2. Providing any information about the allegations that have been made;
3. Talking about any enquiries taking place.

It is the responsibility of the police to determine when and how they interview the person alleged to have caused harm, and to take any measures to manage subsequent increases in risk.

If the person alleged to have caused harm is another adult with care and support needs

See: Allegations against Adults with Care and Support Needs Procedure

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 this is the case, follow the guidance in the Disclosure and Raising a Concern Procedure, Raising a Concern.

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.

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 serious provider concern process and, if necessary, decommission the provider if appropriate improvements are not made.