Safeguarding and quality in commissioning care homes

Legislative and policy framework

• No SecretsOpen

  No Secrets is the current Department of Health guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse in England. It will remain as statutory guidance until at least 2013. In May 2011 the government published a Statement of government policy on adult safeguarding.

  The statement sets out the six principles of safeguarding which have ‘taken account of the responses to the public consultation on “No Secrets” in 2008/0, the implementation of the Mental Capacity Act 2005 and the drive towards increasing personalisation of services.’ The government intends to legislate to make Safeguarding Adults Boards statutory.

  Local authorities have the lead responsibility for developing local multi-agency safeguarding procedures and ensuring implementation with key partners including the police, health and housing. Adherence to local procedures should form part of the contractual arrangements with care home providers. Providers may also develop more detailed guidance for their staff.

• Safeguarding Vulnerable Groups Act (2006)Open

  Following the Soham murders, the Bichard Inquiry (2004) recommended the development of a central service to bar unsuitable people from working with children and/or vulnerable adults. The Safeguarding Vulnerable Groups Act was passed as a result and the Independent Safeguarding Authority was established.

  Under the Act, employers must not knowingly employ people who are barred from working with vulnerable adults and they must refer people to the vetting and barring scheme if they have been dismissed for harming a vulnerable adult.

  Safeguarding Vulnerable Groups Act 2006 (SVG) and the Protection of Freedoms Bill

  The SVG Act was passed to help avoid harm, or risk of harm, by preventing people who are deemed unsuitable to work with children and vulnerable adults from gaining access to them through their work. The Independent Safeguarding Authority was established as a result of this Act. On 1 December 2012 the Criminal Records Bureau and Independent Safeguarding Authority merged to become the Disclosure and Barring Service (DBS).

  The Protection of Freedoms Bill (chapter 1 of Part 5) amends the Safeguarding Vulnerable Groups Act 2006, retaining the national barring function whilst abolishing registration and monitoring requirements. For further information see the Protection of Freedoms Bill Home Office Fact Sheet. 

• The Independent Safeguarding AuthorityOpen

  The Independent Safeguarding Authority (ISA) was created to implement the Safeguarding Vulnerable Groups Act 2006, to help prevent unsuitable people from working with children and vulnerable adults. It took over the functions previously under:

  • the Protection of Vulnerable Adults (PoVA) list
  • the Protection of Children Act (PoCA) list
  • List 99 (a list of people considered unsuitable for work with children, held by the Department for Children, Schools and Families).
    
    

  The coalition government is reviewing the implementation of the scheme and will make recommendations in 2011. The Protection of Freedoms Bill proposes to reduce the scope of the vetting and barring scheme, removing the concept of both ‘a vulnerable adult’ and ‘a specified place’. The bill proposes that the activity being carried out (broadly encompassing health and social care activity) will bring individuals into the scope of the scheme. It will apply to both paid workers and volunteers and will exclude family members and personal relationships. Commissioners should ensure that care homes understand their duty to refer to the ISA any person who has harmed or put at risk a vulnerable adult.

• Mental Capacity Act (2005)Open

  The Mental Capacity Act (2005) applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make some decisions for themselves.

• Deprivation of Liberty Safeguards (DOLS)Open

  'The deprivation of liberty safeguards mean that a ‘managing authority’ (i.e. the relevant hospital or care home) must seek authorisation from a ‘supervisory body’ in order to be able lawfully to deprive someone of their liberty.' (Ministry of Justice, 2008)

  Care home managers and staff should have an understanding of the Deprivation of Liberty Safeguards. The DOLS apply to people who:

  • are aged 18 or over
  • are living in a care home or long term hospital
  • do not have the capacity to make a decision about this aspect of their liberty and their care.
    
    

  Care homes staff should be aware of the types of circumstances in which they should make an application for deprivation of liberty to be authorised. Care homes are required to notify the Care Quality Commission of any applications and the outcome of the application.

  Commissioners should be alert to the possibility that they are commissioning services which may deprive an individual of their liberty. In some cases this may be in the person’s best interests; in others this could be a breach of their human rights. Particular attention should be given if a person:

  • is restrained, either physically or by the use of medication
  • requires a minimum of 1-1 support when out
  • has their contact with family or friends restricted, even if this is to protect them from abuse.
    

  Deprivation of Liberty Code of Practice

  At a glance 43: The Deprivation of Liberty Safeguards

• Dignity in CareOpen

  The Dignity in Care campaign has sought to improve standards in the way that people are treated in care services. It promotes services that are person-centred and seeks to ensure that people are treated as individuals and with respect. Where people are respected as individuals, given choice and control the risk of abuse, neglect and harm occurring is reduced.

  SCIE Guide 15: Dignity in care
  Join the Dignity in Care Network.

• ADASS Safeguarding Adults National FrameworkOpen

  The Association of Directors of Adult Social Services (ADASS) published ‘Safeguarding Adults: A National Framework of Standards for good practice and outcomes in adult protection work’(PDF)

  A further Advice Note (PDF)was published in April 2011 to support directors in their leadership role in adult safeguarding.

• The Equality ActOpen

  The Equality Act simplifies and consolidates UK discrimination legislation. It applies to local authorities and service providers. Unfavourable treatment due to discrimination constitutes abuse. Equality legislation is therefore an important tool in preventing or responding to this type of abuse.

  A Summary Guide for public sector organisations.
  
  The new public sector Equality Duty came into force on 5 April 2011. Public authorities are required to have regard to the need to tackle discrimination and promote equal opportunities.
  
  

• The Law Commission review of adult social careOpen

  In 2010 the Law Commission published a consultation paper for the review of adult social care. It has now published its recommendations. The review separates ‘safeguarding’ from ‘adult protection’:

  ‘Whilst safeguarding relates to the prevention of abuse and has a broad focus that extends to all aspects of a person’s general welfare, adult protection refers to investigation and intervention where it is suspected that abuse may have occurred.’ (Law Commission, 2011)

  Part 9 (p109) of the full report focuses on adult protection. Read the report.

  It proposes a number of measures to clarify and strengthen the legislation around safeguarding. The recommendations include that:

  • local social services authorities have the lead coordinating responsibility for safeguarding
  • there should be an enhanced duty to cooperate between relevant organisations in adult protection cases
  • adult safeguarding boards should be placed on a statutory footing.
    
    

  The Government has since announced that Safeguarding Boards will be made compulsory for councils and put on a statutory footing.

• Local authority policy and procedures Open

  All local authorities should have developed multi-agency procedures for safeguarding under the No Secrets guidance. In a number of areas, local authorities have worked to develop cross-boundary procedures. See the London multi-agency policy and procedures (PDF).

  Commissioners should assess adherence to multi-agency procedures when monitoring the quality of care home provision.

• The Care Quality CommissionOpen

  Under the Health and Social Care Act (2008) all health and adult social care providers are required to register with the Care Quality Commission (CQC) if they provide 'regulated activities'.
  
  Information on regulated activities

  CQC Essential Standards of Quality and Safety standards are set out in 28 ‘outcomes’. Providers of 'regulated activities' (link ) must comply with these standards. In particular ‘Outcome 7’ covers safeguarding people who use services from abuse. However, all the CQC outcomes are fundamental to preventing neglect, harm and abuse.

  Commissioners must ensure that providers have robust systems to assure compliance with the standards and that providers inform them of any risks of non-compliance. Commissioners should utilise all the information available from CQC on services they commission as part of their monitoring and decision making processes.
  
  Guidance for NHS providers on how to use their Quality Risk Profiles (PDF)

• The Criminal Records Bureau Open

  The CQC requires all providers to carry out enhanced Criminal Records Bureau (CRB) checks on all employees applying to work with vulnerable adults. The Protection of Freedoms Bill proposes to make CRB checks ‘portable’ so that workers can change employers without having to be checked each time. However, employers will be able to sign up to be alerted of any changes. The CRB should form part of the routine recruitment process in a care home.

• Professional registrationOpen

  Many professionals, including doctors, nurses and social workers, are required to register with a professional body. These organisations aim to protect the public by setting and maintaining standards within the professions, by publishing codes of practice (or conduct), registering individuals and monitoring continuous professional development. Commissioners should refer any concerns about professionals working in care homes to the professional body as well as to CQC.

• Office of the Public GuardianOpen

  The Office of the Public Guardian supports the Public Guardian to protect people who lack capacity to make decisions. It does this through a number of mechanisms, including managing a register for Lasting Powers of Attorney and Enduring Powers of Attorney. Such powers are awarded by the Court of Protection in line with the Mental Capacity Act.

  Commissioners should work with the Public Authority Deputy and care home providers to ensure that any safeguarding concerns are highlighted. Concerns may be about people who need referring for support and representation, but they could also be about people who are already represented but where the ‘deputy’ or ‘appointee’ does not appear to be acting in the person’s best interests.

Resources

• SCIE resources on the Mental Capacity Act (2005)
• SCIE Guide 32: Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults