Kirsty Keywood reflects on the challenges presented by Safeguarding Adults Reviews in light of the Care Act 2014
Those of us who are involved in the law relating to adult safeguarding are sadly aware of the all too frequent occurrence of deaths, neglect and abuse of people who have needs for care and support. Those responsible for such events may, of course, be family members or close acquaintances. Alternatively, the perpetrators may be relatively unknown to the victim, engaging in conduct which could be termed disability ‘hate crime’. In many cases, however, the actions of public bodies, such as the NHS, local authority social services departments, police and housing associations are in some way implicated in the abuse or neglect of an individual.
A new statutory framework
The process of undertaking an investigation to identify the circumstances surrounding the death or harm of an adult has, until relatively recently relied on the guidance produced by ADASS, which served as the blueprint for Serious Case Reviews in England and Wales. That document identified a range of functions of the Serious Case Review, but recognised the importance of the Review in improving practice by acting on learning and establishing what, if any, lessons could be learnt about how professionals and agencies work together to safeguard adults. The Government recognised the need to provide a statutory framework governing the operation of adult safeguarding boards and the circumstances under which a review should be instigated. To this end the Care Act 2014 s.44 requires that Safeguarding Adults Boards must undertake a review of adults who have needs for care and support and are suspected of having experienced serious abuse or neglect. There are important legal drivers at work here, since there is an obligation on the State, derived from the European Convention on Human Rights, to initiate and conduct an ‘effective’ investigation into those events where public bodies may be implicated in the deaths or ill-treatment of its citizens.
Significantly, the Care Act 2014 empowers Safeguarding Adults Boards to demand the provision of information from agencies or individuals in the course of what is now to be termed a Safeguarding Adults Review (SAR). Investigators undertaking reviews have frequently met with considerable obstacles to the gathering of information pertinent to their investigation. This has arisen in some circumstances because of concerns about the legal consequences of disclosing confidential information. In others, it has arisen because local practice concerning the drafting of individual management reviews have simply not elicited all information deemed relevant by the Serious Case reviewers.
Ongoing challenges and questions
Despite this legislative innovation, however, I think it is important to ask some questions about the future operation of SARs. My thoughts on these matters are personal and in no way represent the views of those with whom I have worked with on Serious Case Reviews.
- The nature of the reviews published to the world at large (taking the form of executive summaries, rather than full reports) can limit the opportunities for public accountability of those agencies who systems, processes and practices have been found wanting. Of course, some may argue that the goal of a review should not be to provide the level of “effective accountability” that is required by European human rights law. The coronial process can prove effective in delivering that accountability, and indeed many would argue that the Coroner’s Court is the appropriate forum to discharge the investigative responsibilities imposed by the European Convention on Human Rights. That said, there is, I think, an urgent need to provide a greater degree of transparency of adverse events to those both intimately and more remotely connected to adverse incidents that may constitute abuse or neglect. In particular, there is a great merit in thinking about these reviews as offering the potential for a form of restorative justice, an approach which would chime with recent drivers to encourage candour among professionals when the delivery of health and social care services produces unintended, adverse consequences.
- A survey of even just a handful of reviews is likely to leave the reader with a set of recommendations and findings that are recited again and again. The failings are typically identified as systemic (e.g. rooted in poorly drafted/misunderstood policy briefings; organisational practices that preclude effective inter-agency working) practice-oriented (significant training deficits identified among teams of colleagues) or, more rarely, relating to individual acts of negligence or ill-treatment. This forces us to question what lessons are really being learnt from such reviews at local, regional and national levels. Large scale meta-analysis of abuse and neglect is required beyond that undertaken by the Confidential Inquiry into the Premature Deaths of People with Learning Disabilities, in order to fully capture the scale of the problem and to review the likely success of recommended changes.
- The terms of reference for SARs remain, at the present time, to be determined by the commissioning Safeguarding Adults Board. The framing of the terms of reference is key to providing an effective scrutiny of the care and support delivered by relevant agencies. The narrower the terms of reference, the more limited the scope for examining the impact of national policies on how we frame and respond to the needs of people with disabilities whose needs and circumstances are perceived as ‘other’ to our own. In particular, modes of consultation and engagement with victims and their families must prove responsive to their needs and interests. Their insights and perspectives are relevant in terms of undertaking the investigation and in setting out recommendations, but also in establishing future review mechanisms to evaluate the success of the recommendations.
Kirsty Keywood is a member of the School’s Centre for Social Ethics and Policy. The Centre provides a series of online and face-to-face programmes for students, researchers and professionals.