Jef Smith looks at proposals to reduce abuse of the vulnerable through statutory means.

It cannot often enough be reiterated that institutions have the capacity to institutionalise abusive practice, and even repeated media coverage of the abuse of people in homes and hospitals does not stop a continuing flow of examples.

Winterbourne View, which a few months ago was the most recent in an infamous sequence of such establishments, has already been overtaken by accounts of the inhumane treatment of patients revealed by the recent reports of the Mid-Staffordshire Hospital Inquiry. It is useful to recall, however, that the great majority of abuse occurs in domestic settings and is committed not by paid workers but by people well known to the person who suffers. Much of this behaviour remains unreported, because it is usually unobserved by third parties and takes place within relationships, which retain a degree of intimacy, dependence and even collusion.

The title of the Department of Health document No Secrets, first published in 2000, which has historically provided guidance on the handling of adult abuse, is therefore sadly more of an aspiration than a statement of fact.

In practice, incidents of abuse are characteristically shrouded in mystery, often deliberately concealed. Guilt, treachery and deceit are central features. In addition, society, either in the form of individuals who might intervene informally or government, has been reluctant to intrude in relationships usually regarded as private. Officialdom is cautious about getting involved in domestic tensions, and the judgment that a conflict has passed the threshold of acceptability into active abuse is not always an easy one to make.

Law Commission report

Nevertheless there has been mounting concern that present mechanisms for safeguarding adults in their own homes, as well as those in institutional settings, provide inadequate protection.

The issue was given thorough consideration by the Law Commission, which in 2012 published its report on a comprehensive study of social care legislation, much of which has developed piecemeal over several decades. As the Department of Health (DH) expressed in its reaction to that document: “For over 60 years, social care law has been anchored in the post-war period, looking back to the Poor Law for its principles. Whilst other areas have moved forward with modern times and expectations of public services, care and support law has been left unreformed; a web of complicated, overlapping requirements which have led to confusion, challenge and frustration.”

Given the complexity of current safeguarding arrangements and the serious human rights issues involved, the DH has proceeded cautiously. In July 2012, it published a draft Care and Support Bill, which incorporated many, though not all, of the Law Commission’s recommendations. This has since received scrutiny from a Parliamentary Joint Select Committee and been subject to a period of public consultation. The next step in the legislative process will be the production of an amended Bill, which will then start its progress through Parliament.

Though the issue is not one that will promote dissent on party lines, the consultation has revealed several areas of outstanding disagreement which will need to be resolved.

Terminology

One important area of discussion is terminology. “Vulnerable” has for some become a pejorative description, implying powerlessness, while others maintain that it is precisely the imbalance of power between abuser and abused that is central to abuse.

The Law Commission preferred the term “adult at risk”, but this too has its critics and it can certainly be interpreted too broadly to be really useful. The Commission suggested using the phrase “at risk of harm” and then defined harm to include ill treatment, the impairment of health or development, neglect, and unlawful conduct affecting property, rights or interests. The Bill’s focus on financial exploitation, to the apparent exclusion of other forms of abuse, is odd and surely too restrictive.

The Commission’s inclusion of self-harm, however, is controversial and the charity Action on Elder Abuse (AEA), among others, has called for caution here, preferring to focus on situations in which an active abuser can be identified. The Government has steered round much of this debate, claiming, not altogether convincingly, that it has been able “to find another way to address the issue … of unhelpful terminology” since “what matters most is that the underpinning criteria are coherent”.

The centrepiece of the Bill is, perhaps predictably, to introduce additional administrative machinery. This takes the form of Safeguarding Adults Boards (SABs), which will differ from the existing local safeguarding committees by carrying statutory authority, removing the anomaly between the currently relatively weak adult protection arrangements and the somewhat similar but tougher provision for dealing with child abuse.

The Government announced its commitment to the concept of SABs in May 2011 as soon as the Law Commission had reported an initiative, which probably owed something to the long-established views of Paul Burstow, then Minister of Care but now ironically banished to the back benches.

A SAB will be established in the area of each local authority, which exercises adult social care powers. Though the chair of the board will not automatically fall to the council, it will be for the local authority to exercise the lead role. Each board must also include representatives of the health services and the police, together probably with other appropriate agencies such as the Care Quality Commission (CQC) and voluntary bodies with appropriate expertise.

Duties of SABs

One of the duties of a SAB will be to commission safeguarding reviews where there is an unexplained death or a suspicion of poor practice. The Government is anxious not to appear punitive in such instances, insisting that the aim of a review is to learn lessons, not to allocate blame. This sounds weak, since holding malefactors to account is surely wholly appropriate where specific abusers can be identified.

It is true that the police, who will be full members of SABs, have the prime responsibility for dealing with criminal activity. Nevertheless, the fact that the Government, on its own admission, “prefers using the term ‘enquiries’ rather than ‘investigations’” and insists that reviews should have a “focus on learning from experience and improving services for users” rather than identifying who failed to take appropriate action and why, illustrates a softly-softly approach at odds with the severity of the problem.

The more regular work of SABs will be reviewing safeguarding procedures and practices, advising other public bodies, and improving the skills and knowledge of responsible professionals through better training. In carrying out these functions each SAB must publish a plan of its work including key objectives and produce an annual report on progress.

The central task of a SAB, says the Bill, is “providing leadership, ownership and co-ordination of multi-agency working”. It is the multi-agency nature of safeguarding that, as with many other aspects of social care, places a high premium on co-ordination. The legal provisions here, however, are not accepted by all respondents to the consultation as sufficiently robust.

AEA, for example, argues that the relationship of SABs to national organisations such as the CQC is not defined clearly and fears as a result that people needing help will continue to get “different responses to the same problems” and be “repeatedly transferred from one agency to another”. The familiar possibility of falling between stools remains a real threat, even if a duty to co-operate were to be built into the legislation.

It is ironic too that a government that has been criticised for so often riding roughshod over local interests should in this instance be accused of an excess of localism. An area-by-area approach, which the draft Bill promotes, certainly does not adequately address the issues presented by national scandals such as those arising from the involvement in abuse of a provider with services scattered across several local authority areas.

Recent revelations about the deaths of many people with learning difficulties because of inadequate healthcare, for example, cannot be realistically addressed by a number of local committees; such problems require a co-ordinated national response. But what AEA elegantly identifies as “the need to balance national prescription with local discretion” is always elusive.

Key issues for domiciliary care

One further issue of contention that remains unresolved is the extent to which local authority officers should be able to enter private property where they reasonably suspect that abuse might be taking place.

The DH is obviously reluctant to create what might be thought draconian powers, but it has conceded that there exists “strong feeling from some that a specific power of entry would give an opportunity to ensure that people who are unable or unwilling to ask for help can have their voices heard”.

Care workers who have observed the fear of speaking out in clients they suspect are being abused will readily recognise the opportunity for empowerment, which will be missed if nothing comes of this idea. Acknowledging the complexity of the issue and the depth of feelings it arouses, the DH has carried out a separate consultation specifically on the possibility of a new safeguarding power, and a decision on what should be included in the eventual Bill is awaited.

There remains too the need to relate instances of individual abuse or poor care to the wider pattern of provision and commissioning. Although abuse can — and often does — take place in situations in which no formal care-providing agency is in the picture, it has been claimed that the draft Bill does not emphasise strongly enough the primary responsibility of care providers in ensuring the quality of their own staff.

This is a point repeatedly made by the CQC, sometimes when rather defensively acknowledging the limits to its own powers, and it is odd that the Bill does not take the opportunity to underline the responsibilities of, for example, home care agencies to spot and report abuse perpetrated not by their own staff but by others in situations where they are involved. Domiciliary care workers often have a closer insight into the lives of families where abuse might be occurring than any other professionals. What the DH in a different context has called “the duty of candour” would seem very appropriate here.

Local authorities must also accept their share of responsibility as the major purchasers of care services. It is unlikely that the DH will take up AEA’s suggestion that “only services that maintain essential standards should be commissioned” since that would rule out large numbers of providers who sometimes, or even regularly, fall short. However, the force of the argument that “there needs to be a contractual link between commissioning and the results of CQC inspections” is surely obvious.

Unfortunately, in straightened economic circumstances, many local councils allow cost rather than quality to determine their purchasing priorities; however, many good providers point out that this distorts the market with false incentives.

As so often, finance seems to have the last word. There is a fear that all the hard work that has gone into creating a statutory status for SABs will be undermined by their lack of funds to carry out their work effectively. Talk is all very well, but this issue calls for decisive action, which costs money.

It has been calculated that around half a million older people in the UK are experiencing abuse and it is well known that the perpetrators are often so-called friends or loved ones, or others in positions of trust. Ultimately, no amount of boards and inquiries will compensate for a lack of resources to change those shocking facts.

Last reviewed 25 April 2013