Section 42 Enquiry
Under Section 42 of the Care Act, local authorities must make enquiries, or cause others to do so, if they reasonably suspect an adult who meets the criteria is, or is at risk of, being abused or neglected. An enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place.
An enquiry could range from a conversation with the adult right through to a much more formal multi-agency plan or course of action. Whatever the course of subsequent action, the professional concerned should record the concern, the adult’s views and wishes, any immediate action has taken and the reasons for those actions.
The circumstances of any actual or suspected case of abuse or neglect will inform the response. For example, sometimes abuse or neglect may be unintentional and may arise because a family carer is struggling to care for another person. This makes the need to take action no less important and the primary focus must still be on how to safeguard the adult, but in such circumstances, an appropriate response could be a support package for the carer and monitoring.
In other circumstances where the safeguarding concerns arise from abuse or neglect deliberately intended to cause harm, then it would not only be necessary to immediately consider what steps are needed to protect the adult but also whether to refer the matter to the police to consider whether a criminal investigation would be required or appropriate.
The nature and timing of the intervention and who is best placed to lead will be, in part, determined by the circumstances. For example, where there is poor, neglectful care or practice, resulting in pressure sores, then an employer-led response may be more appropriate; but this situation will need additional responses such as clinical intervention to improve the care given immediately and a clinical audit of practice. Commissioning or regulatory enforcement action may also be appropriate.
Purpose of the enquiry +
The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. If the local authority decides that another organisation should make the enquiry, for example a care provider, then the local authority should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done.
Involvement of the adult at risk +
What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate. If they lack capacity it should be in their best interests if they are not able to make the decision, and be proportionate to the level of concern.
The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse. If the adult has substantial difficulty in being involved, and where there is no one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement.
Access to the adult at risk +
Practitioners need to make personal contact with the people they are working with and establish a relationship. Therefore the issue of access and ability of the person to talk freely is critical.
The duty to make or to cause adult safeguarding enquiries to be made does not provide for an express legal power of entry or right of unimpeded access to the adult who is subject to such an enquiry. Instead, there are a range of existing legal powers which are available to gain access should this be necessary.
The powers which may be relevant to adult safeguarding situations derive from a variety of sources including the Mental Capacity Act, Mental Health Act and the Police and Criminal Evidence Act, along with the common law including the inherent jurisdiction of the High Court and common law powers of the police to prevent or deal with a breach of the peace.
Whether it is necessary to seek legal intervention and which powers would be the most appropriate to rely on in order to gain access to an adult to assess any safeguarding risk or otherwise protect an adult will always depend on the individual circumstances of the case.
All attempts to resolve the situation should begin with negotiation, persuasion and the building of trust. Denial of access may not necessarily be a sign of wrong-doing or risk; it may be an indication of lack of trust of authority, guilt about their inability to care or fear that they or the adult will be removed from the home.
It is vital that until the facts are established the practitioner adopts an open-minded, non- judgmental approach. If all attempts fail then the local authority must consider whether the refusal to give access is unreasonable and whether the circumstances justify intervention.
There will need to be a local authority-led discussion about what the perceived risks are, the likelihood of risk or neglect occurring and the potential outcomes of both intervening and not intervening. As in any other situation, any decisions and the reasons for them should be clearly and fully recorded and shared with others as necessary and lawful.
If the conclusion is that the use of legal powers is necessary and justifiable, the next step is to consider what powers would be most appropriate.
Recourse to the courts and legal powers should be considered carefully and only as a last resort and legal advice should be taken at the earliest opportunity.
Local authorities must satisfy themselves that there are grounds to seek access and that the use of such powers will not be unlawful or leave an adult in a worse position. Clearly any unlawful intervention could lead not only to judicial criticism but also to liability (whether as a result of a breach of human rights or otherwise).
Who is involved in the enquiry? +
Professionals and other staff need to handle enquiries in a sensitive and skilled way to ensure distress to the adult is minimised. It is likely that many enquiries will require the input and supervision of a social worker, particularly the more complex situations and to support the adult to realise the outcomes they want and to reach a resolution or recovery. For example, where abuse or neglect is suspected within a family or informal relationship it is likely that a social worker will be the most appropriate lead.
Personal and family relationships within community settings can prove both difficult and complex to assess and intervene in. The dynamics of personal relationships can be extremely difficult to judge and rebalance. For example, an adult may make a choice to be in a relationship that causes them emotional distress which outweighs, for them, the unhappiness of not maintaining the relationship.
Whilst work with the adult may frequently require the input of a social worker, other aspects of enquiries may be best undertaken by others with more appropriate skills and knowledge. For example, health professionals should undertake enquiries and treatment plans relating to medicines management or pressure sores.
The role of the police +
Although the local authority has the lead role in making enquiries, where criminal activity is suspected, then the early involvement of the police is likely to have benefits in many cases.
A criminal investigation by the police takes priority over all other enquiries, although a multi-agency approach should be agreed to ensure that the interests and personal wishes of the adult will be considered throughout, even if they do not wish to provide any evidence or support a prosecution.
Outcomes of the enquiry +
Once enquiries are completed, the outcome should be notified to the local authority which should then determine with the adult what, if any, further action is necessary and acceptable.
It is for the local authority to determine the appropriateness of the outcome of the enquiry. One outcome of the enquiry may be the formulation of agreed action for the adult which should be recorded on their care plan. This will be the responsibility of the relevant agencies to implement. In relation to the adult this should set out:
- What steps are to be taken to assure their safety in future
- The provision of any support, treatment or therapy including on-going advocacy
- Any modifications needed in the way services are provided
- How best to support the adult through any action they take to seek justice or redress
- Any on-going risk management strategy as appropriate
- Any action to be taken in relation to the person or organisation that has caused the concern
Further information on Sec 42 enquiries can be accessed here.