4.4 Stage 4: Section 42 Enquiry

1. Purpose of the Enquiry

The purpose of a Care Act s42 adult safeguarding enquiry is to enable the local authority to decide whether any action is required in the adult’s case, and if so, what and by whom. The enquiry should be focused on the specific concerns agreed as requiring investigation at the planning meeting / discussion phase.

In addition there are responsibilities to identify and manage risk to ensure the safety of the individual and others. It should seek to clarify the views of the adult, enable a mental capacity assessment to be carried out (regarding the decision to investigate) if required (see Mental Capacity chapter) and instruct an IMCA or Independent Advocate if that is indicated (see Independent Mental Capacity Advocate Service and Independent Advocacy).

“I am asked what outcomes I want and these directly inform what happens.”

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.

2. Contributing to other Lines of Enquiry

The safeguarding enquiry may be informed by other enquiries, for example serious Incident enquiries or disciplinary investigations or contribute to other lines of enquiry (see below). In using information obtained from other enquiry processes, the enquiry lead will assure themselves that any other enquiry undertaken has been robust.

The enquiry may also contribute to:

• a coroner’s investigation;
• a police prosecution;
• identifying powers to protect the adult at risk, for example, a restraining order;
• actions under civil law, for example, an injunction;
• disciplinary proceedings;
• inspections by the Care Quality Commission;
• referrals to:
  • the Disclosure and Barring Service;
  • the Care Quality Commission in relation to a regulated service (if this has not already happened when the alert was initially raised);
  • clinical or social care commissioners of the service in relation to breach of contracts;
  • a social or private landlord in relation to a breach of a tenancy agreement;
  • a community care assessment or assessment under the Care Programme Approach;
  • professional regulators for example the Social Work England,  Nursing and Midwifery Council, the Health and Care Professions Council, Social Work England and the General Medical Council;
• a clinical assessment.

3. Standard of Proof

For civil, disciplinary or regulatory enquiries the standard of proof is based on the balance of probability.

Adult safeguarding enquiries are only required to decide their outcome on the balance of probability. Similarly, any disciplinary panel convened following an enquiry against a member of staff is only required to decide their outcome on the balance of probability.

The standard of proof for a criminal prosecution is higher as the case has to be proved beyond all reasonable doubt.

For cases to be taken to Court, the Crown Prosecution Service must be satisfied that:

1. the case is in the public interest; and
2. it is likely to be proven beyond all reasonable doubt.

4. Who should carry out an Enquiry?

The local authority cannot delegate its duty to conduct a formal s42 enquiry, but it can cause others to make enquiries. This means that the local authority may ask a provider or partner agency to conduct its own enquiries, and report these back to the local authority in order to inform the local authority decision about whether and what action is required in the adult’s case.

Where a crime has or may have been committed the police are responsible for conducting a criminal investigation.

While the local authority has overall responsibility and the duty to conduct enquiries, this does not absolve other agencies of safeguarding responsibilities. Relevant partner agencies involved in providing services to adults who may have care and support needs have a legal duty to cooperate in formal adult safeguarding enquiries, unless doing so is incompatible with their own duties or would have an adverse effect on their own functions. This includes sharing information to enable the enquiry to be made thoroughly, participating in the enquiry planning processes, and undertaking enquiries when they have been ‘caused’ by the local authority to do so.

Enquiries will be carried out using the multi-agency procedures, led by an enquiry lead, appointed at a planning meeting / discussion.

Enquiries caused to be made by the local authority will be carried out by the corresponding provider. The locality team will inform the providers when they are to be the enquiry lead.

Enquiries caused to be made will be carried out by a senior member of staff within the provider’s service. The member of staff appointed by the provider to undertake this task must be considered by the provider to be in possession of the requisite knowledge, skills and competence to be able to undertake such an enquiry.

Completed enquiries should be returned to the appropriate locality team by the provider or partner agency for quality assurance and sign off. The locality team senior will ensure all documentation is uploaded into Liquid Logic, and a case note advising is recorded. The timescales set out in this document, will apply to providers / partner agencies undertaking an enquiry.

5. Roles and Responsibilities

5.1 Adults Safeguarding Coordinator (locality team senior practitioner)

This is the senior practitioner within adult social care locality team. The Safeguarding Coordinator has the responsibility for providing robust management oversight of the safeguarding responses within the locality teams. The role includes:

• deciding whether the safeguarding adults procedure should be followed;
• making a decision as to who leads the enquiry that is enquiries made by Trafford Council or instigated by Trafford Council;
• overseeing the actions of the safeguarding enquiry lead;
• overseeing the actions of other agencies/individuals carrying out enquiries instigated by Trafford Council;
• chairing meetings where required;
• ensuring records are kept and outcomes recorded in line with local systems;
• signing off safeguarding case closures.

5.2 Safeguarding Enquiry Lead

(For Trafford Council, this is the allocated social worker.)

There may be a need for a number of people to undertake enquiry activities in response to a safeguarding concern or allegation, such as the police, complaints staff, serious incident investigators, or people undertaking disciplinary investigations.

It will be the responsibility of the Safeguarding Enquiry Lead to draw together information from their own enquiries and from those of others as appropriate, to establish whether any actions are required to prevent abuse or neglect.  These findings will be collated in a written report, and will be used to support the assessment of risk and development of a safeguarding plan.

The Safeguarding Enquiry Lead will be a nominated person from Trafford Council’s social care locality team or, where agreed, a designated individual from another agency for example service provider manager, housing officers etc.

The role includes:

• establishing the facts;
• ascertaining the adult’s views and wishes;
• plan the enquiry (this may involve a planning meeting/discussion to involve other agencies);
• assessing the needs of the adult for protection, support and redress and how they might be met;
• evaluate the enquiry outcome (this may involve organising an evaluation / outcomes meeting to involve other agencies);
• establishing a protection from the abuse and neglect, in accordance with the wishes of the adult;
• making decisions as to what follow up action should be taken with regard to the person or organisation responsible for the abuse or neglect;
• enable the adult to achieve resolution and recovery.

The first priority should always be to ensure the safety and wellbeing of the adult.

If there is a criminal investigation, the police will be the lead organisation and any other investigations must be coordinated with them.

The enquiry lead can complete the templates found at the end of this chapter (see Related Documents) relevant to the case. These are a useful guide to the format of the enquiry. The Safeguarding Enquiry Outcome Report Template must be used. The account template must be used where staff or others are requested to provide an account of events. The Report Template must be used where an external professional or other party is asked to attend a meeting relating to the enquiry and is unable to do so.

5.3 The provider / partner agency enquiry lead

An enquiry lead will be identified by the provider / partner agency from within the resources available to them. The provider / partner agency may wish to appoint an Independent enquiry lead at non-reimbursable cost to them.

The enquiry lead must not be implicated in harm, abuse, exploitation or neglect of an adult. Wherever possible, they should also not be the immediate line manager of the person alleged to have caused harm, exploitation, neglect or abuse, if they are an employee.

Any enquiry lead appointed by the provider / partner agency should be a suitably qualified or an experienced member of staff.

The enquiry lead can use the templates contained within these procedures, these are a useful guide which supports the completion of the enquiry report. The account template can be used where staff or others are requested to provide an account of events (see Related Documents).

6. Responsibilities to the Adult during the Enquiry

Whether or not the adult has mental capacity, they should be the first person to be interviewed to establish what has occurred and what they want to happen. The interview should:

• address any communication needs;
• identify and take into account any equality issues;
• agree an interim protection plan with the adult and ensure they know them and how they will be supported and kept informed during the enquiry, including having an appropriate independent advocate;
• review the risk assessment and protection plan with the adult if they have mental capacity.

Whether the person has mental capacity or not, they must be involved in the process as far as possible.

Where there is reason to doubt presumed capacity, a mental capacity assessment must be completed and the best interest process followed (see Best Interests). It may be necessary to involve an IMCA at this point, if this has not already happened.

• Discuss issues of confidentiality and information sharing with the adult and if there are no others at risk of or experiencing abuse or neglect, get permission to share information with other organisations as required. If there are others at risk, inform the adult of the duty to share information to protect others.
• If during the enquiry it becomes clear that the situation indicates domestic abuse and there is a high risk of harm (following completion of the CAADA DASH), a referral should be made to MARAC (see Multi-Agency Risk Assessment Conferences).
• If the adult does not have mental capacity to make decisions about their safety, the enquiry lead must continue to involve them. They must also consult with their personal representative, a court-appointed deputy or attorney, if they are not implicated in the allegation and/or an IMCA or Independent Advocate if one has been instructed.
• If the enquiry is likely to be prolonged, another planning meeting must be considered to ensure that the interim protection plan is providing adequate safeguards for the adult (and other individuals at risk if necessary).
• If the enquiry reveals that a child or young person could be at risk, MARAT should be contacted immediately (see Contact).

7. Undertaking the Enquiry

The process of undertaking enquiries should be tailored to the individual needs and circumstances of the adult. It should be proportionate to the level of risk involved, and take account of the adult’s ability and capacity to make decisions for themselves. All enquiries undertaken must be lawful and take full account of the consent and wishes of the adult.

Enquiries will follow the model outlined in the diagram on the page below, and will generally move between planning, enquiry and evaluation phases. Enquiries will need to be flexible and be able to move fluidly between planning, enquiry, and evaluation as the circumstances of the case require.

The Adult Safeguarding Coordinator (locality team senior practitioner) is responsible for identifying the appropriate individual safeguarding enquiry lead to undertake the enquiry.

Once the decision has been reached to undertake an enquiry, or cause one to occur by another agency, it will be necessary for the Safeguarding Enquiry Lead to ensure the adult with care and support needs (and/or their advocate where appropriate) is engaged at the earliest opportunity. This will ensure the safeguarding enquiry is directly informed by the views and outcomes of the adult with care and support needs. Enquiries should:

• usually start with asking the adult their views and wishes, and what should happen next;
• keep the adult and their wishes at the centre of the safeguarding process;
• support people to stay in control of what happens in their life, and focus on improving the adult’s wellbeing;
• provide a framework to enable agencies and people to work together;
• be flexible and move fluidly between planning, enquiry and evaluation as needed;
• be timely but move at the pace that is right for the adult;
• be a series of conversations supported by a process- conversations that ask people how we can respond in a way that enhances involvement, choice and control;
• be lawful and be proportionate to the level of risk involved;
• the examination of documentary evidence such as clinical records, social care records, police records, care home files, accident reports, incident reports, daily logs, accounts;
• interviews with the adult at risk, any witnesses, and the person alleged to have caused harm and others who can provide relevant information;
• assessing relevant information provided by relevant agencies;
• consider any learning observed, identified or obtained during the enquiry phase;
• be conducted without pre-judging its outcome.;
• be undertaken objectively, based upon the establishment of facts;
• always be sufficiently thorough to ensure a balanced perspective is obtained in relation to the incident occurring (or alleged to have occurred);
• the adult should have the opportunity to give their account of what has happened to them;
• wherever practicable a person alleged to have caused harm should be enabled to respond to allegations and the enquiry findings in respect to their actions / conduct. However, there will need to be consideration as to the timing that a person is informed, so as not to prejudice any enquiry required or place any person at risk;
• the adult and a ‘person alleged to have caused harm’ are entitled to have an appropriate person accompany them to provide them with emotional support during any interview arranged, this should be agreed prior to any interview taking place with the enquiry lead.

Trafford Adult Safeguarding Procedures: Planning and Undertaking s42 Enquiries

8. Initial Action and Decision Making

INITIAL ACTION AND DECISION MAKING UNDER SECTION 42

Action: Establish the adult is safe Establish the need for advocacy Establish consent and capacity to make relevant decisions by understanding the management of risk, what a safeguarding enquiry is, how they might protect themselves Is the adult aware of the safeguarding concern, and do they perceive it as a concern and want action/support Is there suspicion that a crime may have been committed and a report to the police needed The adult’s desired outcome is established Provide feedback to the person making the referral Record all actions and conversations

Decisions: Who is best placed to speak with the adult Are there any reasons to delay speaking with the adult What the safeguarding enquiry might consist of Whether to proceed without consent What follow-up actions may be needed Whether actions so far have completed the enquiry

9. Historic Allegations of Abuse or where the Adult is no Longer at Risk or Experiencing Abuse of Neglect

One of the criteria for undertaking a statutory enquiry is that the adult is experiencing, or is at risk of, abuse or neglect. Therefore, the duty to make enquiry under the Care Act relates to abuse or neglect, or a risk of abuse or neglect, that is current. Concerns relating to historic abuse or neglect where the person is no longer at risk will not be the subject of statutory enquiry under these procedures, but further action under different processes may be needed.

All such historic concerns will be considered to determine whether they demonstrate a potential current risk of harm to other adults and also whether they require criminal or other enquiry through parallel processes (for example complaints, inquests, regulatory, commissioning, health and safety investigations).

Where an adult safeguarding concern is received for an adult who has died the same considerations will apply and an enquiry will only be made where there is a clear belief that other identifiable adults are experiencing, or are at risk of, abuse or neglect.

In cases where an adult has died or suffered serious abuse or neglect, and where there is concern that agencies should have worked more effectively to safeguard the adult, there is a statutory requirement for the Safeguarding Adults Board to undertake a Safeguarding Adults Review (see Safeguarding Adults Reviews).

10. Causing Enquiries by Others

Trafford Council have the lead role for undertaking enquiries. It may however require other partners (including managers of Council run service provision) to undertake specific enquiries (that is, cause enquiries to be made) under s42 of the Care Act 2014.

It should be noted that whilst Trafford Council can cause an enquiry to be undertaken by individuals / organisations, it cannot delegate this function in its entirety. The overall decision making, or the need to ensure the enquiries and actions have been undertaken, remains with the Council.

The locality team Adults Safeguarding Coordinator must be satisfied that the enquiry has been concluded effectively and determine if further enquiries need to be undertaken.

The two categories of safeguarding enquiry types which include enquiries made by Trafford MBC and enquiries caused to be undertaken by Trafford MBC, are assigned into two distinctive trays in the Council’s locality team LAS system. Council staff should note the following:

• Tray one referred to as Ns42 Enquiry (where ‘N’ is the initial of the corresponding team area) and contains safeguarding enquiries made by Trafford.
• Tray two referred to as Ns42 Caused Enquiry contains safeguarding enquiries caused by Trafford MBC (where N is the initial of the team area).

Both trays are managed daily by the locality team ASC. However, the Caused Enquiry tray is daily monitored by the locality team Adult Safeguarding Coordinator and the social worker on duty, to ensure the enquiry reports are received from the provider agencies on time.

The locality team’s Adult Safeguarding Coordinator (in the absence of a planning meeting) ensures that when a decision is made to cause an enquiry to occur, it is referred to the right place and is acted upon. This will include:

• clearly communicating the request to complete an enquiry to an accountable person in the organisation;
• confirming the legal context of the request, the statutory nature of the duty to cooperate and the duty of candour under the Care Act 2014 (see Letter to Providers in Local Forms, Leaflets, Letters);
• agreeing upon the timescale within which the enquiry should be completed;
• agreeing upon the actions that should be undertaken including signing off the action plan.
• confirming how the enquiry outcome would feedback to the Council (for example by written report, verbal account, or meeting) and to whom.

When a locality team’s Adult Safeguarding Coordinator cause enquiries to occur by individuals / organisations external to the Council, they will demonstrate that they have effectively discharged the Council’s duties by undertaking the following steps:

• ensuring the enquiries have taken place in accordance with the agreed enquiry plan and expressed outcomes of the adult / representative (where required);
• ensuring agreed actions have concluded or systems are in place to ensure they will occur – an example of this will be to seek evidence that referrals have been made to the Disclosure and Barring Service when required;
• considering if additional enquiries or actions are required by the Council in accordance with its statutory duties.

The Adult Safeguarding Coordinator will reserve the right to challenge the body making the enquiry if it considers that the process and / or outcomes are unsatisfactory.

When causing enquiries by other agencies, the Adult Safeguarding Coordinator will use the Causing an Enquiry Letter” which can be found in Local Forms, Leaflets, Letters.

11. Timescales

Unless the situation was regarded as so urgent that it was decided to conduct an immediate enquiry, the enquiry lead will make contact with the adult at risk and begin the enquiry immediately following the planning meeting or discussion (where this is appropriate).

The enquiry should be implemented without delay and should aim to be completed within 20 working days of the referral being made.

If for any reason the enquiry cannot be completed within the timescales, a revised agreement about timescales and any necessary action/s to be taken must be reached with the enquiry lead and other relevant organisations and recorded.

12. The Enquiry Lead’s Report

The report should be based upon the facts established within the enquiry.

Any opinions expressed within the report should be referenced as such.

The enquiry report should be focused on the experience of the adult at risk, whether the person has experienced abuse and what actions can safeguard them from future harm. Ascertain the adult’s views and wishes.

If any person could not be interviewed or if certain records could not be accessed, the enquiry report should record this along with the reasons why.

The report should evidence how conclusions or recommendations have been reached.

Personally identifiable information concerning the adult, the person alleged to have caused harm or any other parties should be kept to the minimum necessary for the purposes of the report.

13. Sharing of the Enquiry Outcome Report

Information sharing between organisations is essential to safeguard adults at risk of abuse or neglect. Decisions about what information is shared and with whom will be taken on a case by case basis. Whether information is shared with or without the adult’s consent, the information shared should be:

• necessary for the purpose for which it is being shared;
• shared only with those who have a need for it;
• be accurate and up to date;
• be shared in a timely fashion;
• be shared accurately;
• be shared securely.

See also Information Sharing and Confidentiality.

The following factors should be taken into account:

• people contributing to the enquiry should be informed as to the process being followed and how the information shared by them will be used;
• in exceptional circumstances a person’s details may be removed from the circulated report, where:
  • there is an identified risk to a person being identified within a report, or a person withholds consent for their name / initials to be included within a report and it is not necessary for the purposes of the safeguarding process to act contrary to their wishes;
  • more than one version of a report may be required in some circumstances to ensure that personal information relating to one adult is not shared with another, or with the person alleged to have caused harm, without consent;
  • in order to ensure that any criminal investigation or prosecution process is not compromised, permission should be sought from the police before including information shared by them within reports;
• Consult information sharing leads for the organisations and / or information sharing guidance where required

There are some key partner agencies and individuals that should always be notified of concerns, and be involved where appropriate, in the following circumstances-

Notifying key partner agencies/individuals

Where it is suspected that a crime has been or might be committed	Police
Where quality and safety concerns arise about a service registered under the Health and Social Care Act 2008.	Care Quality Commission Local Authority Contract and Commissioning service Integrated Care Board if there is a health funded contract
Where quality and safety concerns arise about a NHS service or an Independent hospital	Care Quality Commission Local Authority Contract and Commissioning service Integrated Care Board if there is a health funded contract
Where disciplinary issues are involved	Manager of relevant agency
Where there has been a sudden or suspicious death	The local Coroner’s office
Concern occurred in a health / social care setting, and involved unsafe equipment or systems of work	Health and Safety Executive (HSE)

14. Criminal Investigation

When information arises as part of a safeguarding enquiry which indicates that criminal investigation is required, the safeguarding enquiry lead within the locality team should consult with the police on the same day they became aware of the potential crime. This will ensure that the subsequent criminal investigation can be coordinated in a timely manner that will prevent additional criminal acts against the person and enhance the likelihood of successful prosecutions.

The police may require additional information to be gathered before they can make a final decision about whether a criminal investigation will be necessary. When this is requested the enquiry lead (social worker) should ensure they clearly capture the additional enquiries being requested, the time line for completing such enquiries and when they should be fed back to the police.

This information must be recorded on LAS and should include information about how risks will be managed in the interim period.

It should be noted that criminal investigations by the police take priority over all other enquiries that are being considered. Where there is concern about the safety of a person with care and support needs, the enquiry lead should liaise with the police about what actions to take so as to ensure the adult is protected and the police investigation is not jeopardised.

The welfare of the adult and others, including children, is of paramount importance and requires continued risk assessment to ensure the outcome is in their best interests and enhances their wellbeing.

During the course of a criminal investigation the safeguarding enquiry lead will retain the lead role for coordinating the multi-agency approach to ensure that the wellbeing and wishes of the adult will be considered throughout, especially when they do not wish to provide any evidence or support a prosecution.

15. Risk Management Response (Other Safeguarding)

Where the criteria for an enquiry under s42 of the Care Act 2014 are not met, but additional actions have been identified to address the concerns, a risk management response should be progressed by the relevant individual / team /organisation. Risk management response is an alternative response to a formal enquiry.

Example of ‘other safeguarding cases may include circumstances where:

• the adult is at risk of abuse or neglect but does not have care and support needs;
• the adult has care and support needs, may have experienced abuse or neglect in the past, but is no longer experiencing or is at risk of abuse or neglect;
• the adult has care and support needs, is at risk of abuse or neglect, but is able to protect themselves from abuse or neglect should they choose to;

In such circumstances the lead agency will consider what other action, or provision of advice/information, is required to respond to the concern.

Remember: adult safeguarding in its wider sense means protecting an adult’s right to live in safety, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse and neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feeling and beliefs in deciding on any action.

Viewed in this way, even when the criteria for statutory adult safeguarding enquiry is not met, effective safeguarding can happen within other different processes and services, for example:

• people can be supported to live safely through good quality assessment and support planning;
• people’s right to live free from crime can be supported through police interventions, and to recover from the experience of crime through victim support services;
• people’s health and wellbeing, and experience of safe services, can be promoted through patient safety approaches in the NHS and good quality responses under clinical governance processes.

15.1 Possible other safeguarding actions

Below are some actions to consider when dealing with concerns that do not meet the safeguarding threshold:

Good Practice Guide – other types of advice / action or information

Referral for a needs assessment under s9 of the Care Act An unscheduled review of the person’s care and support needs Referral for a carer’s assessment (including an assessment for young carers) under s10 of the Care Act Referral for an assessment under Deprivation of Liberty Safeguards (MCA, 2005) Referral for an assessment under the Mental Health Act 1983 Referral for other community services such as Occupational Therapy Referral to other risk management processes, e.g. MARAC, MAPPA, PREVENT, etc Referral or signposting to other agencies or support services, e.g. Police, Victim Support, GP, counselling services, domestic abuse services etc Written information and advice on how to keep safe, or how to raise a concern in the future Information on how to make a formal complaint, for example, about substandard care or treatment Information sharing with regulatory agencies (e.g. CQC) and commissioners to address service quality concerns Request to the service provider to undertake appropriate internal responses e.g. internal investigation, training, disciplinary process, audit and assurance activity Referral for a Safeguarding Adult Review or Lessons learnt exercise commissioned by the Safeguarding Adult Board (Care Act s44) Actions taken, or information and advice provided, should aim to promote the adult’s wellbeing, prevent harm and reduce the risk of abuse or neglect, and promote an approach that concentrates on improving life for the adults concerned, including enabling the adult to achieve resolution and recovery.

The actual response taken will need to consider the desired outcomes of the adult with care and support needs, the nature of the assessed risk to the individual and / or others, and the ability of the response to promote the individual’s wellbeing.

If any of the above actions are being undertaken and it becomes clear that the conditions for a s42 Enquiry are met, then an appropriate referral should be made immediately so that safeguarding enquiry can be conducted either instead of or alongside the action already being taken.

Information should be recorded by the safeguarding enquiry lead on Liquid Logic Adult System (LAS) that is associated with the specific response.

A risk management response can be used for circumstances that meet s42 of the Care Act, but do not require a formal safeguarding adults enquiry. To ensure compliance with paragraph 6.54-6.57 of the Care Act statutory guidance, Trafford Council will always carry out a s42 enquiry, or cause one to be made, when the conditions of s42 are met.

15.2 Recording Other Safeguarding Enquiry on LAS

The Council is required to report on the statistics for risk management responses (referred to in this procedure as Other Safeguarding Enquiry). Other Safeguarding Enquiries dealt with at the Front Door level and at the locality team level should be recorded appropriately into LAS. The recording process on LAS is as follows:

1. Open an episode within which is a section; ‘Set type of enquiry’ as shown below;
2. In the options below, select ‘other Safeguarding enquiry’;
3. Close the episode without progressing to the full safeguarding process.

NB: Please do not use the Safeguarding Concern option

Related Documents

See Local Forms, Leaflets, Letters

Evaluation / Outcome Meeting Report

Safeguarding Enquiry Outcome Report