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Research and Source information

Background information

Say So draws your attention to the following quotes, results and statistics and provides links to the source material for verification where appropriate.

A study by Hull Safeguarding Adults Board of 74 serious case reviews over a period of 10 years has been used as a source document. Some results of the study are reproduced below and the full report can be read at;

http://safeguardingadultshull.com/articles/A_decade_of_Serious_Case_Reviews/34

The study found that there were 41 recommendations in the SCR’s relating to failures in data collection/sharing of information/reporting of possible abuse. Of these one recommended that attitudes should change with regard to anonymous information being useful for safeguarding purposes. Another that concerns should be raised no matter how low level they may appear. Six recommendations promoted the use of whistleblowing as a means to obtain all possible information concerning the care of the vulnerable.

It was specifically noted that there were numerous recommendations to ‘those funding care placements’ (local authorities/NHS Continuing healthcare funds etc) that they should have robust, proactive processes for ensuring care placements are safe. Some of these recommendations referred to monitoring and sharing all information known about care providers, locations, centres and their safeguarding performance

The following quotes are notable specific recommendations concerning more open reporting and other safeguarding issues

That the Care Home owner should articulate its values and desired professional practices with the welfare of people with dementia and mental disorder at their core. They recruited personnel who did not engage honestly with the concerns of residents, their families, employees, students on placement, the police, the NHS, adult social care or the regulators. They should outline to all commissioners of their services what actions they are taking to ensure that the likelihood of defensive responses to harmful misconduct in all of their services is eliminated’

There should be a condition of employment on all health and social care practitioners (registered and un-registered) to report operational concerns to i) Chief Executive of Hospital Boards or ii) the relevant regulator’

Those involved in funding placements in care homes should be proactive in ensuring that patients are safe’

‘Organisations providing NHS funded care should be required to demonstrate accountability for effective governance to commissioners local adult safeguarding boards’

‘All registered health and social care employers should be required to advise their employers in their contracts to whom they can whistleblow, the response that the employer can anticipate from the employer and what to do if this is not forthcoming’

The (care provider) should understand and demonstrate their commitment to ensuring the safety, health and well-being of residents in their care at all times’

Care home needs a whistleblowing helpline to be developed so confidential calls can be made’

SAPB to ensure that all agencies have arrangements in place that provide fit for purpose supervision and management oversight for staff at all levels’

Statistics

The Annual Safeguarding Report for NHS England for 2015-2016 is the basis for the following information:

Key Findings

· For the 2015-16 reporting year there were 102,970 individuals with enquiries under Section 42 of the Care Act. Of these enquiries, 60 per cent were for females (61,985 enquiries) and 63 per cent of individuals at risk were aged 65 or over (65,085 enquiries).
· For Section 42 enquiries which concluded during the reporting year, there were 124,940 risks recorded by type of risk. Of these, the most common type was neglect and acts of omission, which accounted for 34 per cent of risks, followed by physical abuse with 26 per cent.
· There were 110,095 risks recorded by location of risk in concluded Section 42 enquiries. The location of risk was most frequently the home of the adult at risk (43 per cent of enquiries) or in a care home (36 per cent).

There were 110 Serious Case Reviews within this period where a death or serious injury/condition arises and concerns raised that the provision of care may have contributed.

This means that there were close to 40,000 enquiries in respect of the local authority’s duty under Sec 42 care Act 2014. This section is reproduced below for clarity

Sec 42 Enquiry by local authority
(1)This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)—
(a)has needs for care and support (whether or not the authority is meeting any of those needs),
(b)is experiencing, or is at risk of, abuse or neglect, and
(c)as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.
(2)The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom.
(3)“Abuse” includes financial abuse; and for that purpose “financial abuse” includes—
(a)having money or other property stolen,
(b)being defrauded,
(c)being put under pressure in relation to money or other property, and
(d)having money or other property misused.

The rate of Section 42 enquiries increased with age, with individuals in the 18 to 64 and 65 to 74 age bands being less likely to have a Section 42 enquiry than the England average. Adults aged 75 to 84 were more than three times more likely to have a Section 42 enquiry than the England average, with 730 individuals per 100,000 adults. The 85 and over age group had almost ten times more individuals with Section 42 enquiries than the England rate, with 2,297 per 100,000 adults.

The full report is available on this link:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557866/SAC__1516_report.pdf

Relevant legislation

Employment Rights Act 1996 (as amended)

43B Disclosures qualifying for protection.

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and, tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 

43C Disclosure to employer or other responsible person.

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure F2 ...—

(a) to his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to—

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

47B Protected disclosures.

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority,

on the ground that W has made a protected disclosure.

(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.

(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.

(1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—

(a) from doing that thing, or

(b) from doing anything of that description.

(1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if—

(a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and

(b) it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of subsection (1B).]

(2) This section does not apply where—

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K. 

 

(Part X)  103A Protected disclosure.

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.



Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Regulation 13 Safeguarding service users from abuse and improper treatment

(1) Service users must be protected from abuse and improper treatment in accordance with this regulation.
(2) Systems and processes must be established and operated effectively to prevent abuse of service users.  
(3) Systems and processes must be established and operated effectively to investigate, immediately upon becoming aware of, any allegation or evidence of such abuse.

Regulation 17  Good Governance

(1) Systems or processes must be established and operated effectively to ensure compliance with the requirements in this Part.
(2) Without limiting paragraph (1), such systems or processes must enable the registered person, in particular, to--
(a) assess, monitor and improve the quality and safety of the services provided in the carrying on of the regulated activity (including the quality of the experience of service users in receiving those services);
(b) assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity;
(c) maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided
Section 20 of the Criminal Justice and Courts Act 2015 creates the offence of ill-treatment or neglect by a CARE WORKER.
20(1) It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual.

20(2) An individual guilty of an offence under this section is liable -
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).
20(3) Care worker

means an individual who, as paid work, provides -
(a) health care for an adult or child, other than excluded health care, or
(b) social care for an adult,
including an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care.

20(4) An individual does something as paid work if he or she receives or is entitled to payment for doing it other than -
(a) payment in respect of the individual's reasonable expenses,
(b) payment to which the individual is entitled as a foster parent,
(c) a benefit under social security legislation, or
(d) a payment made under arrangements under section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).
20(5) Health care includes -
(a) all forms of health care provided for individuals, including health care relating to physical health or mental health and health care provided for or in connection with the protection or improvement of public health, and
(b) procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition,
and excluded health care has the meaning given in Schedule 4
20(6) Social care includes:-
all forms of personal care and other practical assistance provided for individuals who are in need of such care or assistance by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or any other similar circumstances.

20(7) References in this section to a person providing health care or social care do not include a person whose provision of such care is merely incidental to the carrying out of other activities by the person.

20(8) In this section -
adult means an individual aged 18 or over;
child means an individual aged under 18;
foster parent means -
(a) a local authority foster parent within the meaning of the Children Act 1989,
(b) a person with whom a child has been placed by a voluntary organisation under section 59(1)(a) of that Act, or
(c) a private foster parent within the meaning of Section 53 of the Safeguarding Vulnerable Groups Act 2006.
20(9) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (2)(b) to 12 months is to be read as a reference to 6 months..

20(10) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (2)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.
Section 21 of the Criminal Justice and Courts Act 2015, creates the offence of ill-treatment or wilful neglect by a CARE PROVIDER.
21(1) A care provider commits an offence if -
(a) an individual employed or otherwise engaged by the care provider ill-treats or wilfully neglects someone to whom they are providing health care or adult social care and to whom the care provider owes a relevant duty of care; and
(b) the way in which the care provider manages or organises its activities amounts to a gross breach of that duty of care; and(c) if that breach had not occurred, the ill-treatment or wilful neglect would not have happened, or would have been less likely to happen.
Notes
(i) A care provider commits an offence if:

  • an individual employed or otherwise engaged by the care provider ill-treats or wilfully neglects someone to whom they are providing health care or adult social care and to whom the care provider owes a relevant duty of care; and
  • the way in which the care provider manages or organises its activities amounts to a gross breach of that duty of care; and
  • if that breach had not occurred, the ill-treatment or wilful neglect would not have happened, or would have been less likely to happen.

Section 23 of the Criminal Justice and Courts Act 2015 provides the penalties for a care provider offence.
23(1) A person guilty of an offence under Section 21 is liable, on conviction on indictment or summary conviction, to a fine.
23(2) A court before which a person is convicted of an offence under section 21 may make either or both of the following orders -
(a) a remedial order;
(b) a publicity order;
(whether instead of or as well as imposing a fine).
23(3) A remedial order is an order requiring the person to take specified steps to remedy one or more of the following -
(a) the breach mentioned in section 21(1)(b) ('the relevant breach');
(b) any matter that appears to the court to have resulted from the relevant breach and to be connected with the ill-treatment or neglect;
(c) any deficiency in the person's policies, systems or practices of which the relevant breach appears to the court to be an indication.
23(4) A publicity order is an order requiring the person to publicise in a specified manner -
(a) the fact that the person has been convicted of the offence;
(b) specified particulars of the offence;
(c) the amount of any fine imposed;
(d) the terms of any remedial order made.
23(5) A remedial order -
(a) may be made only on an application by the prosecution which specifies the terms of the proposed order,
(b) must be made on such terms as the court considers appropriate having regard to any representations made, and any evidence adduced, in relation to its terms by the prosecution or by or on behalf of the person convicted, and
(c) must specify a period within which the steps specified in the order must be taken.
23(6) A publicity order must specify a period within which the requirements specified in the order must be complied with.
23(7) A person who fails to comply with a remedial order or a publicity order commits an offence and is liable, on conviction on indictment or summary conviction, to a fine.
Research quoted by Social Care Institute for Excellence from reports by Holihead, 2000, BSI, 2008, IBE, 2007 has highlighted the advantages for organisations of supporting whistleblowers. Some of the benefits include:

  • protecting staff, people using the service and the public
  • maintaining and protecting the organisation’s reputation
  • deterring wrongdoing
  • minimising risk by picking up potential problems early
  • improving performance and management awareness
  • improving staff morale and reducing turnover
  • demonstrating that the organisation is accountable and well managed
  • reducing the risk of anonymous and malicious leaks
  • minimising costs and compensation from accidents, investigations and litigation.

Link to SCIE for full information:
http://www.scie.org.uk/publications/guides/guide15/whistleblowing/whistleblowingforemployers.asp

Codes of Practice relating to care sector

Code 3 of the Codes of Practice for Social Care Workers appears very relevant and is partly reproduced here:
3. ‘As a social care worker you must promote the independence of service users while protecting them as fare as possible from danger or harm.’
3.2 ‘Using established processes and procedures to challenge and report dangerous, abusive, discriminatory or exploitative behavior and practice.’
3.5 ‘Informing your employer or an appropriate authority where the practice of colleagues may be unsafe or adversely affecting standards of care’.
This link takes to the full codes of practice:
http://www.scie.org.uk/workforce/files/CodesofPracticeforSocialCareWorkers.pdf?res=true

References to websites, documentation or other material information regarding reporting workplace concerns and whistleblowing:

http://www.scie.org.uk/socialcaretv/video-player.asp?v=improving-organisational-practice

https://blueprintforfreespeech.net/document/united-kingdom

http://www.scie.org.uk/publications/guides/guide15/whistleblowing/codesofconduct.asp

Care Quality Commission

The guidance given by the CQC on reporting concerns is clear.

A good service provider will create an atmosphere where workers feel able to report concerns and will thoroughly investigate and address such concerns within the service.

A good whistleblowing policy is an important tool in creating this atmosphere. Having an open culture will help staff to be more confident about raising concerns.

Workers are more likely to raise concerns at an early stage if your policy and procedures are clear and easy to use. It is also easier for you to deal with concerns at an early stage.

Employers who promote whistleblowing are more likely to be seen as better employers by staff and as better service providers by the public.

Your policy and procedure should make it clear to workers that they can go outside their normal line management or accountability arrangements to raise concerns.

They should also make it clear to other people who provide services to you, such as agency workers, that they too can raise concerns and have the protection of PIDA.
Your policy and advice to workers should also make it clear that disclosures – whether made in the workplace or externally to an outside body – that are malicious or knowingly untrue are not protected under PIDA.

If you don’t have a whistleblowing policy, staff may be less confident about reporting concerns promptly. This could mean that:
• Bad practice could continue for longer than necessary.
• There will be more complaints from people who use the service or their representatives.
• Staff may leave or perform less well.
• Your service may receive more negative reports.

Furthermore, if there is no whistleblowing policy, staff are more likely to go to an outside body in order to protect people in vulnerable circumstances. Any subsequent public reporting could result in damage to your reputation that could have been avoided

The following is a link to CQC whistleblowing full guidance:

http://www.cqc.org.uk/sites/default/files/documents/20131107_100495_v5_00_whistleblowing_guidance_for_providers_registered_with_cqc.pdf

Videos

The following links will take you to separate video segments of TV documentaries or 'covert' video footage of abuse by carers of vulnerable people.

SOME OF THE IMAGES ARE DISTURBING - DO NOT WATCH IF YOU FEEL SUCH IMAGES MAY UPSET YOU.

https://www.youtube.com/watch?v=yZnSO1GMPm4

https://www.youtube.com/watch?v=RIJhulQ1LAE

https://www.youtube.com/watch?v=VhsPEHz8f4k

https://www.youtube.com/watch?v=Qy3qg32hKFc

https://www.youtube.com/watch?v=GMopbgM-YkI

https://www.youtube.com/watch?v=tzi8IKlGS4E

https://www.youtube.com/watch?v=7dmjEYK_72k

Media Reports

http://www.dailymail.co.uk/news/article-3196931/Care-worker-jailed-10-years-filming-sexually-abusing-patients-old-101-sending-footage-boyfriend.html