Key points for consideration when completing s126 enquiries Social services and Well-being Act (Wales) 2014

The following should be recognised:

Person-centred enquiries

All enquiries should be person-centred. This means:

• Talking to and engaging with the adult at risk at each stage of the process, unless there are exceptional circumstances that would increase the risk of abuse or neglect. Meaningful engagement is achieved by:
  • explaining the purpose of the enquiries to the adult at risk, using appropriate communication methods, to establish their concerns;
• ensuring the adult of risk is aware of their right to have an independent advocate to ensure their views and wishes are represented throughout the process.
• Enabling the adult at risk to control decisions they have the capacity to make for themselves and ensuring safeguarding actions reflect the nature and seriousness of the risk.
• Empowering the adult at risk to determine how risks are managed and ensuring decision-making takes account of what they want to happen and the personal outcomes they wish to achieve.
• Offering reassurance without making unrealistic promises.

For example, ‘we will find ways of keeping you safe and getting you the care you need but we cannot guarantee that your son will not be prosecuted for wilful neglect’.

It is a legal duty to consider a person’s need for advocacy and to provide appropriate support to enable people to participate. This may be through professional advocacy or informal advocates such as family members/carers.

(Advocacy Code of Practice: Part 10 Social Services and Well-being Act (Wales) 2014)

The individual, their representatives, family or carer should be seen and told the detail of the concerns and the ways in which they are going to be managed during the enquiry process.

It is vital that any formal enquiry or investigation is and appears to be fair and objective to all concerned.

Pointers for Practice: Person-Centred Safeguarding

Pointers for Practice: Working with The Adult at risk During Enquiries into Abuse and Neglect

Pointers for Practice: Risk Assessment and a Person-Centred Approach

Pointers for Practice: Eliciting Information During the Screening and Initial Evaluation - The Challenges

Mental Capacity

The Mental Capacity Act 2005 Section 1 sets out five statutory principles that underpin the legal requirements in the Act. These are:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.
4. An act done or a decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made in his or her best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

All safeguarding considerations and decisions should take into account the legal requirements of the Mental Capacity Act and associated Code of Practice.

The focus should be on the reduction of abuse or neglect. It should not however limit the action that may be required to protect others who are at risk of harm.

The principle of the assumption of capacity does not exempt professionals from conducting robust assessments and asking challenging and searching questions about people who are making choices that are problematic or manifestly not good for their well-being.

Considerations of mental capacity:

• Should be time and decision specific;
• Should maximise engagement in the enquiry process. For example, provide assistance with communication, talk to the adult at risk at a time when they are best able to make a decision for themselves;
• Should result in decisions that are in the best interests of the adult at risk who lacks mental capacity;
• Should be the least restrictive option to meet care, support and protection needs.

Pointers for Practice: Assessing Mental Capacity

Pointers for Practice: Promoting Participation Amongst Adults at Risk with and Without Mental Capacity

Enquiries under s126 of the Social services and Well-being Act (Wales) and Police Investigations

Under s.126 of the Social Services and Well-being Act (Wales), Social services has the lead role in making enquiries into cases of abuse or neglect to an adult at risk, where criminal activity is suspected, the early involvement of the police is essential to clarify whether a criminal investigation may be appropriate.

Where a police investigation is being considered, a strategy discussion/meeting should be the forum for deciding what action should be taken by whom and by when. Such a meeting may be held virtually if urgency demands.

A criminal investigation by the police takes priority over all other enquiries, although it may run concurrently with them. (See local protocols as to how these investigations operate alongside internal disciplinary hearings).

A multi-agency approach should be agreed to ensure that the interests and personal wishes of the adult at risk are considered throughout, even if they do not wish to provide any evidence or support a prosecution.

The welfare of the adult at risk and others, including children, is paramount and requires continued risk assessment.

Identifying Care and Support Needs

At any point in the enquiries an assessment of an adult’s or carer’s needs for care and support under section 19 or 24 of the Social Services and Well-being Act (Wales) 2014 Act can be initiated, if not already started earlier in the process. The enquiries can assess risks as well as the individual’s wider care and support needs.

Section 54 of the Social Services and Well-being Act (Wales) 2014 provides that social services must prepare and maintain a care and support plan for a person under section 35 and 37. This includes needs which social services considers necessary to meet to protect an adult from abuse or neglect or at risk of abuse or neglect. The conclusions of any enquiries made, when an adult is suspected to be an adult at risk, must be recorded in the care and support plan.

Where an adult at risk has refused a care and support plan the findings of enquiries should be recorded in the individual case record. The record should be accessible so that any future reports can cross refer to the enquiry.

Pointers for Practice: Care and Support or Care and Support, Protection Needs?

Timescales

Enquiries should not be rushed, but timescales should be set. When necessary initial immediate action should be taken to protect an adult at risk. Enquiries should normally be completed within 7 working days from receiving the report.

If an enquiry takes longer than 7 working days, the reasons should be recorded.

An outcome of the enquiries may be that the adult at risk requires protection and a strategy meeting/discussion should be held. It is not necessary, however, to wait the full 7 working days, until the enquiries are complete, if the need for a strategy meeting/discussion is identified earlier.

Actions following the Death of an Adult at risk during s.126 Enquiries

Should an adult at risk die during s.126 Social Services and Well-being Act (Wales) 2014 enquiries the following should be considered:

• Was the death attributed to abuse and/or neglect?
• Was the death associated with an inadequate care and support plan?
• Did poor multi-agency working contribute?
• Were the actions leading to abuse or neglect intended and did they lead to the death? (This is for the police to decide)
• Are there indications of gross negligence and/or recklessness on the part of a practitioner?
• Was unsafe equipment or systems of work a contributory factor?
• Was the death related to natural causes and the adult protection process should cease in relation to the adult at risk?
• Are there other practice issues that need to be considered outside of the adult at risk process?

Following the death, the responses to these questions may indicate more than one investigation into the circumstances may be necessary.

A strategy meeting/discussion of the relevant organisations should be convened to agree a coordinated investigation. All organisations must co-operate in the agreed process as part of their duty to co-operate.

Any police investigation will take priority particularly if abuse or neglect is suspected to be a contributory factor (i.e. it is thought that the death was not a natural one).

Consideration should always be given as to whether to refer to the Regional Safeguarding Board for an adult practice review.

The adult at risk moves during s.126 Social services and Well-being Act (Wales) 2014 enquiries

When this occurs the lead social services practitioner should:

• ascertain the location of the adult at risk;
• notify the new Local Authority by telephone and confirm in writing requesting a case transfer if necessary;
• provide details about the concerns regarding abuse and/or neglect, actions taken to date and what remains to be done;
• send fully documented and relevant information;
• advise any other organisations that have been involved in the s.126 enquiries of the move.

The social services department where the adult at risk is now located will need to agree to the case transfer and future actions;

If an adult at risk moves to a residential or nursing home outside the Local Authority, and the Local Authority retains financial responsibility, it should liaise with the host authority.