Wales

If a person is barred from engaging in certain ‘regulated activities’ under the Safeguarding Vulnerable Groups Act 2006, including the provision of personal care and other assistance to older or disabled adults, it is a criminal offence for them to undertake such work, or to seek or offer to do it. It is also an offence for a service provider to permit a barred individual from undertaking activities from which they are barred and for an employment agency to provide a barred person to a service provider, in order to work in an activity from which they are barred.

Regulation 12 requires service providers to ensure that policies and procedures are in place about various matters, including safeguarding, the use of control and restraint, whistleblowing, and staff discipline, and that the service is provided in accordance with the these policies and procedures.

Breach of this provision is a criminal offence. The CIW can also take [regulatory action].

The core Regulations on safeguarding are Regulation 26 to 29. Regulation 26 creates an ‘overarching requirement’ on service providers to ‘provide the service in a way which ensures that individuals are safe and are protected from abuse, neglect and improper treatment’.  The Guidance expects staff to receive induction ‘training relevant to their role … to enable them to understand their responsibility to safeguard and protect vulnerable individuals’. This is expected to include training on internal and local safeguarding arrangements, including how to raise a concern. Ongoing training is also expected, ‘at regular intervals in line with local safeguarding recommendations’. The Guidance also makes reference to staff being ‘aware of their individual responsibilities for raising concerns to ensure the safety and well-being of individuals’ (emphasis added). Staff are expected to be able to access up to date safeguarding policies and procedures; and service providers are expected to support staff raising safeguarding concerns.

Breach of Regulation 26 is a criminal offence if the breach results in avoidable physical or psychological harm to an individual receiving care and support, an individual being exposed to a significant risk of such harm, or (in a case of theft, misuse or misappropriation of money or property) any loss of money or property by an individual. The CIW can also take [regulatory action].

Regulation 27 requires service providers to have policies and procedures in place for ‘the prevention of abuse, neglect and improper treatment’ and for responding to allegations or evidence of these. The Guidance expects these policies and procedures to include ‘the individual roles and responsibilities of staff and others working at the service in identifying, receiving and reporting allegations of abuse, neglect or improper treatment’ or suspicions of these. The Guidance is not specific as to what these individual responsibilities are, but expects the policies and procedures to include instructions to staff on the actions they should take and how to refer concerns to the local authority and others.

Breach of Regulation 27 itself is not an offence, but breach of Regulation 12 (a requirement to have various policies and procedures in place, including policies relating to safeguarding) is an offence (see above). Breach of Regulation 26 (the overarching requirements on safeguarding) is also a criminal offence if the breach results in avoidable physical or psychological harm to an individual receiving care and support, an individual being exposed to a significant risk of such harm, or (in a case of theft, misuse or misappropriation of money or property) any loss of money or property by an individual. The CIW can also take [regulatory action].

Under Regulation 28 service providers must have policies and procedures in place about supporting individuals to manage their money. This includes a stipulation that service providers must ‘ensure as so far practicable that persons working at the service do not act as the agent of an individual’ using the service. The Guidance expects that if staff are supporting people to manage their money, this is recorded in the person’s care plan, and that the  service provider policies and procedures on money management indicate how staff who do not support individuals in managing their money are ‘precluded from involvement with their financial affairs’.

Breach of Regulation 28 itself is not an offence, but breach of Regulation 12 (a requirement to have various policies and procedures in place, including policies relating to safeguarding) is an offence (see above). Breach of Regulation 26 (the overarching requirements on safeguarding) is also a criminal offence if the breach results in avoidable physical or psychological harm to an individual receiving care and support, an individual being exposed to a significant risk of such harm, or (in a case of theft, misuse or misappropriation of money or property) any loss of money or property by an individual. The CIW can also take [regulatory action].

Regulation 29 creates detailed duties on service providers in relation to the use of control and restraint. Acts intended to control or restrain an individual are prohibited unless they are necessary to prevent a risk of harm to the individual or someone else and are a proportionate response to that risk. The Regulation stipulates that control and restraint must not be used unless it is carried out by staff who are trained in the method used. The Guidance expects staff to receive ‘behavioural support training’ as part of their induction, to ‘make sure any control or restraint practices are only used proactively and when absolutely necessary, in line with current national guidance’. Staff are also expected to be aware of, understand and follow the policy and procedures on control and restraint, and to be kept up to date on these in line with any changes to guidance and legislation. Both service providers and staff are expected to review the approach to, and use of, control or restraint regularly.

Breach of Regulation 29 itself is not an offence, but breach of Regulation 12 (a requirement to have various policies and procedures in place, including policies relating to safeguarding) is an offence (see above). Breach of Regulation 26 (the overarching requirements on safeguarding) is also a criminal offence if the breach results in avoidable physical or psychological harm to an individual receiving care and support, an individual being exposed to a significant risk of such harm, or (in a case of theft, misuse or misappropriation of money or property) any loss of money or property by an individual. The CIW can also take [regulatory action].

Under Regulation 31, an individual must not be deprived of their liberty for the purpose of providing care and support without lawful authority. The Guidance expects staff to be trained to understand their responsibilities under the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards (now the Liberty Protection Safeguards) at regular intervals in lien with changes to legislation and guidance.

Breach of Regulation 31 itself is not an offence, but breach of Regulation 26 (the overarching requirements on safeguarding) is also a criminal offence if the breach results in avoidable physical or psychological harm to an individual receiving care and support, an individual being exposed to a significant risk of such harm, or (in a case of theft, misuse or misappropriation of money or property) any loss of money or property by an individual. The CIW can also take [regulatory action].

Regulation 13 imposes a ‘duty of candour’ on service providers, which requires them to act in ‘an open and transparent way’. The Guidance expects service providers to have policies and procedures that support ‘a culture of openness and transparency’, and to ensure that all staff are aware of and follow them. They are expected to ‘take action to prevent and appropriately address bullying, victimisation and/or harassment in relation to the duty of candour, and investigate any instances where a board member, responsible individual or member of staff may have obstructed another in exercising their duty of candour’.

Particular duties in relation to the duty of candour also arise from the [requirement on careworkers to register with Social Care Wales] (SCW) (see further below). The Guidance under Regulation 13 expects service providers to ‘identify and deal with possible breaches of the duty of candour by staff who are professionally registered, including the obstruction of another in their professional duty of candour’. This can include a referral to SCW.  A service provider’s policies and procedures are also expected to ‘be in line with, and take account of SCW’s guidance on the professional duty of candour for social care professionals registered with SCW. This guidance advises registered social care workers that they must be ‘open and honest’ when things ‘go wrong’ and indications of what they must do in these situations.

Breach of this provision is not a criminal offence, but the CIW can take [regulatory action].

Social Care Wales, ‘Openness and honesty when things go wrong: the professional duty of candour’ (2017).

In Wales there are specific requirements to include provisions related to safeguarding in disciplinary procedures. Under Regulation 39, service providers are required to have and operate a disciplinary procedure which must include:

(a) provision for the suspension, and the taking of action short of suspension, of an employee, in the interests of the safety or well-being of people using the service;

(b) provision that a failure on the part of an employee to report an incident of abuse, or suspected abuse, to an appropriate person, is grounds on which disciplinary proceedings may be instituted. (Appropriate persons include the service provider, the Care Inspectorate Wales, the local authority, and / or the police).

This effectively places a requirement on careworkers to report any incident of abuse or potential abuse, including when it is instigated not just by a colleague at the same level, but by those higher up the staff hierarchy, such as a manager or nurse; and by others such as a relative or visitor.  The Guidance expects the disciplinary policy and procedure to include information on what constitutes acceptable and unacceptable behaviour, that providers ensure that staff are aware of and understand disciplinary procedures, and that written reports of disciplinary investigations and action should be kept on the employee’s file. If a person leaves employment while disciplinary action is ongoing, the Guidance expects the service provider to consider making a referral to SCW, the police, or the Disclosure and Barring Service.

Breach of Regulation 39 itself is not an offence, but breach of Regulation 12 (a requirement to have various policies and procedures in place, including policies relating to staff discipline) is an offence (see above).

The Regulations also create detailed duties on service providers in relation to whistleblowing. Under Regulation 65, service providers must have ‘arrangements in place to ensure that all persons working at the service (including any person allowed to work as a volunteer) are able to raise concerns about matters that may adversely affect the health, safety or well-being of individuals for whom the service is provided’. These arrangements must include (among other things)

(a) having a whistleblowing policy in place and acting in accordance with that policy, and

(b) establishing arrangements to enable and support people working at the service to raise such concerns.

The Guidance expects staff to be aware of, and to have had training in, how to raise concerns, mechanisms and support to be available to staff to enable them to raise concerns. It advises that ‘wherever practicable’ the service provider should obtain consent to disclose the details of a complaint so that an effective investigation can take place, and that confidentiality is maintained during this process unless this is not possible (for example, where a safeguarding concern has arisen).  The Guidance also expects that individuals do not suffer ‘victimisation or any other disadvantage as a result of making their concerns known.’

In addition to these provisions, under Regulation 82 the ‘responsible individual’ must ensure that the ‘whistleblowing policy is being complied with and that the arrangements to enable and support people working at the service to raise such concerns are being operated effectively’. The responsible individual is a named person with significant influence in the service provider, such as a director). The Guidance to this Regulation states that the responsible individual must ensure that ‘suitable arrangements’ exist for:

·      staff to be aware of and understand the whistleblowing policy;

·      staff to understand there is zero tolerance for poor care or for a failure to safeguard the well-being of individuals;

·      ensuring staff are encouraged and supported to report issues;

·      ensuring staff understand that concerns are welcomed and sought out, not ignored.

Breach of these provisions is not an offence, but breach of Regulation 12 (a requirement to have various policies and procedures in place, including on whistleblowing) is an offence (see above).

Service providers must notify the Care Inspectorate Wales of certain events or matters, including ‘any abuse or allegation of abuse in relation to an individual that involves the service provider and/or a member of staff and/or a volunteer’ and ‘any allegation of misconduct by a member of staff’.

Breach of this provision is a criminal offence.

The safety and well-being of individuals is also protected in Wales by [the requirement on careworkers to

register with SCW]. To register, and to maintain registration, careworkers must demonstrate that they have the character and competence to perform their role, and [follow the SCW Code of Professional Practice for Social Care (‘the Code’)]. The Code creates a number of overall requirements on careworkers, including requirements to:

·      ‘Respect the views and wishes, and promote the rights and interests, of individuals and carers’ (section 1);

·      ‘Promote the well-being, voice and control of individuals and carers while supporting them to stay safe (section 3);

·      ‘Respect the rights of individuals while seeking to ensure that their behaviour does not harm themselves or other people’ (section 4).

The Code contains a number of requirements that relate particularly to safeguarding and whistleblowing. These include statements that registered careworkers must not:

·      directly or indirectly abuse, neglect or harm individuals, carers or colleagues (5.1);

·      exploit individuals, carers or colleagues in any way (5.2);

·      abuse the trust of individuals and carers or the access they have to personal information about them (5.3);

·      form inappropriate personal relationships with individuals, families or carers (5.4);

·      discriminate unlawfully or unjustifiably against individuals or carers, or condone such discrimination by others (5.5 and 5.6);

·      put themselves or others at unnecessary risk (5.7).

Positive actions that registered careworkers are required to take which have a particular relevance to safeguarding include (non-exhaustively) requirements to:

·      Work with individuals and carers to keep individuals safe (3.3);

·      Support individuals and carers to express concerns or make complaints, take complaints seriously and respond to them or pass them to the appropriate person (3.5);

·      use relevant processes and procedures to challenge and report dangerous, abusive, discriminatory or exploitative behaviour and practice (3.7);

·      advise their employer or an appropriate authority if they are concerned that a colleague’s or other professional’s practice may be unsafe or adversely affecting care and support standards (3.8);

·      advise their employer or another appropriate authority of resource or operational difficulties that might get in the way of the delivery of safe social care and support (3.9);

·      work with individuals to balance rights, responsibilities and risks (4.1);

·      follow risk assessment policies and procedures to assess whether the behaviour of individuals presents a risk of harm to themselves or other people (4.2);

·      take necessary steps to minimise the risks of individuals’ behaviour causing actual or potential harm to themselves or other people (4.3);

·      ensuring that relevant colleagues and agencies are informed about the outcomes and implications of risk assessments (4.4);

·      being open and honest with people if things go wrong, including providing a full and prompt explanation of what has happened to their employer or the appropriate authority (6.3);

·      inform their employer or an appropriate authority about any personal difficulties that might affect their ability to do their job ‘competently and safely’ (6.4).

Breach of the Code by a registered care worker may call their [fitness to practise] into question. If so, they may be investigated and sanctioned by [Social Care Wales] under its [fitness to practise proceedings].

Where service providers employ registered careworkers, they must follow the SCW [Code of Practice for Social Care Employers] (‘the Employer Code’).

Breach of this provision is not an offence, but the CIW can take [regulatory action].

The Employer Code includes an overall requirement on employers to ‘[h]ave policies and systems to protect people from damaging or dangerous situations, behaviour and practice’. This contains specific requirements on social care providers to:

·      Put in place policies and procedures to investigate and deal adequately with disciplinary matters, including where the worker leaves the organisation (4.3);

·      Make it clear to workers that bullying, harassment or any form of discrimination is not acceptable and take action to deal with such behaviour (4.4);

·      Have procedures for workers to report dangerous, discriminatory, or abusive behaviour and practice and deal promptly, effectively and openly with reports (4.5);

·      Make it clear to workers, individuals and carers that violence, threats or abuse are not acceptable. This includes having clear policies and procedures for reducing the risk of violence and managing violent incidents (4.6);

·      Provide support to workers whose fitness to practise may be impaired and give clear guidance about any limits on their work while they are receiving support, making sure that the care and safety of individuals using services is the priority (4.8).

The Employer Code also contains specific requirements on employers to:

·      Put in place and monitor policies and procedures to respond to allegations of harm, neglect or abuse, including ensuring that workers have knowledge about signs of harm, neglect or abuse and know the action they should take (2.3);

·      Have effective arrangements for the management and supervision of workers to promote best practice and good conduct and support workers to improve their performance, including making sure workers are fit to practise (2.5);

·      Have policies and systems in place for workers to raise concerns about any matter which might have a negative effect on the delivery of safe and dignified care and support and take adequate action to respond to concerns (2.7);

·      Have a culture and systems in place to support all workers to be open and honest if things go wrong, to report adverse incidents and to learn from mistakes. This includes an expectation that workers are supported to meet their professional ‘duty of candour’ (2.8);

·      Respond appropriately to workers who need support because they do not feel able or adequately prepared to carry out their work (3.4);

·      Make individuals and carers aware of the Codes of Practice for employers and social care workers and inform them how to raise issues relating to the Codes, including how to contact SCW (5.4).

There are also various requirements relating to the recruitment of social care workers to ensure that ‘those seeking to enter the workforce are suitable and that they understand their roles and responsibilities’ (section 1).

SCW has also created practice guidance in certain areas of work, including domiciliary care work. This is intended to support careworkers in meeting the standards in the Code. This guidance includes a sections on safeguarding, which advises that ‘[o]ne of the most important principles of safeguarding is that it is everyone’s responsibility. …Domiciliary care workers have an important role to play and need to know how to respond to a range of potential risks: neglect, abuse, domestic violence, financial exploitation, bullying’. Domiciliary careworkers are expected report safeguarding concerns and to be familiar with:

a. the factors that may lead to harm or abuse

b. the signs of potential harm or abuse

c. your organisation’s procedures

d. your professional responsibility

Under this practice guidance, domiciliary careworkers are expected to inform their manager or employer if they have any concerns about: ineffective policies or procedure or gaps in these, available resources, work overload, the safety of themselves or others; equipment, team skills, poor practice, breaches of the law, or breaches of the Code of Professional Practice. If the manager / employer doesn’t take ‘adequate action’ the worker should seek independent advice from an organisation such as the CIW, Social Care Wales, or their Trade Union, and ‘record [their] concerns and the steps taken to try and resolve them’.