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England - Safeguards & Protecting the Individual

Individuals with severe learning disabilities and challenging behaviour are vulnerable to abuse. Abuse can take many forms, from the more obvious e.g. physical abuse, to the less obvious e.g. financial or emotional abuse. The risks are increased because:

They are likely to have poor communication skills
Their behaviours are challenging
They are likely to be dependant on others for day-to-day support

It is essential therefore that services and supports for individuals who have severe learning disabilities and challenging behaviour are person-centred and understand why the person behaves as they do.

Different service providers may have different approaches to managing challenging behaviour. It is important that you check out the approach used by any service that you are considering using by asking for a copy of their behaviour management policy before you agree that it is suitable for your son/daughter.

Services should have appropriate monitoring mechanisms in place to minimise the risk of abuse, detect potential abuse, and highlight indicators of abuse within existing behaviour repertoires. In addition a number of other safeguards can be put in place to protect individuals.

Statutory requirements

1. Policies & procedures

The following policies and procedures should be in place, and copies available on request:

A comprehensive adult protection policy.
Behaviour management policy
Physical intervention policy
Risk assessments

In addition, there should be a clear complaints procedure. Complaints should be formally investigated and findings acted upon.

2. Monitoring and Inspection

All services are checked by agencies to ensure correct procedures are in place to protect vulnerable individuals. The main inspection agencies are CSCI (the Commission for Social Care Inspectorate: social care services) and the Healthcare Commission (healthcare services).
3. Staff checks (Protection of Vulnerable Adults scheme)

The Protection of Vulnerable Adults scheme (POVA) came into operation in 2004, and includes a list against which anyone who is employed to work with vulnerable adults is checked. Individuals should be referred to and included on the POVA list if they have abused, neglected or otherwise harmed vulnerable adults in their care or placed vulnerable adults in their care at risk of harm. By making statutory checks against the list, providers of care must not offer such individuals employment in care positions. POVA checks are requested as part of Disclosures from the Criminal Records Bureau.

Other safeguards

Separating housing and care provison

In the past, people with challenging behaviour who have been offered a complete service (accommodation and support) from a service provider have been vulnerable to exclusion if problems arise. This could mean that a person is given notice to leave the service. However, if the housing provision is separate from the care provision, the individual can remain in their home, and the care provider can be changed if necessary. This situation enables the individual to have greater control of his/her life.

Independent Advocacy

An advocate is someone who helps make the wishes and opinions of an individual known, and often families act as powerful advocates for their family member. However, there may be conflicts of interest at times, and sometimes family carers are not aware of all the opportunities that are available. Independent advocacy promises to be an effective way to help the person with a learning disability to have a stronger ‘voice’, and you should ask about advocacy services available in your area.

However, it is important to note that advocacy for someone with severe learning disabilities who is described as having challenging behaviour is a skilled role and will require a great deal of time, commitment and expertise if it is to be done effectively. Contact the Challenging Behaviour Foundation to make sure that any independent advocate working with your son/daughter receives specialist information and resources that will equip them in this role.

Mental Capacity Act 2005

This Act applies to everyone over the age of 16, and

• Assumes that everyone can make their own decisions unless it is proved otherwise (i.e. they have the capacity to make decisions).
• Says that a person must be given all the support possible to help them make decisions
• Says no-one should be stopped from making a decision, just because someone else thinks it is wrong or bad
• If it is decided that someone is unable to make a decision (i.e. they lack capacity) and a decision is made for them, it must be in the person’s best interest
• When a decision is made for someone who lacks capacity, the decision must be the least restrictive.

More information is available from www.publicguardian.gov.uk or telephone 0845 330 2900. A free guide (‘Making decisions: a guide for family, friends and other unpaid cares’) is available.

If your son/daughter is 16 or over, there is a duty to ensure that his/her wishes are taken into account when decisions are made, and that, for example, preferred communication methods are used to explain the processes and the options available. If your son/daughter lacks capacity, there is a duty to consult family members, and any decision made must be in the person’s best interests.

The act introduces two new criminal offences:

• Ill treatment of a person who lacks capacity
• Willful neglect of a person who lacks capacity

The offences can apply to anyone caring for a person who lacks capacity including family, health, social care, hospital or care home staff, Attorneys or Deputies.

Deprivation of Liberty Safeguards

People with severe learning disabilities should be cared for in ways that promote their independence, well-being and choice. However sometimes people with severe or profound learning disabilities are deprived or their liberty for treatment or care because this is necessary in their best interests to protect them from harm.

From 1st April 2009 new safeguards come into place to protect vulnerable individuals from being deprived of their liberty unnecessarily. All hospitals and care homes who are caring for a person in a way which takes away a person’s freedom must ask for an assessment to decide if it is right to take away the person’s liberty.