Malicious complaint re alleged abuse of a vulnerable adult

penguingirl

PHILANTHROPIST wrote: »

Bit too late me thinks, and on balance not much of a fan of Union Reps.

Doesn't sound too late to me, and your friend should also be able to get legal advice via that route. I'm not a fan of Union reps either, but they can open up other avenues of support.

elsien

As you specifically mention the Care Act, this is the SCIE guidance. It has nothing to do with employment law or the DBS - you are conflating separate bits of information.
I appreciate your concerns but I do feel you are confusing different bits of legislation and their purpose.

"As always, there is a balance to be struck between sticking strictly to procedures to protect adults who may be at risk of abuse or neglect, and responding to the needs, wishes and circumstances of individual people.

The legislation requires SABs to create an open culture around safeguarding, working in partnership with care providers and other partner agencies so that the best outcomes for people who use care and support services are achieved. Local authorities should come to an agreement with other local agencies about how the new arrangements will work in their area. This will be reflected in local policies and procedures.

These multi-agency procedures must reflect statutory guidance. They should also spell out for local care providers the circumstances in which the police should be involved and when other agencies (including the local authority, NHS clinical commissioning group and the Care Quality Commission) should be notified, and what their role should be. There may be occasions when the local authority will be notified in its role as commissioner, without the adult safeguarding team being involved.

The procedures should also clarify the expectations of other service providers, and what they should do and when. The aim should be to:

prevent, reduce or remove specific risks
support individual adults to recover from any abuse or neglect they have experienced
help people make the decisions they feel are right for them.
Members of the public and staff from a wide variety of agencies may report safeguarding concerns to adult services for various types of abuse and neglect, including physical, psychological and financial abuse and exploitation.

On the quality of care and clinical issues such as wrongly administered medication, pressure sores and falls – where the cause may be poor care (see Question 8) rather than intentional harm – local policies should spell out the appropriate responses, such as intervention by the local clinical commissioning group or reporting to the Care Quality Commission. Local policies should set out the extent to which the local authority expects to be notified of these by service providers. It may be that the local authority will want this information to be passed, where significant, to the local Safeguarding Adults Board as well as to local commissioners.

In relation to health and social care services, the Care Quality Commission will want to satisfy itself (through registration and inspection) that where poor care occurs, the provider is competent to address it quickly and effectively.

If abuse or neglect takes place in a service such as a care home, home care agency, day centre, hospital or college, the first responsibility to act lies with the employing organisation as the provider of the service. When an employer or manager is aware of abuse or neglect happening in their organisation, they should do two things:

inform the local authority (and the local clinical commissioning group, if the NHS is the commissioner), taking into account the person’s wishes
take action to protect the adult concerned from further harm (such as by removing the staff or volunteers involved, or by providing them with additional training or supervision).
The employer (a term also used here to cover managers in places where there is no employer, such as in a volunteer-run service) should carry out their own initial investigation of any safeguarding concern. This should happen unless there is a compelling reason why it is thought to be inappropriate or unsafe, for example:

there is a serious conflict of interest (such as a small, family-run home where a wife might be investigating her husband)
there is reason to believe that the matter will not be responded to effectively (such as in a small or volunteer-led body where there isn’t sufficient expertise or experience) or
there is a reasonable suspicion that a criminal offence has taken place.
The wellbeing of the person concerned should be of paramount importance."

I think proving that a complaint is malicious when the onus tends to be on reporting rather than not is going to be near impossible.
I've not had anything to do with DBS barring so can't contribute anything useful there, other than to say part of the reason for being able to include people who've not been convicted is the Soham murders where the person in question had a string of allegations that he was able to leave behind. As with many things, it's a balance, but I don't know how stringently the DBS barring is considered and how much opportunity people now have to put their case. Your friend would need specialist advice on that.

PHILANTHROPIST

chesky wrote: »

Your friend needs an employment solicitor.[/QUOTE

Kindly read the OP. my friend has an employment lawyer.

PHILANTHROPIST

pphillips wrote: »

The charity is be subject to the law of the land like everyone else. If the charity slander your friend and damage your friend's reputation causing injury to your friend's career on the basis of a lie then your friend can make a claim against them in defamation for the resulting loss of opportunity, earnings and other damage they have caused.

Easy to say. Difficult to achieve in practice. Charity has a prima facie defence of qualified privilege. My friend is penniless. Would you risk say £3-4K on a defamation claim in the county court even if it had a modest chance of success ?

PHILANTHROPIST

elsien wrote: »

As you specifically mention the Care Act, this is the SCIE guidance. It has nothing to do with employment law or the DBS - you are conflating separate bits of information.
I appreciate your concerns but I do feel you are confusing different bits of legislation and their purpose.

I think proving that a complaint is malicious when the onus tends to be on reporting rather than not is going to be near impossible.

I've not had anything to do with DBS barring so can't contribute anything useful there, other than to say part of the reason for being able to include people who've not been convicted is the Soham murders where the person in question had a string of allegations that he was able to leave behind. As with many things, it's a balance, but I don't know how stringently the DBS barring is considered and how much opportunity people now have to put their case. Your friend would need specialist advice on that.

Re above that is my point exactly.

I note your opinion re me confusing legislation, but I am not confused by the legslation. I am confused by its application.

There is a presumption of innocence in UK law. My friend is innocent. An internal investigation carried out by a charity who have a personal vendetta (prefer not to go into detail) is tantamount to a kangeroo court. Accept point re Soham murders, but the presumption of innocence should surely be as important as the need to protect vulnerable adults.

IAmWales

PHILANTHROPIST wrote: »

Kindly read the OP. my friend has an employment lawyer.

Then they need to get a more competent one, safeguarding issues are nothing out of the ordinary in employment law.

(I assume you are not the lawyer. A lawyer would not be asking for advice on an internet forum!)

elsien

Criminal law is innocent till proven guilty.
Civil law tends to go more on the balance of probability with a lower burden of proof.

PHILANTHROPIST

IAmWales wrote: »

Then they need to get a more competent one, safeguarding issues are nothing out of the ordinary in employment law.

(I assume you are not the lawyer. A lawyer would not be asking for advice on an internet forum!)

Agree. That is why I told my friend to stand down their solictor and challenge their £2400 plus VAT bill.

Taking my friend to see a barrister at end of the week.

PHILANTHROPIST

elsien wrote: »

Criminal law is innocent till proven guilty.
Civil law tends to go more on the balance of probability with a lower burden of proof.

Agree, but for an accusations as serious as "abuse of a vulnerable adult" there should still surely be a chance for both sides to make representations, and for such representations to be heard by and the outcome decided upon by a truly independent party.

elsien

Historically abuse of vulnerable adults has been allowed to continue because they can make unreliable witnesses in a formal setting - cases do not go to court because people have memory issues, for example, and are unable to clearly remember the date or time of an incident even when they are very clear as to what happened and who by. I'm not sure how you'd manage the sort of independent hearing you are considering while still giving people the protection they need.

If your friend had been accused of theft from the charity rather than a safeguarding allegation, then the employment law situation would have been exactly the same, and there would not be the opportunity to have the outcome decided by a truly independent party. And he may still have ended being put forward for the DBS barring list.
I'm not trying to dismiss what your friend is going through. But it comes across that you're on a little bit of a crusade that's not necessarily going to get him anywhere at the moment.
You weren't there. You didn't see what happened. He may be telling the truth and be completely innocent. He may not. Or it may be closer to the gray area somewhere in between. If he has good legal advice, he would be better following that.