A more discerning approach to safeguarding decisions

It is a truth that should be universally acknowledged: fairness is conducive to good administration. Unhappily, some local authority decision making falls foul of this principle. Recently, HHJ Mackie QC castigated a local authority for treating care home proprietors unfairly, during a safeguarding investigation. The case was Davis & Davis v West Sussex County Council [2012] EWHC 2152 (QB), and every local authority lawyer should read it.

I have often thought that the whole concept of safeguarding is seriously flawed. Safeguarding derives from the Department of Health's 36-page guidance, 'No Secrets', issued in 2000. This defines 'abuse' in such sweeping terms that almost anything can be abuse. It requires 'multi-agency policies and procedures' to be adopted. Local authorities have responded with elaborate policies, sometimes 300 pages. The result is a cumbersome, one-sided, and over-engineered process. Safeguarding committees are tasked with 'fact-finding.' Even if unfairly treated, most people have not got the means to go to court.

Legitimate expectation

Mr and Mrs Davis own two care homes in Sussex. Mrs Davis is aged 77. They had a contract with West Sussex County Council. The lead manager was Ms Hillary-Warnett. In April 2010, a whistleblower told the council that certain low level nursing tasks, such as wound-dressing and ear-syringing, were being carried out by care staff. The council wheeled into action, and told Mrs Davis to suspend the manager. Then the police were involved.

The Davises were not told of this development, though they instructed lawyers. Their solicitors asked the council for particulars of the concerns, invoking natural justice. The council refused to tell them, citing the Sussex Multi-Agency Policy and Procedures. It complained that Mrs Davis had shared information with the manager, and threatened the manager with referral to the Nursing and Midwifery Council because she had asked for information about the allegations.

The judge said that 'West Sussex had not told Mrs Davis that she should not discuss the allegations, 'so it was difficult to see how any complaint about this can be justified.' It was equally difficult, the judge continued, 'to see how the claimants could suspend two employees without giving them indications of what the reasons for this might be or ignore requests from residents for information about what was obviously going on in their home.'

He concluded that 'it was not appropriate to characterise requests for information as constituting a failure to co-operate with an investigation and wrong to threaten that this was arguably professional misconduct.'

The council in a letter did promise that the manager would be interviewed, and that after investigation reports were written, they would be 'shared' with the Davises, before a case conference. The Davises argued that this gave rise to a legitimate expectation. The judge agreed.

Deplorable treatment

The case conference was set for 10 December 2010. The council delivered a 22-page report to Mrs Davis on the evening of 8 December. Her solicitor complained at the short notice (he could not attend on the 10th), and requested an adjournment. At 6.00 pm on 9 December, the council refused. So Mrs Davis went to the meeting, with two managers. The managers were both refused admittance, as they were subject to allegations. That left Mrs Davis in a meeting with ten others, of whom eight were council employees.

Mrs Davis handed the chair her solicitor's letter, requesting an adjournment, but the chair refused to show it to the others. The meeting lasted eight hours. The judge described Mrs Davis' treatment as 'deplorable.' Then, the council found 14 allegations of 'abuse' substantiated, including one of 'institutional abuse', owing to 'an incestuous management and ownership structure.' The judge said this was an odd way to describe a family business.

Before the case conference minutes were ready, the council served a default notice under its contract on the Davises. Then it sent the minutes on 22 December, and required a response by 31 December (three days shorter than that laid down in its safeguarding policy). The judge called this 'a ludicrously short timescale.' Following further complaints by the Davises' lawyers, the council held two reviews, and then a further case conference, which it held without informing the Davises, again in breach of its own guidance.

In court, the council denied any wrong-doing. It argued that because one resident was placed under contract with it, judicial review was inappropriate. The judge rejected this argument. He also did not agree that 'No Secrets' provided a legal basis to override natural justice. He quashed the adverse determinations of both case conferences, and granted declarations of illegality.

This case may inspire others accused of 'abuse' to challenge safeguarding decisions by judicial review. The allegations against the Davises did not sound particularly serious: more like a turf war between nurses and care assistants. But disagreements about who changes a dressing should never be allowed to escalate to a point where the police are called in (see Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, where Lord Justice Elias called a police referral 'astonishing'). It behoves those involved in safeguarding to take a more discerning approach to allegations. Safeguarding did not prevent the serious abuse that went on at Winterbourne View care home