Keywords: Defensible decision making; safeguarding

The claimants owned and ran a residential care home which had local authority funded residents (under a framework contract). The contract provisions permitted the local authority to terminate the contract with notice, or immediately in the event of a serious breach. A CQC inspection in June 2009 resulted in a “poor” rating which triggered the local authority’s policy of suspending referrals to homes with “poor” ratings. The local authority also warned the claimants that they would be in breach of contract if specific improvements were not made and, subsequently, issued a further warning that the contract would be terminated if the home failed to improve.

A few months later there were two incidents at the home which caused concern. In one, medication had been given to the wrong resident and a former employee indicated stated to journalists that a cover up had occurred. The second incident involved an unexpected death following a fall in circumstances which were unclear where the claimants had failed to report the incident to the CQC. At this point the defendant local authority and another authority temporarily suspended referrals to the home and there was a police investigation. Meetings occurred between the local authority, the police and the CQC.  In January 2010, the local authority decided to suspend all referrals to the home, but not to inform the claimants of this decision to avoid any possible adverse impact on the police investigation. During this period, a number of local authority staff stated untruthfully to the claimants that no such decision had been taken. At different points both claimants were arrested. Following the second arrest, all the remaining residents of the care home moved to other homes. No charges were ultimately brought.

The claimants argued that the residents had been bullied, threatened and lied to by five local authority employees who had deliberately sought to close down the home. They sued the local authority claiming misfeasance in public office by its employees.

The claim was dismissed. It was held that the local authority’s officers had acted with the motivation of protecting residents. Their actions could only be challenged if they were Wednesbury unreasonable. The local authority had been under no obligation to place residents in a home it deemed to be unsatisfactory and choice rights did not override this. The untruthful statements made to the claimants about the embargo on placements in the home had been made in the reasonable belief that they were legitimately assisting a police investigation.

The conduct of officers during the period when residents moved out of the home had been appropriate and lawful. Capacity assessments had been carried out and relatives contacted. Residents had been given accurate information and advice which, whilst sometimes strong, was unbiased. They did not speculate as to the future of the home and had taken appropriate legal advice prior to advising residents. Residents were given a free choice and were not pressured. Even though all residents ultimately decided to leave, the manner in which this occurred was not unlawful. The local authority’s officers had acted with the goal of protecting residents, not the goal of closing the home. The consequence of causing the home to close was incidental and the officer’s actions were not unlawful. Therefore there was no misfeasance in public office.

ANALYSIS: This case is a good example of lawful decision making by a local authority in a difficult situation which was successfully defended. The key points here are:

  • local authorities must act fairly and without bias, considering carefully the consequences of actions for all those involved
  • it is lawful to act on the basis of a belief which is reasonable (in this case that lying about the embargo was necessary to assist the police investigation)
  • it is lawful to provide information and advice – including strong advice in favour of a particular course of action – if (a) the advice provided is unbiased and evidence based; (b) the service user is given appropriate time and freedom to make the actual decision for themselves.

In this situation local authority staff focussed on their duty to safeguard residents but were also mindful of the rights of others (including the care home owners) and weighed these competing rights carefully. They were legally literate and understood what actions were and were not open to them to take and what their duties entailed. As a result, the local authority’s decisions were successfully defended.

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