is bound to come under challenge in Human Rights Act cases now that the requirement on all authorities is to take a proportionate decision (not merely to avoid taking a wholly unreasonable one, any longer) having considered all relevant factors. It will be the reasoning of the decision- maker, who might be a senior manager or a Panel, which will come under scrutiny, not merely the preparatory fact gathering by front line staff.
Adult protection functions in particular require careful documentation of reasons for suspicion of abuse – with regard to decision-making about displacement of the nearest relative, information sharing or declaratory relief, or guardianship, s135 MHA applications, s47 NAA removals, and most importantly, documentation of increasing incapacity. It tends to be the practice not to document opinions about capacity until a crisis arises, whereas it should be a standard part of assessment, clearly within the competence of care managers, at least so far as daily living decisions are concerned.
Even before the Human Rights Act starts to loom large in judicial review of health and social care functions, it is very important that staff are supported in keeping proper records, both for the sake of the local authority itself and for the sake of the service users and the front line staff. In several local ombudsman investigations, there has been a finding of maladministration due to poor record-keeping:-
Dorset County Council 1996 (94/B/0821): missing records in respect of meetings may constitute maladministration.
Camden London Borough Council 1993 (91/A/1481): missing records in respect of applications for stair lifts may constitute maladministration.
Lambeth London Borough Council 1996 (94/A/3636): missing records in respect of falls in a residential home may constitute maladministration.
Birmingham City Council 1993 (91/B/1262): missing adoption file may constitute maladministration.
Wirral Metropolitan Borough Council 1993 (91/C/1258): the absence of a record payment of the improvement grant paid under the Housing Act 1985 was maladministration causing injustice because of the extra confusion it caused when the applicant pursued her complaint.
The Social Services Inspectorate has also found fault with poor record-keeping in the NHS and the Public Inquiry into organ misuse, likewise. The consequences of this apply equally to social services: compromised patient care, loss of protection against negligence claims and the devaluation of information used for contracting and audit (Audit Commission 1995). They have also found fault with unsigned, undated and illegible records in the NHS (again, such criticisms are easily transferable to social services records). Furthermore they have found that records might be kept inconsistently within the local authority and lack of records might reflect the lack of general arrangements for monitoring and care management.
It is especially worth noting that a carelessly written letter may invite a legal challenge and even if the challenge is not successful, the local Ombudsman might deem a letter, if it is careless and misleading, to be maladministration.
In Harrow LBC, ex parte Carter and Gateshead MBC, ex p Lauder in both these cases, a letter was evidence to the court that the local authority in question was operating a strict policy, thereby fettering its discretion and making an unlawful decision. On the other hand, the Court said in Cumbria County Council, ex p “NAB” that a letter which indicated that further consideration of an authority’s decision would be given if the applicant requested it, might be evidence that the authority had not fettered its discretion.
The notion of access to personal records, Freedom of Information (the Act is not yet in force) and the government’s vision for electronic health records and appropriate information sharing in the pursuit of streamlined single assessment, also involves an assumption that record keeping is modern, efficient and supported by technology.
We also think that without becoming unbearably legalistic and losing sight of the client at the heart of the process, it must be possible to design forms which emphasise participation of the user in the process, and also indicate which statutory functions the authority is acting under, in terms of service delivery.
Never has this been more necessary than in s117 Aftercare planning, because it is now the law that s117 services are not chargeable. We believe that authorities who have not got the means to prove what the discharge planners thought was needed by way of an aftercare plan, and what was not so required, will not have much hope of persuading a court that none of the care package was needed by way of aftercare – and hence the presumption will be that it was all s117 care. It will be even worse for authorities who cannot show that a person’s s117 status ended at a particular point, in accordance with the agreement of both authorities. Services which have been provided ever since the so-called termination may be deemed to have been continuing s117 aftercare, and hence unlawfully charged for ever since. The repayment claims will be larger than they need have been, if that is right.
Record keeping is very important too in relation to ASWs’ discharge of the functions regarding contacting the nearest relative. Without good records of the last contact with the nearest relative, it will be impossible to contact the right person in a crisis – but will still be open to criticism.