On 22 August 2012 the High Court in the case of Davis & Davis v West Sussex County Council handed down an important judgment focusing on the fairness of adult safeguarding investigations –.
In this article I seek to consider the case in the wider setting of safeguarding, the facts of the case and offer some practical tips for care providers to reflect on.
The statutory framework and DoH Guidance
Before turning to the details of the case, I briefly remind readers of the relevant statutory framework and the principal guidance issued to local authority safeguarding teams. Section 7 of the Local Authority Social Services Act 1970 states that Local Authorities must in the exercise of their social service functions, including any discretion conferred by any Act, and take into account guidance issued by the Secretary of State.
Readers will know that in March 2000 the Department of Health (DH) published its “No Secrets” guidance. This guidance requires local authorities to take a leading role in ensuring that vulnerable adults are protected from abuse and where incidents are brought to their attention to lead and coordinate a multidisciplinary investigation.
The overarching object of an adult abuse investigation is said to be:
- establish the facts;
- assess the needs of the vulnerable adult and provide support where necessary; and
- decide what action should be taken against the perpetrator of the abuse
- and also decide what, if any, action should be taken against the service provider in light of any culpable, ineffective management or if negligence is uncovered (6.3 of the guidance).
When undertaking an investigation into alleged abuse, the DH guidance specifically requires local authorities to:
- have a single reporting point;
- record any allegation with due regard to the sensitivity of the abused person;
- coordinate the investigation with representatives of all the appropriate agencies and devise a suitable strategy
- investigate the facts within a predetermined framework and take decisions at a ‘shared forum’ or case conference.
Most local authorities have devised their own local multi agency policies and procedures for safeguarding vulnerable adults which mirrors part or all of the “No Secrets” guidance.
It is now common place for commissioning contracts to require service provider cooperation with adult safeguarding investigations and, where abuse is suspected, a power permitting suspension of further placements, resulting in income loss. Such contracts invariably contain a termination clause and where those are invoked, it results in major financial loss and often long term damage to hard-earned reputations.
The facts of the case
Mr & Mrs Davis owned and operated a care home in West Sussex. In early April 2010, ten allegations were made by a whistleblower who, it was thought, was a former member of their care staff. Initially whistleblowing concerns were raised about nursing practices such as wound dressing and ear syringing.
The home was asked to suspend the manager and another member of staff. The home felt that it had no option but to succumb to the pressure exerted and agreed to suspend the manager. The remaining accused member of staff was placed on restrictive duties.
West Sussex Council suspended placements.
Subsequently the police became involved and Mr & Mrs Davis sought details and indicated that they proposed to fully cooperate with what they hoped would be a speedy investigation. Details of the allegations made were requested but as is frequently the situation, the information provided was scant.
Matters trundled on and in early September 2010 the Davis’ Solicitors wrote seeking details of the
allegations and also invited discussions about the ongoing suspension of placements. The home manager who had by this stage of the investigation had resigned was interviewed by police in late October.
On 4 November the police and CPS decided that there was no evidence to justify criminal charges and the suspension on placements was duly lifted.
A few days later Mrs Davis requested that the safeguarding process be resolved promptly and a meeting was arranged for 10 December.
At 7pm on 8 December the Davis’ were sent a 22 page report to the Davis’ alleging abuse of 13 residents only 1 of whom was a local authority placement.
Unsurprisingly the Davises complained that they were unable to deal with a substantial report with little more than 24 hours’ notice. Mrs Davis’ solicitors, quite properly and reasonably, suggested a postponement for 10 days so that the report could be properly considered. However, that request was rejected out of hand.
Mrs Davis attended the case conference with her former home manager.
The former home manger was refused admission on the basis she was an alleged perpetrator a decision that the court described as “understandable in the circumstances”.
The case conference meeting lasted 8 hours and it appears that the police interview with the former home manager, which lead to a decision that no further action be taken, was not disclosed to the meeting.
In relation to the case conference the Court expressed considerable disquiet about there being “10 on one side and Mrs Davis being on her own” and after a gruelling process conclusions being drawn about her fitness to be involved with a registered service.
The Judge stated:
“I again remind myself that the prime objective of the investigation was to protect vulnerable adults and to prevent abuse not to give particular consideration to Mrs Davis. But her treatment at and around the meeting was deplorable…”
The case conference found 14 allegations substantiated with 10 considered inconclusive. So-called ‘institutional abuse’ was found and 45 actions were imposed on the home. Three individuals were referred to the Independent Safeguarding Authority and Nursing Midwifery Council. A review was requested which lead to further issues of concern being raised by the court.
In a ruling that focused on the lack of fairness that had been applied to the safeguarding process by council officers, the Judge found that Mrs Davis’ limited role as owner of the service, and not manger, was well known to the adult safeguarding team and that she had been unreasonably refused an adjournment to prepare for the case conference.
The judge further held that the decisions reached on the allegations by West Sussex were reached unfairly and he was deeply critical about what had occurred. He concluded that even with the benefit of hindsight West Sussex appeared to lack insight into the legal requirements of fairness.
The judge was also critical of the fact that West Sussex decided to characterise the Davis’ complaints to the Council and lobbying of Councillors as evidence of a lack of co-operation, rather than as a pursuit of natural justice. He also expressed the view that in relation to the home being asked to suspend staff, where staff are suspended, unless there is a compelling reason to withhold details, staff are entitled to know the reasons for their suspension.
Finally in quashing the decisions taken by West Sussex the Judge took the highly unusual and embarrassing step of requiring the authority to inform the ISA and NMC of the court’s judgment.
Practical steps to consider when you are involved in Safeguarding investigations
This is a notoriously difficult area for all providers and it is difficult to offer anything other than general tips.
The following are my top 10; however, one must exercise care and reflection in each instance of safeguarding and execute a bespoke strategy dependent upon the circumstance of the specific case.
- It is worth bearing in mind that there is great pressure on local authorities and those involved in the safeguarding process and most officials act with good intentions to protect the vulnerable from abuse. If they fail to respond and act to allegations raised they can and will be held to account.
- Remember to keep full and contemporaneous notes at all times. These investigations often drag on for months and good note-keeping is vital. That means all contacts including telephone discussions as well as attendance at meetings. Consider taking someone along with you whose primary role is to take a note.
- Where you have prepared a good note, do not be afraid to challenge poorly prepared minutes of safeguarding meetings – inevitably the notes will have been prepared by council staff. The note from the last meeting may only be circulated shortly before the next meeting and you might consider promptly typing up your own record of the discussion and agreed actions and sending that to the chair before the council has sent its minutes to you.
- Where you are being ‘kept in the dark’ keep pressing for summary details of the allegations. After all, how can you be expected to deal with alleged abuse if the details are kept from you.
- Do not ask who made the complaint especially in the early stages. If you consider that the allegation has been made (unfairly) by a former disgruntled employee, there is nothing to stop you raising that issue at an appropriate time during one of the adult safeguarding meetings.
- If you have evidence of good care practice at the service, make sure that is brought to the attention of the meeting at a salient point. For example, a relatively recent unannounced CQC inspection and/or Commissioner visit that has resulted in findings that essential standards are met or compliments about the service – then make those known. If you are confident in your service, consider whether you might invite CQC/Commissioners to carry out unannounced inspections or visits. The Regulator may plan that in any event so there may be no downside – it will show that you are confident but make sure you and the staff team are prepared for any such visit. Testimonials from residents tend to be less important, but if you know of a family member who regularly visits the home at different times you might consider asking if they would write an open letter. A bland letter saying the home is fantastic, food is nice and the person gets on well with the staff will simply not ‘cut it’. The letter should seek to persuade and the use of care practices witnessed may go some way to doing so. However, this may be difficult if there is a requirement of confidentiality.
- Do ask for a timetable and, in relation to elements within your control ensure that the timetable is adhered to. If the meeting has concluded with agreement that the investigation is to be conducted promptly consider emailing the chair setting out that fact and other key issues in writing.
- Consider, in advance, how you might react to a suggestion from CQC and/or the Commissioners that there should be an embargo on future placements. If it is suggested that it will be open ended embargo, you should consider obtaining specialist legal advice. If, for example, you have had a succession of medicines errors over a period of several months it is to be expected that the regulator or Commissioners will want to see what action you have taken. If you have waited until the meeting to be told what steps you should consider taking to address concerns then clearly that will influence the decision takers. Be proactive and consider coming armed with a draft action plan. You might, in a succession of medicines error scenario, offer or voluntarily agree to a suspension on placements pending your internal disciplinary investigation, further training on safe medicines practice, visit from local pharmacy, etc. Be very careful about agreeing an open-ended embargo and as an alternative suggest a month or 6 weeks if you feel pressurised.
- Be familiar with your local safeguarding policy and procedure and if there has been a long passage of time do not be afraid to suggest that the investigation is taking too long or the service is being treated unfairly. Competing factors must weighed and balanced (good relationships, funding, whether the allegation is serious, are there staffing issues, does the service have some underlying problems etc) but do not be overly subservient to safeguarding officials or the process.
- Consider how you manage CQC or Commissioning action with staff and possibly service-users and their families. If you have been let down by one or two members of staff do remind your staff team of the consequence of poor care practice.
In my experience more care providers are properly seeking the support of experienced and expert lawyers familiar with the safeguarding processes and who frequently attend case conferences with the care provider…sometimes you just need a lawyer to prevent abuse by the council, as the Davis case amply demonstrates.
Keith Lewin, Brunswicks, Birkenhead