Care Talk: Judge Finds Safeguarding Process ‘Deplorable’

When adult safeguarding is done well, it is an open and collaborative process where all concerned share the aim of protecting vulnerable people and considering what measures can be put in place to manage risks.  When done badly, safeguarding can resemble a witch trial.  For years, the sector has faced some authorities behaving in the most despotic manner when exercising their safeguarding functions.  In August, a judgment was delivered on such a case.  The principal provider was Mrs. Davis, a 77 year old woman, who understandably left the day to day running of the care home to the management and staff.  Amongst the shortcomings of the investigation were the following:

  • Allegations were withheld from the provider for many months.
  • Attempts by the provider to seek details of the allegations were described by the local authority as interfering with the investigation and a possible breach of the NMC Code of Practice.
  • A 22 page report of vague allegations was delivered at 7pm on 8 December giving an unrealistic timescale for the provider to prepare a response in time for the case conference scheduled for 9.30am on 10 December.
  • Reasonable requests for more time were refused.
  • Mrs. Davis faced 8 hours at the case conference without any support, against 10 officers of the local authority.
  • The local authority relied on answers provided by Mrs. Davis even though they knew that she had been advised by her solicitor not to answer questions and even though she intiailly tried to follow that advice.
  • Mrs. Davis was told to repeat a comment during the case conference that she had made informally during lunch.
  • The providers were given a woefully short period over the Christmas period to respond to the case conference minutes even though the local authority had taken months to complete its investigation.
  • The providers were not informed about a meeting convened to consider reports commissioned to review the investigation.

The judge in the case described the local authority’s conduct as deplorable and quashed its findings.  He held that it was not a defence to judicial review of safeguarding cases to say that the purpose of safeguarding is to protect vulnerable people.  That purpose was no reason to treat providers unfairly.  Moreover, safeguarding was a public function, rather than a matter of private law, and so was amenable to judicial review.

For far too long, safeguarding has been an area of public administration where accountability has been sorely lacking.  This judgment will help to change that.  Local authorities which behave unfairly should be told firmly of their obligations to comply with public law.  Those authorities that continue to abuse their position should expect that providers will now challenge them, emboldened by the case brought by Mrs. Davis who quite rightly refused to accept the horrible injustice she suffered.

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