Care homes briefing 190 – £300,000 fine for failure to protect service users from sexual harm

The judgment in the Hillgreen case is now available. The case concerns a prosecution for breaches of the regulations under the Health and Social Care Act 2008 in respect of the care provided to service users in Colne Road, North London, supported housing for young adults with autism, learning and other disabilities.

It was alleged that the Defendant, Hillgreen Care Limited, failed to provide care and treatment in a safe way and further failed to put in place processes to protect service users from harm, including sexual harm, which resulted in avoidable harm to those service users. Both charges related to inappropriate sexual conduct of a service user XX towards two other service users YY and AA.

Relevant regulations

As providers will be aware, regulations under the Health and Social Care Act came into force on 1 April 2015:

  • Regulation 12 provides that care and treatment is to be provided in a safe way for those who use the service. This includes doing all that is reasonably practicable to mitigate any risks to the health and safety of service users.
  • Regulation 13 requires that service users are protected from abuse, which includes any sexual behaviour that is an offence under the Sexual Offences Amendment Act 2003. This in turn creates the obligation to create systems and processes which are operated effectively to prevent such abuse taking place.
  • Under regulation 22(2), it is an offence if the registered person fails to comply with a requirement of regulation 12 or regulation 13(1) to (4).
  • Regulation 22(4) affords a defence for a registered person if they can prove that they had taken all reasonable steps and exercised all due diligence to prevent a breach of any of those regulations.

The prosecution case

In summary, the prosecution case was that by the time XX moved to the home, information provided to the Defendant including a care plan and risk assessment made plain that he was an opportunist sexual predator. Knowing this, the Defendant took inadequate steps to protect other service users. The consequence of which failure was that AA had sexual intercourse with XX and YY was subjected to anal sexual intercourse with XX, neither of them having the capacity to consent to such intercourse.

The care plan for XX stated that he was ‘not to be left alone unsupervised when around other service users’. The judgment summarises the evidence contained in various documents which were seized as part of a CQC inspection, which record a catalogue of allegations made against XX involving vulnerable adults and children dating back to his childhood. The judgment also details the oral evidence given by staff who had worked at the home during the relevant period as regards the management of XX and any involvement in the incidents concerning AA and YY:

  • A support worker told the Court that she knew XX could be sexually harassing in behaviour and had been asked to ‘keep an eye on him’.
  • A deputy manager gave evidence that XX’s care plan showed he had a history of sexualised behaviour, however there were no specific instructions regarding management of this whilst he was in the home.
  • Another deputy manager noted he was aware XX had sexually abused a colleague. No one, he said, had ever told him about XX posing a risk of sexual abuse to men. He said he found that terrifying that he had not been warned. Staff had instructions that they should always know where XX was when he was at home. However, there was no closed-circuit television system that monitored the door to XX’s bedroom.
  • Another witness who had worked as a support worker explained that XX was meant to have one to one supervision but this was not practicable in a house with six vulnerable service users when there were only two members of staff on duty.
  • Concerns were raised regarding staffing levels by a manager who worked at the service for a short period, he was permitted to take on two more staff but only at weekends. The manager also told the Court that funding for treatment of XX’s behaviour had been stopped and so he sought assistance from a voluntary organisation. His view, raised with the Defendant in August 2015, was that XX ought to have his own accommodation. The manager is said to have left the service having been told, in relation to the incident concerning YY, that he should be careful as regards what he told authorities and the managers should stick together.

The Court also heard from Dr Sinclair, clinical psychologist, who noted a significant gap between what should have been provided by way of level of care and monitoring and the woefully inadequate care provided. His expert opinion being that XX required one to one monitoring 24 hours a day. The Defendant was not represented and did not attend the trial, thus did not challenge any of the evidence against them.

Outcome

The Defendant, which is subject to insolvency proceedings, was convicted and fined £300,000. The CQC was also awarded costs of £141,000.

CQC began the process to cancel the registration of the service in February 2016. The registration was cancelled altogether in September 2017. Providers may recall the case was the subject of an article in The Times in 2017 which suggested that CQC was involved in a ‘cover up’ of the rape of a service user, the CQC has since published a report regarding the regulation of the home which was prepared by Sir Paul Jenkins QC.

Comment

This is a particularly shocking case of the consequences for individuals where risks are not carefully managed by the Provider. The case touches upon a number of issues:

  • Care planning

It was clear that those working with XX were aware of some level of risk and that he required a level of observation. However it appears that what this meant in practice was not properly articulated either in the documentation or by way of management instruction to those responsible for the health and safety of service users living with XX.

  • Governance and trend analysis

Support workers confirmed that they were recording incidents. It is not clear that risk assessments were updated or reviewed by the service. Until 2015, it does not appear that an overarching view was taken regarding how XX might be best supported, at which point the manager suggested XX be housed in separate accommodation.

  • Questions concerning capacity to consent to sexual relations

It is noted that one of the managers in response to learning of the incident concerning YY, suggested that YY had consented.

  • Safeguarding responsibilities

Throughout the judgement there are reference to conversations between staff regarding who should be informed of various concerns, be it CQC, the police or otherwise. As providers will know failure to submit appropriate statutory notifications is of itself a breach of regulations.

  • Funding

As above, it is noted that funding for XX’s treatment was suddenly stopped. There are no further details in relation to this treatment or indeed the extent of the care commissioned from the Provider. It is not clear that there were any discussions between the two regarding reassessment and or increasing supervision levels more generally.

The case is a stark reminder of the need to have robust risk management procedures and effective training regarding staff application of the Mental Capacity Act and safeguarding processes.

It is not uncommon for care needs and Provider’s assessment of the same to vary over time. In circumstances where it is becoming apparent that a placement is clinically inappropriate, early consideration of all risks including a service user’s risk to others is vital. Providers should approach commissioners and other external agencies for support at the earliest opportunity.

Should you require assistance in relation to any of the issues discussed above please do not hesitate to contact us.

Read the full judgment here:
http://www.mentalhealthlaw.co.uk/media/CQC_v_Hillgreen_Care_Ltd_%282018%29_MHLO_50.pdf


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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