[2025] EWHC 2684 (KB)

As I shall set out in detail in due course it was a very strange aspect to the conduct of the Claimants’ case at trial that DS Brownsell; the author of the case summary and MG6 (he said that the contents of the case summary were prepared primarily by him but in conjunction with DC Horsburgh) was not cross-examined about the detailed content of these lengthy documents (save for one very limited issue). This despite it being the Claimants’ case, as set out in opening and closing submissions, that the case summary was “clearly misleading in a number of respects as it did not represent the true state of the evidence”.

I shall deal with specific criticisms of the summary (as I understand them to be) within my review of the witness evidence. However it is necessary at this stage to give a relatively brief overview of the two documents.

The case summary is a very substantial document (over 200 pages long).

After an introduction and overview of the running of psychiatric hospitals it provides background information regarding Cawston Park Hospital setting out details taken from Mr Chancellor’s statement (including that there was no difference between extra care and specialling other than the wording and that extra care would be, without a shadow of a doubt something extra).

The next section considered extra care as defined in documents seized during the investigation. This included a service level agreement with Norwich PCT signed by Mr Breeze on 6^th January 2004 (which on the Claimants’ case was wrong), a later service level agreement of 31^st March 2005 and various internal documents setting out definitions of extra care. It is stated:

“…It should be noted that extra care is frequently compared to specialling in these documents Especially with regards to pricing. It is quoted as being charged for by the day or part of the day although evidence of a part day payment has never been found. The mixed messages as to what extra care is, is discussed later. Where a patient has been specialled elsewhere this has been used to justify the charges and the risk factors cited are similar to the test required for sectioning. It has been observed that the explanation of what extra care is (or is not) gathers momentum in 2006. Inquiries have ascertained that Linda Todd (commissioning manager, Norwich PCT) became aware of an investigation around this time. In essence prior to this time SLAs refer to extra care especially in terms of its delivery. Many of these documents refer to extra care being reviewed on a regular basis. There is no audit trail to evidence the review of extra care and Dr Barker in interview admits that it never was.”

The allegation as made by Mark Deveney is then considered.

The summary then considered in detail the evidence from Primary Care Trust Commissioning Managers with precis of the statements of 12 commissioners. As is observed the PCTs in Norfolk and Suffolk were the main suppliers of patients. Mr Rowley lead commissioner for Suffolk West and Suffolk East is noted to have said that to some extent the system “is based on trust” and

“With extra care x1 there would be a distinction about this being 24 hour care or just daytime care and I would have expected extra care x1 to be 24 hour care, including one to one care whilst asleep. So if the patient was off site for any length of time, perhaps as explained within the SLA, I would have expected that extra care was not needed during that period and so would not be charged…(and in respect of extra care x 2 for patient AC)…I would have expected there to have been two male nurses looking after this patient during this time on 8 hour shifts or something along these lines…if I had clear evidence that services were not being provided as set out in the contract I would have ensured its termination.”

It was not in issue that extra care was charged whilst patients were on leave (so off site) and that the x1 and x2 direct staffing did not take place. In respect of Rob Hall who dealt with contractual referrals for Suffolk East after Mr Rowley it is set out that he stated:

“If a patient were receiving extra care…Then I would expect them to have one person with them all the time, like having a shadow. I do not know how many nurses this would entail or how long their shifts were. I would not expect a nurse providing one to one care to be responsible for other patients at the same time…If a patient went home on day leave without anyone escorting them I would expect reimbursement for any extra care that had been agreed. I would expect the basic care costs to continue to keep the bed open ready for their return.”

Linda Offord of Waveney PCT is noted to have stated:

“I do not recall being given any details from Chancellor Care that absolutely defined what extra care was or how it was being delivered. I assume that at night they would be pulling in waking staff who are additional staff with the sole responsibility to look after this patient.”

And

“The clinical reports provided by Chancellor Care with their extra invoices gave me reassurance that this patient was receiving the extra care treatment that was being referred to…And understood this to mean that extra care was actually being delivered to her. I thought that extra care included additional staff, including therapists and nursing support…I would not have expected to pay extra care charges for any periods when she was away because my impression is the extra care was for the two nurses that would have to be with her all the time.”

I shall not set out the analysis in the summary of the other Commissioners, but as an overview it can reasonably be stated that the evidence would tend to disprove any suggestion that the charging of extra care was an open and transparent exercise with the rationale and basis clearly explained by or on behalf of the Claimants. Also that the Commissioners believed that extra care meant the provision of identifiable care beyond that given to other patients.

The summary then considered the delivery of extra care, with the commentary;

“It is the view of the investigating officers that a number of factors in the running of Cawston Park meant that it was not possible for extra care to be delivered to patients. A wide range of staff of varying disciplines were canvassed by postal questionnaire. It is evident from statements taken as results of this process the concept of extra care is unknown amongst those most likely to deliver it. It became apparent that at best staffing levels could be described as adequate; several witnesses have referred to the staffing levels as dangerously low. What is evident is that Cawston Park was not over resourced to deliver extra care. Many of the staff at all levels, describe a culture of penny pinching at the hospital. This is in terms of staff and other resources is available for patients (these accounts are contrary to Breeze and Wilson’s account that the hospital was over resourced and tends to show the hospital was run to maximise profit).”

The summary then gave the brief details of the statements of a number of members of staff from consultant psychiatrists, managers, members of the accounts department, nurses and the activities manger. It is pointed out that in addition to the witnesses referred to there were statements from 30 others on the file. The summary then sets out an overview of evidence in relation to staffing levels and in relation to a penny pinching culture using extracts from witness statements. The summary explained that following the setting up of the Gold Group there was an unannounced inspection by the Healthcare commission which led to a statutory requirement notice being served (the summary then dealt with evidence as to cleaning).

The summary next considered information extracted from the records of patients who were subject to extra care.

Extracts were set out from the draft report of Mr Hird who had been asked by the board of directors to undertake an inquiry as to the provision of extra care. Also there was a brief analysis of the expert report being compiled (then a work in progress) by Dr Badcock. He was asked to sample a set of seven records covering patients not being charged for extra care, some extra care and on long term extra care on a blind basis.

Details were next set out about the purchase and intended disposal of the company.

The summary then dealt at considerable length with the interviews of the Claimants and Dr Barker; Mr Breeze internal pages 93-129, Mr Wilson pages 129-157 and Dr Barker pages 157-185, noting at the end that the interview records were included with the summary.

The conclusion of the summary was: