[2025] EWHC 2684 (KB)

He continued

“I have made my view on 'specialling' very clear however I will reiterate that if felt someone needed an extra custodial presence to get them through whatever episode or problems they were dealing with they would get it. It may however take a diversionary tactic like, taking somebody shopping, whatever it took.

This extra presence ultimately requires extra staff or resources could incur an extra cost but only for the time it was required. In these cases there is no difference in my view between ‘specialling and extra care’ it's simply the wording.

I have been asked about PCT's being charged extra care and double extra care for extended periods. I would personally find great difficulty in justifying that. Great difficulty. I would from experience expect that situation to be challenged and certainly I would expect any such ‘extra care’ to be properly documented,

From a clinical point of view if someone was under that level of 'extra care or specialling' for a whole month you'd want a clinical review of their care, because something's not right. Either they're that distressed or that disturbed that they must be in the wrong place or something's not working.

An episode of that length is something extraordinary.”

Mr Chancellor was equally forthright on the issue of charging whilst a patient was not at the hospital. He stated that;

“For someone on extra care as I understand it and have described it in this statement to be given periods of unescorted home leave is absolutely outrageous. The very nature of extra care and specialling is that the client is in a period of distress, a danger to themselves or someone else.

You don't send them on leave and still charge for that level of extra care. That would be a complete no no.

I can't in any event think of a clinical benefit in sending somebody on leave under those circumstances.”

In his summary to the CPS DS Brownsell noted that Mr Chancellor recruited the Claimants to assist in the run up to the opening and subsequent management of the hospital and that he was still running the Kelling Park site. He effectively devolved a great portion of the work in getting the Cawston Park site up and running and became exhausted. Mr Chancellor also stated that he brought from Kelling Park an ethos of patient care that included how he and his staff would deal with acutely distressed mentally ill patients. He insisted on the setting up of the hospital and that the word “specialling” was replaced with another term. He believed that Mark Deveney, the Claimants and Simon Barker came up with the term “extra care”. DS Brownsell stated “He has stated that there is no difference between extra care and specialling other than the wording”. In the interview the exchange was as follows;

DS Brownsell was not challenged on his analysis in the summary but having considered it carefully and also in light of his cross-examination it is my view that it is a fair precis of the interview and statement. I find that there was no deliberate distortion or manipulation.

Significantly, after he provided a statement, but before the trial Mr Chancellor was made a co-defendant in the civil claim brought in the High Court Chancery Division by the company against the Claimants and Simon Barker. The Particulars of Claim are dated 17^th October 2007 and the sum sought as damages was over £12.5 million. The allegation was that there were breach of warranties in relation to the sale agreement of 25^th May 2005 by reason of the extra care charges. Objectively, this gave Mr Chancellor a very strong personal incentive to defend the extra charge process.

In his witness statement in this action Mr Chancellor stated;

“With the trial looming I received a witness notice from DC Baker…I thought it best to see my solicitor, Malcolm Savoury, to ask general questions about the trial process and what to expect when giving evidence. It was at this point that I properly looked at my statement and realised how open to misinterpretation it was in several aspects. A clarifying statement was prepared which I felt resolved any confusion.”

The lengthy statement of clarification is dated 22^nd April 2009. The trial had started on 20^th April and during his evidence Mr Chancellor confirmed that he only produced his “clarification statement” during the trial and never provided a copy at an earlier stage. I reject as matter of fact that when Mr Chancellor spoke to DC Baker during the run up to the trial that DC Baker was dismissive and appeared irritated and I view as misconceived the rather curious suggestion that DC Baker somehow sought to supress a clarifying statement that he had not seen (and it appears was not yet even produced) by telling Mr Chancellor to attend Court.

The clarification statement is markedly different from the police statement. It contains the following extracts in relation to extra care:

“I have no recollection of when the term extra care was adopted. I think we were struggling how to describe how we would charge for those patients who we assessed would consume greater resources that the ‘average’ patient. Someone came up with the idea of calling it a charge for the extra care that such patients would require the company to provide.

One important difference from the operation at Kelling, was that there was no concept of a prescribed basic charge for a secure mental hospital. So the company’s basic charge was very much based on what other private institutions were charging and then charging a bit less. However, all the other private sector hospitals were charging, in addition, to a basic rate a charge for specialling, as required.

I think to some extent we were able to include a charge for some of the services we provided at Kelling i.e. the extra accommodation services for want of a better phrase, within the basic charge but we needed to provide a top up fee in respect of the most demanding patients. Exactly how this evolved is unclear to me as I was not actively involved in operations at Cawston at any time and had no involvement at all from February 2004 onwards. All I can recall is that Mark Devaney undertook the initial assessments and from that a fee structure was offered to the referring PCT that would be reviewed in line with the patient’s progress.

Having participated in the initial discussions and explained how things were done at Kelling, I left Andrew Breeze, Dominic Wilson and Mark Deveney to implement the strategy.”

In relation to his statement that staff would not necessarily know what each client

Mr Chancellor stated that in relation to his comment in his police statement that

“In a financial sense this is what I would regard as a justifiable extra care charge...”

applied to a specialling regime and that

“It does not apply to the charging regime that operated at Kelling or that I intended should operate at Cawston Park. That, quite deliberately, was more broad brush and was certainly not intended to be a charge made in respect of specific episodes after they had occurred.”

In relation to his statement that there was no difference between specialling and extra care apart from the wording;

“I think this passage could be misconstrued and needs some clarification. At a high level financial level there may be no practical difference between the allocation of additional resources under a specialling system and an extra care system save the name that is given to the system However, for the reasons I have given in my statement, and above, there are significant differences between the two approaches, both in a Clinical sense and in the way in which the service is charged. At a clinical level specialling was about the abandonment of clinical intervention and the imposition of a regime of physically controlling the patients’ behaviour, whereas the Extra Care approach was about applying extra clinical resources to the most demanding patients. At a charging level, there was a conscious disconnection between the decision to apply an Extra Care charge - which was based on a risk assessment, and the decision to deploy particular resources - which was based on actual clinical need.”

In relation to his comments about charging for double extra care and also when patients were on leave he stated;

“I am obviously in no position to comment on specific cases of charges for Extra Care at Cawston as I was not personally involved in any of those decisions. However, on reflection I don’t think I can fairly suggest that Extra Care charges were only justifiable in respect of ad hoc exceptional events and that I would not expect an Extra Care charge to continue for longer than a month. The system established at Kelling involved, as I have made clear in my statement at page [7], an assessment of the patient at the admission stage and was reviewed every three months. So if the Kelling model had been replicated at Cawston then the minimum period of Extra Care charge would have been three months. It follows that it might have been the case that a patient might have been given home leave at a time when they were subject to an Extra Care charge. The central point is that the Extra Care charge was not trying to replicate charges for specialling; it was an individually negotiated fee charged in respect of patients who, on assessment, presented a probability that they would absorb greater resources. In essence it was a way of charging more for the more challenging patients.”

The investigating officers did not have this very significant clarifying statement. Had Mr Chancellor said what he said in the clarifying statement when he was interviewed or within his police statement then the investigating officers and in particular DS Brownsell could be seriously criticised for not recognising its importance and referring to it in the summary. However he did not and the statement goes far beyond clarification of what was previously a damaging statement for the Claimants. It was the view of Prosecuting Counsel that his evidence at trial undermined a central part of the case and that he was a witness whose evidence changed from that set out in his statement. As he set out in his advice of 12^th June 2009;

“Tony Chancellor described extra care as a legitimate charging mechanism applying to those patients who genuinely consumed more resources. He emphasised that extra care did not necessarily involve an additional expense for the hospital rather it reflected an additional allocation of existing resources. This was at odds with the description he gave in his statement. Not only did he validate the concept of extra care but he also gave evidence that the patients who needed extra care received it. He went on to say that he did not consider that nursing staff would necessarily appreciate that a patient they were caring for was in receipt of extra care. This undermined a central part of our case in which we had sought to rely upon the absence of staff knowledge of extra care as evidence that it was not being delivered.”

I found Mr Chancellor to be a witness whose account I could not rely upon in some material aspects. In particular I am satisfied that his recent comments about oppression are an excuse for what amounted to a very significant volte face. I reject as simply untruthful his explanation during cross examination of what he said to DS Frost and DS Fernandes as sarcasm and irony. He simply could not explain why he did not criticise either DC Baker or DS Brownsell when he had the opportunity to do so within what he knew was an investigation of a complaint, but was then very critical of them in his witness statement in this action.

I do not need to make specific findings about why Mr Chancellor changed his evidence so markedly save that I am satisfied that it was not because there was anything improper or inappropriate about the interview or statement making process.