[2025] EWHC 2684 (KB)

In 2003 Ms Todd held the post of senior specialised services commissioning manager for Norwich Primary Care Trust and has been in post for four or five years.

Ms Todd provided a statement to Operation Genus on 17^th May 2006 and statements to Operation Meridian on 5^th and 7^th September 2006.

It is the Claimants’ case that up to this stage,

“The evidence provided by Ms Todd was that her perception was that the extra care charge was legitimate.”

On 12^th May 2007, Ms Todd was arrested for perverting the course of justice and it was later decided on 19^th November 2007 at a case conference with Mr Tarrant that Ms Todd would be interviewed under caution in respect of conspiracy to defraud The notes of that case conference, at which a number of officers were present, stated.

“It was agreed that insufficient evidence was available against her to proceed on the present allegation, but, before she can be considered as a Prosecution witness, there are a number of additional points that need to be tidied up.

…

In the circumstances, it was agreed that she should now be interviewed under caution for conspiracy to defraud and, depending on the outcome; she could then be approached as a Prosecution witness.”

On 17^th December 2007, Mr Brownsell went to Ms Todd’s home address with DC Horsburgh and told her that she was to be subject to no further action “(NFA”).

It is the Claimant’s case that the purpose of the Defendant’s officers in arresting Ms Todd, and then in Mr Brownsell attending on her personally to notify her of the NFA decision, was to put pressure on her to support the prosecution case. As Mr Warnock correctly observed;

“This was a serious allegation, not made in any pleading, nor foreshadowed in any witness evidence or the Claimants’ opening, let alone supported by a statement from Ms Todd herself…”

It is also the Claimants’ case that the pressure placed on Ms Todd had its intended effect because, just a few weeks later, on 24^th January 2008, Ms Todd provided another statement to Operation Meridian which was;

“… much less positive about the extra care charge.”

Given the issue raised it is necessary to set out in some detail what Ms Todd stated within the fourth witness statement of 24^th January 2008. She stated:

“In my role I managed all the contracts for out of county placements with private providers in hospitals all over the country…I had anything up to 80 mental health or learning difficulty patients out with private providers at any one time, and then there was the nursing home patients on top of that…Sometimes I would only be using 20 providers but a provider might have more than one unit or hospital…The national service framework issued by the NHS decreed that we should treat patients as close to their home as possible so I was always looking for ways to get patients back to Norfolk as quickly as possible within the scope of their treatment. So in reality if there was a local provider who was suitable for a particular patient I was almost duty bound to use them if I could. In order to pay for the treatment of these patients my spend in 2003 was about £6 or £7 million and it just increased year by year till by 2006 if you included the forensic patients as well the spend was up to about £13 million.

…Robin Brook was my immediate boss but my responsibilities had been given to him and he already had a full work load and he did not have the time to manage the job properly any more than I did…I would normally work a 60 hour week. This was just to keep up with the work load and all I was really doing was fire fighting. I did not have the time to get ahead or have a chance to improve systems or procedures, If I had had more time I could have visited providers before I placed patients with them and then working with them to get more patients there rather than always reacting to the latest problem.

…All of the patients had some kind of agreement saying who would be providing what and who would be paying. We had our one and only full service level agreement with Cawston Park as we were block purchasing beds and we were trying to plan and develop a service. When Cawston Park first opened it was for a particular type of patient and we expected them to move through their service…With Cawston Park under the service level agreement we initially block purchased 6 beds but they very quickly became full so I think we increased it twice we went from 6 to 9 and then finally we went to 15 beds…The SLA was negotiated and agreed by myself with the provider in this case Chancellor Care Ltd. In the case of Cawston Park I was able to visit before they even opened. They invited Robin Brook to come and have a look and at the last minute he asked me to go with him and see what they were intending to offer. He was there for the first meeting when we negotiated the 6 bed contract, and he came out there with me when we reviewed the situation after about a month or so but he did not come again and was not there when we renegotiated for the 9 and 15 bed agreements, I was on my own when I negotiated these. The NHS has a standard Service Level Agreement on their website and I downloaded this and adjusted it to meet the needs of our arrangements with Cawston Park…The agreed SLA was then signed by me and a director from Chancellor Care Ltd. The SLA is time limited so the first ran to the end of March so over 12 months then the next was for twelve months in line with NHS guidelines the 3rd was for 2 years with a clause to allow for a price change after 12 months. This agreement was a big part of my expenditure starting at £800,000 when we had 6 beds rising to £3.7 million with 15 beds.

Chancellor Care Ltd at Cawston Park had a concept known as extra care and it is the provision of this which is central to the current enquiry, but it is also our understanding of this concept that is important to the investigation. Initially when we first negotiated the contract I assumed it would be like “specialling” as it exists everywhere else. It would be charged as and when necessary and it would be for a couple of hours or a day or two or even a week. It was not until we got the first couple of sets of invoices which came out monthly that we found that people whom we assumed were on “specialling” which we now know as extra care were on it permanently, 24 hours, 7 days a week and were on it all month. This was totally new to us. When Robin and I first negotiated the contract they talked about “specialling” at £14 per hour. At that time other places were charging £30 - £32 per hour so this seemed like a good saving, when we discovered it was on permanently it did not seem such a good deal. Initially we thought that as we had negotiated a 6 bed contract so the core cost was cheaper than a lot of out of county placements and the “specialling” cost was half that of other providers we saw huge savings for the PCT. At the first meeting at Cawston Park I do not recall any mention of extra care and they talked about “specialling”. Paula was at that meeting and took notes, and there was no explanation by Chancellor Care as to what their idea of “specialling” was or how it differed from the normal. I do remember that at that meeting there was Andrew Breeze, Dominic Wilson, Simon Barker and Mark Deveney and maybe some of the senior ward staff, but definitely those four. I do know that “specialling” in general was such a nuisance and so expensive that we would always have asked the provider what they charged for “specialling” but at that stage there was no indication that Cawston Park was any different from any other provider and extra care as a concept was not mentioned. I thought we would be charged on an hourly basis for periods of up to a week while a patient settled down. When the first invoices came in we would not have picked up on the situation straight away, and anyway they were a brand new unit but I do recall Paula spoke to me early in 2004 and told me people were being charged for “specialling” over 24 hour periods, and I did go to Cawston and I remember being told that it was not “specialling” as you would find elsewhere it was very different. I got some kind of explanation from either Dominic or Andrew. I would always see either Dominic or Andrew. Andrew would never discuss finances without Dominic being there, sometimes Mark Deveney would be present but always Dominic or Andrew or both.

Following our discussions and negotiations with the Directors at Cawston Park I drew up the original SLA, in which the terms and conditions were a direct lift from the standard SLA on the NHS website. In that first SLA the original core cost per bed was set out as a result of Norwich PCT buying a 6 bed rate. Also in this SLA under costs is the cost of “Special support” at £13 per hour. “Special support” is not a term that I would use and it would have been inserted at the request of Chancellor Care but I understood it to be an alternative term for “specialling”. The routine is that I draft the agreement and then send it to the provider, they indicate any changes or alterations they would like to be made and when both sides are in agreement the final draft is signed by both sides, I sign the SLA on behalf of the PCT. I now know that I did not have the authority to sign an agreement of this value, but I was not aware of this at the time and was acting in good faith. By the time the 2nd SLA was drafted in the early part of 2005 I was aware of the true extent of “special support/extra care” and that SLA should have reflected that, however, it was near the end of the financial year and we were under pressure and with too much work and too little staff the job was not done properly. I simply printed of the previous agreement then having changed the dates and amended the costs it was signed off. The final SLA which was drafted at the beginning of 2006 includes the term extra care and shows it being charged at a daily rate of £340.56 per day. The agreement also included a definition of extra care, and the concept is explained. This alteration and additional information was at the request of Dominic Wilson, and I recall he emailed the explanation to me for its inclusion in the document. This significant amendment was made at his intervention and request and left down to me the 3rd document would have mirrored the first two because of lack of time and resources.

Once the true facts relating to “special support” became clear, and I found that we were paying huge amounts of money for the more difficult patients that we had at Cawston Park I found myself in a very difficult position. I had just moved a number of patients into Cawston Park and back to Norfolk from all over the country, and I could not move those patients again away from homes and families solely on the issue of cost. NHS guidelines advise that patients should be treated as close to home as possible and local clinicians wanted to use Cawston Park for their patients it was convenient and easy for them. You cannot argue with a Consultant who wants to use Cawston Park even though you know there is somewhere else that will not charge for “extra care”. So whilst there were financial considerations I was under pressure from other areas to send patients to Cawston Park. My initial reaction to the full understanding of “extra care/special support” was to ask Cawston Park to identify at the assessment stage any patients who would attract an extra care charge and in those instances I would look for another provider wherever possible. We tried to monitor the situation, we were not happy about it, and we tried to not place patients there who would require “extra care”. If we had known from the outset the true circumstances relating to these additional costs then we would not have placed the more difficult patients at Cawston Park, and we would have challenged these charges at the negotiation stage. If we had sat down with them at that first meeting and they had explained to us then their concept of “specialling” or “extra care” then we would not have agreed the Service Level Agreement on those terms. We would have challenged them then and if they had not moved on this we would have looked more closely at the patients we placed there…

I believe that we were either misled or that we misunderstood their concept, but you do not misunderstand the term “specialling” they were using it in a way we would not expect. But the idea of extra care was never explained to us at the beginning. They used the term “specialling” but it proved to be very different to what we understood as “specialling”. They were not explaining their idea of “specialling” and they were not trying to sell it as a positive idea as you might have expected. I remember that they used the word “holistic” an awful lot. They talked about looking after the whole being but that concept was being used by a lot of other providers. I had other providers who were providing a holistic service who were not charging for “extra care” or “specialling” they were charging a daily rate. In hindsight if I had known and I am sure if Robin had known what their “specialling” was we would never had agreed the contract on those terms.

I received from Cawston Park written reports detailing who was in receipt of “extra care” but there was no evidence to us as to what was being provided for that. If you are lucky and you visit a unit and you see a patient who is meant to be receiving one to one or two to one nursing or some other kind of additional care and there is only evidence of one member of staff present then you know they are not getting the care being charged for, but with patients all over the country and even those at Cawston Park you did not get to them very often and when you go it is a planned visit. You are going for a CPA meeting or an extraordinary meeting so there is no way of knowing exactly what is being given you have to trust providers. You have to have trust in all of your providers that they are providing the service they are charging for. In the case of “specialling” in the traditional sense you are invoiced for known extra resources over a set period of time, however, in the case of “extra care” it is a daily rate added on and you do not know what provision they have had for that daily rate and you have to trust that they have had something different from the patients on the standard rate….I never had meetings with Care Coordinators in order to explain to them the concept of extra care at Cawston Park, and if they saw the term “extra care” they might link it to “specialling” but they would not necessarily have had it explained to them as it was explained to me when we queried the situation back in 2004…

When we realised the true nature of “extra care” we could not then move those patients, and in fact there was probably no where else that would take them…In my experience I have not come across the concept of extra care either under that title or by any other name in any other facility. The closest scenario to this was that certain providers assess patients on their specific needs and then charge accordingly. So one provider might have a patient at £250 per day and another of our patients at £700 per day because that patient’s needs were so much greater, but we would always know in advance what the costs were going to be. Also I do not see how their concept of “extra care” could work with the numbers of patients they had in receipt of it. If there were 13 “extra care” patients and they all needed therapy or the attention of senior members of staff at once it would not work. You might manage in a unit of that size if you had 3 or 4 on “extra care”. Over the course of time the number of patients on “extra care” fell away.”

I have taken into account the entirety of Ms Todd’s witness statements and also the evidence of DS Brownsell and I do not find that the evidence before me supports the Claimants’ serious, but unpleaded, allegation that DS Brownsell deliberately and maliciously engineered pressure upon Ms Todd to secure “more favourable” evidence to support a prosecution set out in the fourth statement.

The allegation leaves hanging the obvious issue of whether what Ms Todd set out in her fourth witness statement was her true recollection or not. The Claimants have not alleged that she lied. If her evidence in the witness statement was truthful the obvious question is how this allegation materially advances the Claimants’ case on the two causes of action relied upon as it can hardly be argued that she was suborned?

Ms Todd gave evidence at trial but I have not been taken to her evidence and am unaware whether it was suggested to her in cross-examination that she had “changed” her evidence (and if so what her response was). There is no hint of such a line of questioning within the documents produced by Prosecuting Counsel or within the evidence of Mr Bott KC.

I also do not accept that it is a fair or accurate overview of Ms Todd’s evidence that in her first and second statements that she considered the extra care charge to be legitimate (or that her evidence was favourable to the claimants) and that the fourth statement constituted a volte face. In the statement of 17^th May 2006 whilst she explained what she (then knew) to be the “Chancellor care method”, she stated that after the summer of 2003;

“…I visited the provider to discuss what type of service they would be providing and to view the provision. Extra care was not explained at this stage and I was not shown how the extra care model might work or who might be involved…”