[2025] EWHC 2684 (KB)

I shall first set out the details of Mr Deveney’s complaints/disclosure and his evidence at the criminal trial in order to provide context for the matters addressed by those who provided statements in this action. In so doing (and as I shall do when reviewing all of the evidence), in order to avoid the need of extensive cross referencing and to make this long judgment more easily readable, I shall weave in factual findings that I have made having considered the entirety of the evidence presented to me.

Mr Deveney did not provide any evidence in this action.

In his witness statement signed on 6^th April 2006 Mr Deveney acknowledged that he was suspended when it was discovered by Mr Breeze that he intended to set up his own independent facility and had developed a business plan. He stated that he resigned because it was his belief that he was going to be dismissed and that subsequent to his resignation Chancellor Care Limited made unsubstantiated reports of misconduct to the Healthcare Commission and the Nursing and Midwifery Council.

Mr Deveney stated that he had been unhappy since approximately December 2004 with the fee structure at Cawston Park. His perception was that the care delivered was inferior to that delivered within good NHS facilities despite significant fees being charged to the commissioning authorities. He said he was also unhappy with the levels of staffing, the quality of staff and the absence of sufficient senior clinicians to support the junior grades. He stated:

“Having left the employment of Chancellor Care Limited in December 2005 I remained unhappy with regard to charges being levied for which I knew no service was being provided.”

He stated that he considered discussing it with the commissioning manager for Norwich PCT but he was unsure that the conversation would remain confidential and in January 2006 some colleagues working in the NHS advised him to discuss the matter with the NHS Corruption and Fraud service. He also stated that within his initial report to that service he outlined his concerns with regard to fees charged for services that were not delivered having discussed the matter with Paul Vincent and Lisa Vescio. He indicated at that stage that they would give statements if necessary (both of these individuals having been involved in the plan to set up an alternative facility).

Mr Deveney stated

“I was particularly concerned with regard to charges made for extra care. I was aware that these charges were being made at a rate of £330 a day on top of the standard fee and in one case at £660 a day. I had been informed and repeatedly reminded by Dominic Wilson and Andrew Breeze that financial projections for the company required 12 extra care charges to be made on the Cawston Park site. Charges for extra care were purely a financial/accounting exercise and bore no relation to any increased level of service to those particular patients. Clinical staff working on the wards were unaware of which patients attracted charges for extra care. It may be significant to note that from November 2003 to April 2005 the standard staffing on each unit during the day provided for only one nurse. This was a constant source of disquiet and irritation to both myself and the unit managers who reported to me….The support staff who were recruited to support the nurse on duty were largely inexperienced and naive to the environment of working in which they found themselves. From November 2003 to August 2005, the medical establishment of Cawston Park was one doctor, the medical director Dr Simon Barker. He, like me, was on duty for out of hours periods and was the sole psychiatrist working at the hospital…given the paucity of service in both medical and senior nursing staff it was difficult for me to see how any charges for extra care could be justified. I was charged by Andrew Breeze and Dominic Wilson with producing clinical reports on each patient to accompany the invoices sent (sic) the commissioning PCTs. I was encouraged by these individuals to identify factors in patient presentation which would indicate a need for extra care. I did this as a matter of routine. I was aware that, despite the factors identified by me in the reports, no additional care was delivered. I have made my concerns known to Andrew Breeze and to Dominic Wilson, as well as to Dr Barker on numerous occasions with regard to these charges. I was informed on numerous occasions that these charges were necessary on twelve patients to meet financial projections.”

Mr Deveney also made the following allegations in his first witness statement;

Mr Deveney also made references to specific patients as examples.

Mr Deveney signed a second and more detailed statement. He stated that once Tony Chancellor left the company life became difficult and he had parted company philosophically with Andrew Breeze and Dominic Wilson because he felt they were exploitative and the aim of the company was to make short term profit. He did not think it had anything to do with patient care or the long term building of a decent hospital or a decent staff and he did not like the way in which they were charging for fees particularly for extra care. He stated;

“…I did not like the pressure they put on me to put extra care charges on, and over the months I became aware they were altering my clinical reports.”

And

“It was made extremely clear to me by the directors Andrew breeze and Dominic Wilson that extra care was an accounting exercise, This is where we started to part company. Unlike in the NHS I have no control over the resources and had I explained to my staff the philosophy behind extra care and showing them how to utilise the additional resources they would have said what additional resources because there were not any extra resources.”

Mr Deveney explained that they (the Claimants and himself) were very conscious of those PCTs who were strict on cost and those who were not so strict. Hertfordshire and Suffolk were very sharp but Norfolk (Linda Todd) was very weak.

As regards his own actions Mr Deveney stated:

“…I was complicit in this decision making process because I wrote reports which justified extra care when no extra care was required. I was often told that it was necessary to have I think 12 patients on extra care at anytime for the hospital to achieve its financial projections.”

And

“Patients were reassessed on a monthly basis and I would write monthly clinical reports. These reports were written on the work computer and filed on a particular drive…so they were available to Dominic Wilson…The clinical reports that were submitted were either correct in that that was a need for extra care or it was constructed to justify an extra care charge, but whether or not extra care was delivered is another matter because in my opinion we never accessed the additional resources to provide extra care. On some occasions…(the Claimants)…would come back to me to adjust my report slightly to support the request for extra care charges and then I discovered from Paul Vincent…that they were changing the reports before they were sent out to PCTs.”

And

“I was complicit for so long because whilst I realised at the time that what I was doing was morally wrong I was an employee, I was doing as I was told and Chancellor care were paying my salary.”

He repeated that unit managers where never made aware of these extra care charges and therefore were never in a position to access additional staff resources in order to cater for those patients with more serious problems. This was indicative of the money making philosophy that had grown up amongst the board of directors and that “extra care” was not the clinical resource he had set out to achieve, but had become a financial tool. Mr Deveney stated:

“Whilst the philosophy of extra care required extra resources to be available the actual staffing levels at the hospital were in fact very low and at times sometimes dangerously low.”

Significantly given the issue raised in this case and what was to transpire at the criminal trial Mr Deveney set out his view of another manager, Mr Cooper;

“Gary Cooper as I understand was sourced through an agency and interviewed at a motorway service station by Andrew Breeze and Dominic Wilson. As soon as this man arrived it was just incredible. I had worked for 18 months developing a very laid back approach, and as soon as Mr. Cooper arrived he was banging on about staff wearing jeans…I found him very rigid like an old school nursing officer from the 1980s. He came in and upset everybody from the unit managers down, and it is my belief that the recruitment of Gary Cooper was intended to hasten my departure from Chancellor Care Limited. This was based on the fact that quite clearly we were not going to get on and yet we were supposed to be working very closely together as the clinical manager and the operations manager. If you had gone out to recruit somebody I was not going to get on with then you could not have done a better job. We did not have a good working relationship on the basis of a complete clash of culture, beliefs, personalities and philosophies.”

As regards Dr Barker he stated:

“He thought Breeze and Wilson were running the hospital in a draconian manner, and it irritated him that the clinical decisions made by him were always questioned by Dominic Wilson as the finance director. I had discussed extra care charges with Simon, and Simon took the view that the situation was absolutely ridiculous and people should not be doing that but even when he was a director of the company he tended not to get involved in the business side of things.”

Mr Deveney stated that in about August 2005 he started to develop (along with Lisa Vescio) a business plan to open a small mental health unit elsewhere in Norfolk. He stated that he believed that since about March 2005 the Claimants had been looking to remove him because of the difference in opinions over staff numbers and technical care, his close relationship with Ms Vescio and because he had become a thorn in their side. He acknowledged that he gave the Claimants ammunition to get rid of him when he was discovered photocopying his business plan on their machine but said that the actions following his departure were completely disproportionate. In particular he denied the accusation that he used a company computer to access pornography. He believed the report to the Nursing and Midwifery Council to be a vindictive attempt to prevent him from working in the nursing field. He stated that they had also issued references to a nursing agency that made unsubstantiated allegations of theft and fraud and that it was this vindictive attitude that finally persuaded him to report his concerns over the inflated charges at Cawston Park to the NHS.

Mr Deveney’s motives for disclosing what he said was a fraud were known by the relevant officers from the outset of the Police investigation (as acknowledged at paragraph 82 of the Particulars of claim). It was known that he had been caught trying to set up a rival business and that he had reacted to complaints made about his conduct.

In my judgment it is clear that initially the police investigation proceeded, very reasonably, cautiously as it was recognised that Mr Deveney was implicated in the alleged fraud which he had disclosed (as he was to state he was “complicit”). However, as I shall set out in due course I find as a fact that it was the belief of all of the officers concerned throughout the investigation that despite the fact that he was “tainted” (to use DS Brownsell’s expression) his evidence on the central issue of a fraud was credible given the other evidence which was obtained as matters progressed. Put another way no relevant officer ever formed the view that his evidence was “incredible”.

It was obvious to the officers at the outset that Mr Deveney was a central figure at Cawston Park and central to the charging of extra care. Indeed it is the Claimants’ pleaded case in this action that Mr Deveney was responsible for determining to which patient placements the extra care charge would apply, having consulted with Dr Barker and any other clinician with responsibility for the care of the patient, (including the Commissioner’s own clinicians). Also that responsibility for agreeing the cost would fall to Mr Deveney and/or Mr Breeze, often in consultation with others including Dr Barker, “prior to the patient being admitted”.

No criticisms were made during questioning of the Defendant’s witnesses or submissions, of the way the statements were taken from Mr Deveney or about their detailed content e.g. that it was somehow manipulated or tampered with (indeed no witness was asked about the detailed content of his statements). Rather the broad/overarching argument advanced on behalf of the Claimants was his evidence should have been considered and/or was actually considered as not credible. For reasons which I shall set out in due course I reject that submission. The very serious allegations which he made (and backed up by signing witness statements) were not inherently incredible and from the outset it was reasonably considered by the NHS Fraud Team and the investigating officers that there was some support from other sources for what he was stating.

Significantly in terms of the two causes of action in this claim Mr Deveney did not retract, or significant modify, his statements/proposed evidence at any stage during the investigation and maintained his evidence through cross-examination at trial.

During the life of the police investigation Mr Deveney was to a degree supported on several issues by the evidence of others; including at the outset Ms Vescio and Mr Vincent (see below), members of staff, PCT Commissioners, and also what was contained in documents.

In the summary DS Brownsell gave an overview of Mr Deveney’s allegation and stated:

“NB Most if not all of what Deveney initially alleged has been corroborated by other witnesses or exhibits seized.”

It was suggested in cross-examination of DS Brownsell, DC Baker and DC Flynn, that they believed/knew that Mr Deveney’s account was “incredible”. This was denied and in my view all available evidence very strongly points the other way.

A fracture line running through the Claimants’ case, as highlighted by questions of officers suggesting that they believed that Mr Deveney’s account was not believable, resulted from the obvious tension between the assertion that there was on the one hand a “mindset of guilt” i.e. officers formed a closed mind to the potential of the Claimants’ innocence and the assertion that the officers did not have an honest belief in guilt i.e. they believed in the Claimants’ innocence (and were doing senior officers’ bidding in trying to secure a conviction).

The relevant officers’ analysis of, and subjective belief in relation to, the evidence of Mr Deveney is a central (although not conclusive) factual issue when determining the overall honest belief of the officers, as to whether there was a case which should proceed.

The summary gave disclosure of Mr Deveney’s potential motivation for making a complaint:

“Deveney was employed by Chancellor Care Limited as head of care until he resigned following an internal investigation in to him setting up a rival healthcare venture. The company made complaints about Deveney to his professional body and latterly provided discreditable work references. This inspired Deveney to contact the NHS Fraud Dept, He made the following allegations…”

And

“Deveney stated that he was complicit in seeking patients to place at Cawston Park who would attract an extra care charge, and that he was complicit in the running of the “extra care” fraud. He has, however, not made any gain from this other than the wage he was paid. He alludes to the fact that he “blew the whistle” in an act of revenge how he perceived he was treated by Cawston Park management after he resigned (N.B. Most, if not all of what Deveney initially alleged has been corroborated by other witnesses or exhibits seized).”

The MG6 written by DS Brownsell stated;

“As can be seen Deveney is the whistle blower. Seemingly he is what his detractors say; a larger than life character, egotistical, articulate and very full of himself. He has been reasonably candid in that he says he was complicit with the alleged fraud but he did not receive anything for this involvement.

There has been much criticism from Breeze and Wilson and a few witnesses over Deveney allegedly having an affair with Lisa Vescio. Apparently it was unprofessional and led to nepotism in that Vescio had a meteoric rise in a relatively short time from nurse to unit manager. Vescio is now Deveney’s business partner in their new venture. Deveney and Vescio have denied having an affair to the enquiry team, not that it matters to the case one way or another. As an aside, there have been rumour and speculation as we have made our way through the witnesses to the effect that Wilson and Breeze have been having their own liaisons with staff. Rumour has it that Wilson was entertaining Katherine Ibbotson and Breeze was comforting another member of staff.

Deveney has been reasonably honest in saying that the reason he blew the whistle was as an act of revenge. He’d been caught out by Breeze printing off his prepared business case at work. He and Vescio were suspended prior to an internal inquiry. Deveney and Vescio resigned before they were sacked. Breeze accused him of accessing pornography and swearing at a patient which Breeze reported to the nurses’ professional body – The Nursing and Midwifery Council. This has been investigated by them and was found that there is no case to answer. Breeze also effectively cut off any likely avenues of employment for Deveney with strongly worded references. Deveney understood that he would have been sacked, but viewed Breeze’s reaction to him as totally disproportionate. He decided to put the knife into Breeze, Wilson and company and made a phone call to NHS Fraud confidential reporting line.

What’s not mentioned by Deveney but will undoubtedly be picked up in any trial is that by damaging Cawston Park his new venture ‘Milestones’ will be in a better position in what is evidently a crowded market place within the private mental healthcare sector. Deveney has touched on this in conversation only in the sense that what he provides at Milestones is totally different to Cawston Park.

Deveney is aware that should this go to trial he will find himself as the star witness being savaged by an expensive barrister. I think his personality is such that he would probably prevail in that sort of environment.”

In my judgment these documents combine to give a reasonable, realistic and (perhaps most importantly) honest assessment of the matters which could undermine Mr Deveney’s credibility. DS Brownsell was not cross-examined on what he had set out in the summary and MG6.

Mr Tarrant independently formed a view that Mr Deveney’s evidence on the central issue of a fraud was credible given the other evidence which was obtained and was capable of supporting a successful prosecution. He stated in his advice note of 19th November 2007;

“Any evidence given by Deveney must be treated with reservation given his motivation for becoming a complainant. However a very detailed inquiry has revealed that the nurses and support staff did not know which patients were on extra care which tends to support the assertions made by Deveney.”

This was repeated in the review note of 8^th February 2008 in which it was also stated:

“It will be contended below that there is a considerable amount of evidence to corroborate the account given by Deveney. Even so he is a very important witness because he was personally involved in the mechanics involved in the provision of “extra care”. The general impression is it Deveney was a strong and arrogant character who did not hesitate in expressing his views.”

(He also noted that Mr Cooper said that he was “a very charismatic man with a massive ego).

As regards the evidence of Mr Deveney, his motivation for whistleblowing (as he effectively stated it was) and the concerns about his credibility I can see no realistic grounds for arguing that Mr Tarrant was deprived by any deliberate manipulation of any relevant evidence, or by having been provided with “slanted” comments in the summary or MG6, of the ability to exercise his own professional judgment as a specialist fraud prosecutor.

When fresh evidence came to light to cast further doubt on Mr Deveney’s character (his dismissal for gross misconduct from a small private health care home as a result of three allegations of misappropriation/improper use of company funds upheld, speeding, viewing pornography and being drunk at work) the police referred it in full to the CPS (a report from DC Horsburgh to Mr Tarrant dated 3^rd December 2008). It did not alter Mr Tarrant’s view (or that of Prosecuting Counsel).

Having been “fully sighted” on all credibility issues trial Counsel formed the view before trial (and indeed after Mr Deveney gave evidence) that Mr Deveney could be believed by a jury.

Trial Counsel’s analysis was as follows:

“Mark Deveney was a strong witness. The prosecution was allowed by the defence to take him through the extra care patients individually although he had made no statement on that topic. He came over as a highly competent professional telling the truth. He was attacked but he was left - apparently - not seriously marked. He had strongly rebutted the accusations of dishonesty in the period following leave the hospital.”

It is noteworthy (as set out in more detail below) that the prosecution case was not discontinued after Mr Deveney’s evidence was given; rather that occurred only after the evidence of others.

Given what was set out in the summary, that Mr Deveney was thought credible by Mr Tarrant and Trial Counsel and maintained his allegations through cross-examination, the suggestion that officers actually formed the subjective view that he was not credible but pressed on regardless (in so doing not only persuading Mr Tarrant but effectively removing his ability to form a balanced independent judgment) was always going to be, to say the least, a difficult one to advance. The reality is that it gained no traction through the hearing of evidence and was very firmly rebuffed by the Defendant’s witnesses. I think that any objective, independent observer of the trial would be truly astonished if my finding was other than that I am entirely satisfied that at no stage in the investigation did any of the officers who provided a statement in this action come to believe that Mr Deveney was not telling the truth on the central issue of fraud. I also see no realistic possibility that any other officers involved in the investigation formed such a view. Indeed I am satisfied that DS Brownsell still believes that there is at least some truth in what Mr Deveney has said about the extra care charges.