[2025] EWHC 2684 (KB)

Mr. Wilson had a background in NHS financial management. He accepted the offer of the position of finance director at Chancellor Care in the autumn of 2003.

He sets out in his witness statement that:

“In or around mid to later 2003 Andrew and I entered negotiations with Norfolk Primary Care Trust (PCT) with a view to taking on our first six patients. Linda Todd was a PCT commissioner who was working under the direction of Mr Brook…

The prosecution case centred around the extra care charging and I will briefly set out the concept of extra care. This, as a term, was coined in October 2003 And I believe came from a discussion between myself, Andrew (Breeze), Mark (Deveney), Tony (Chancellor) and Simon (Barker). Around what would be a charge to be incurred for difficult patients over and above a daily core charge…

…its beginnings arose out of Mark's observation the patients who were particularly difficult would require more input in terms of our resources and so should be charged at a higher rate. So, whilst the clinical practice was completely different to “specialling” we did still need a way for more difficult, challenging patients, to be allocated a higher price.”

And

“My understanding is that extra care charges arose through a variety of different types of input not just physical staff input or presence.”

And

“My original and continuing understanding was that extra care, being a pricing mechanism, was a reflection of the way in which clinical staff were able to manage difficult and sometimes very difficult patients and reflection also of the fact that those patients in other establishments did attract additional charging because of them having to be nursed in particular ways.”

Mr Wilson gave an example of one patient who was awaiting a court hearing and because of this needed an escort when moving around between activities and this required a greater level of resource compared to other patients. He contrasted this with an example of another patient in respect of whom he stated that the indication given to the PCT (Hertfordshire) was that it was necessary to continue extra care to manage a patient and this meant that

“…the clinical team are managing more challenging, higher risk individuals but Mark (Deveney) is not saying there will be specific additional staff dedicated solely to LM because of that. It could be that LM is using more of the existing consultant psychiatrist’s time or similar interventions. Such detail was not required for the report to commissioners which accompanied invoices and the finance team would not be cited on that detail. However it would have been clear from the patients care plan.”

In re-examination Mr Metzer took Mr Wilson to a letter of 2^nd August 2004 Dr Barker wrote to Mr Wesley of the Ipswich PCT about a patient NS and her increased assaultive behaviour stating:

“At that time we completely reviewed her care plan, increased her access to psychotherapy, firmed up some boundaries and increased her extra care with a view to continuing to care for (her).”

Whilst this letter shows that Dr Barker had some involvement in the identification of those who should be subject to the extra care charge it is also reasonable to view this as difficult to reconcile with the suggestion that the existing staffing level was adequate and this patient was simply taking up more of it.

Mr. Wilson said the first time he had a conversation with a Commissioner about extra care was a visit by people from Suffolk commissioners in or around 2005. His recollection is that he told the representative that they did not do 1 to 1 specialling rather “What we do is something different-we call it extra care-either Andrew or Simon Barker or Mark Devaney will explain it but it is to do with not guarding patients.

Given Mr Wilson’s confirmation that PCTs did not ordinarily get any detail of what the extra care charge was for when invoiced (and, it appears, needed an oral explanation) it was unsurprising that Ms Ventham KC pressed him about the service level agreement which was signed by Mr Breeze and Linda Todd (on behalf of Norwich PCT) on 6^th January 2004 which sets out that;

“Special support will be charged at £13 per hour per staff required e.g. 2-1 nursing = 1 hr x £13x 2 staff =£26.”

Mr Wilson was asked how it came to be that this document, given to a PCT, explaining what extra care was (and signed by Mr Breeze) was giving a justification/basis for the charge which was directly contrary to what he had explained in his statement (save for the one example of a patient actually needing an extra dedicated member of staff). Mr Wilson stated that the document, which he conceded was wrong, had come from Linda Todd and recorded an agreement against a background of discussions and “was not a big deal” and was not crucial. Objectively, given the amount of money concerned and that the document set out a set basis for charging which they never intended to follow this was surprising evidence from someone with a career in financial management.

As I have already set out whilst consideration must be given to the content of the witness statement for this action, it is necessary to have close regard to what Mr Wilson said during the investigation (and the balance of the evidence in relation to his involvement). In his first interview, apart from referring to Norfolk SLA, Mr Wilson had defined extra care in his first interview as follows:

“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”

And

“It’s not one to one nursing …it talks about engagement, it talks about the fact we may have to deploy extra resources, it talks about it being for particularly challenging patients.”

Mr Wilson appears to have been making reference to a form of risk premium for some patients. He explained that they:

“Weren’t going to do specialling but were gonna do this other thing which, I understand is a lot more difficult to get your head round than one to one nursing.”