Davis, Winterbourne View and the difficulty of safeguarding

In the light of reaction to Winterbourne View and the Davis case, we should not forget the difficult task faced daily by those responsible for safeguarding vulnerable adults, argues Michael Furminger.

Two recent cases have highlighted the difficult issues faced by those responsible for adult safeguarding.

In the Winterbourne View Hospital Serious Case Review, Margaret Flynn said that “the multi agency response was ineffective” (p130). In short, action that should have been taken was not taken. That view has been widely endorsed.

Conversely, in Davis v West Sussex CC [2012] EWHC 2152 (QB), the judge held that action taken by the council should not have been taken. Comment on Davis has been less prolific than that concerning Winterbourne View but again the judge's decision has been widely endorsed and the local authority's decision making criticised.

At the first Parliamentary opportunity, an adjournment debate on 3 September, Jack Lopresti, the MP whose constituency includes Winterbourne View, said: “It is imperative that local councils act immediately on information and on issues that are flagged up, as they were in the Winterbourne View case, to ensure that we never see such terrible scenes again.” Acting in good faith (according to the judge), that is exactly what officers of West Sussex CC did in Davis.

With respect, it is easy to say in one case that action should have been taken that was not taken and in another that action that was taken should not have been taken. What is much more difficult is the task faced daily by those responsible for safeguarding vulnerable adults – to discern the correct approach between these two extremes, to balance risk against rights.

As Ben Troke and Chris Webb-Jenkins have recently said on these pages, it is indeed time to look again at some of the legal issues involved in safeguarding decisions, some of them very basic.

What follows will focus on Davis but will inevitably touch upon issues raised by Winterbourne View and the wider debate about safeguarding.

In Davis, the council, at a Safeguarding Vulnerable Adults case conference, upheld allegations of abuse against elderly care home residents, required the claimants (the care home owners) to take specified action and said that a number of members of the care home staff should be referred for possible disciplinary action.

The claimants replied that they had not been given any or any proper notice of the allegations prior to the case conference and that the council had not conducted the conference fairly. The claimants argued that (i) the approach adopted by the council breached the requirements of natural justice (in particular the right to be heard) and, (ii) to the extent that the council had breached its own published procedure, their legitimate expectation had been denied.

The judge agreed with the claimants' challenge. He further held that neither the existence of a contract between the parties nor the fact that the council was exercising a safeguarding investigation concerned with vulnerable adults prevented a public law remedy. The decisions of the Safeguarding Conference were quashed.

If vulnerable adults are to be protected and inadequate providers of care rooted out, the message of the judge in paragraph 99 of his judgment needs to be heard by those responsible for safeguarding across the country. “Some of the evidence put forward by the defendant...shows an apparent inability to recognise, even with the wisdom of hindsight, some basic requirements of fairness.”

The message of Winterbourne View and Davis together is that local authorities need to take effective action but that action needs to be legally sound.

Davis, above all, is a simple reminder that the basic principles of procedural fairness apply to safeguarding decisions taken by local authorities. The practices of local authorities vary widely and local authorities should ensure that their procedures at least comply with these minimum standards.

Both Davis and the Winterbourne View SCR have been used to criticise the approach to safeguarding by local authorities. It is easy to point the finger and say that one acted wrongly and the other didn't act at all. In the context of the larger debate about safeguarding, the most important words of the judge in Davis are those to which for some reason no comment appears to have been directed.

It is worth quoting the middle part of paragraph 101 of the judgment in full: “There are obviously great pressures on local authority employees carrying out this important and stressful work. The consequences of a failure to intervene can be grave. Those working in this area face criticism for allegedly interfering when they intervene and for alleged neglect or worse when they do not.”

The reaction to Winterbourne View and Davis illustrate perfectly the position described by the judge.

We all need to appreciate the difficulty of the balance which those charged with safeguarding adults have to draw each day. I do not consider that this balance will become easier as a result of the provisions of the Draft Care and Support Bill. Indeed the balance will likely possibly become more difficult following the eventual publication of the Mid Staffordshire Inquiry report – despite that being concerned with a health provider.

Fundamentally, Davis is a reminder of the difficulty of the safeguarding balance and some of the basic legal principles relevant to drawing that balance correctly.

Michael Furminger is a Barrister in sole practice specialising solely in Community Care Law. He can be found at www.carelawbarrister.co.uk and contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..