Her treatment at and around the meeting was deplorable: might safeguarding itself constitute abuse?
| Published date | 05 April 2013 |
| Pages | 96-106 |
| DOI | https://doi.org/10.1108/14668201311313604 |
| Date | 05 April 2013 |
| Author | David Hewitt |
| Subject Matter | Health & social care,Sociology |
Her treatment at and around the meeting
was deplorable: might safeguarding itself
constitute abuse?
David Hewitt
Abstract
Purpose – The purpose of this paper is to report and analyse a recent case, in which the safeguarding
procedure adopted by one local authority was criticised by the High Court. It also seeks to identify the
key lessons to be learned.
Design/methodology/approach – The paper considers the judgment handed down in the case, sets
out its key points and seeks to place the proceedings, and the concerns they reveal, in their context.
Findings – In its conduct of one safeguarding enquiry, West Sussex County Council acted unlawfully,
in a manner that breached natural justice and a legitimate expectation to which it had itself given rise.
The case raises a number of concerns. It is also consistent with a suspicion that some practitioners,
and even some judges, have begun to express: that on occasions,the safeguarding process itself might
constitute a form of abuse.
Originality/value – This is believed to be the first time the case has been analysed in such detail, and
also the first time it has been placed in the context of those concerns.
Keywords Local authorities, Social services, Higher courts, Nursing homes, Governance,
Adult safeguarding, Natural justice, Legitimate expectation, Case conference
Paper type Case study
Introduction
In a recent case, the High Court has been very critical of safeguarding measures taken by
one particular local authority. The case was heard in June 2012 before His Honour Judge
Mackie, QC, and judgment was handed down in August (Davis and Davis v. West Sussex
County Council [2012]). The case concerns Nyton House Care Home in Westergate,
West Sussex, which is one of two owned by a Mr and Mrs Davis.
Safeguarding responsibilities
In the area in which Nyton House is situated, it is West Sussex County Council that has public
responsibilities for the protection of vulnerable adults. The court said (at paragraphs [5]-[8]
and [9]-[15] of its judgment) that those responsibilities arise under sections 21(1), 26 and
29(1) of the National Assistance Act 1948 (HM Government, 1948) and Section 45(1) of the
Health Services and Public Health Act 1968 (HM Government, 1968), and that they
are covered by the No Secrets guidance (Department of Health, 2000). The court also said
(at [9]-[11]) that it was accepted, not least in the case of Rixon, that because this guidance
was issued under section 7(1) of the Local Authority Social Services Act 1970 (HM
Government, 1970), local authorities must follow it unless they had good reason to deviate
from it. The way safeguarding responsibilities are implemented in West Sussex is governed by
a multi-agency policy.Again, the court said it was accepted in the case of Lumba that councils
must comply with their policies unless there were good reasons for not doing so (at [16]).
PAGE 96
j
THE JOURNAL OF ADULT PROTECTION
j
VOL. 15 NO. 2 2013, pp. 96-106, QEmerald Group Publishing Limited, ISSN 1466-8203 DOI 10.1108/14668201311313604
David Hewitt is a Judge of
the First-tier Tribunal and
Visiting Fellow at
the Universities of
Northumbria, Lincoln and
Bournemouth, UK.
To continue reading
Request your trial