Mark Anthony McGhee, The Executor of The Estate of UXA, Now Deceased v Mersey Care NHS Foundation Trust (Formerly known as North West Boroughs Healthcare NHS Foundation Trust)

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Fordham

Introduction

This judgment is a sequel to the judgment I handed down on 21 December 2021 in UXA v Merseycare NHS Foundation Trust [2021] EWHC 3455 (QB) [2022] 4 WLR 30. In that judgment, I explained the circumstances in which I made an earlier Order (15.10.21) containing declarations, by consent, that the Defendant had acted in breach of UXA's human rights. I also explained why I had decided to make a further Order (21.12.21) giving the parties permission to use certain documents other than for the purposes of the proceedings herein, including disclosure to third parties (including media organisations).

Those documents were: (i) UXA's Opening Submissions and Scott Schedule, dated 27 ^th September 2021; (ii) UXA's Further Submissions, dated 11 ^th October 2021; (iii) The Defendant's Skeleton Argument, dated 29 ^th September 2021; (iv) The Defendant's Note on the Draft Order, dated 11 ^th October 2021; (v) The Agreed Joint Psychiatric Statement of the parties' expert Consultant Psychiatrists, Dr Daly and Dr Adshead, dated 28 ^th May 2021; (vi) The judgment in default entered by Master Cook on 12 ^th April 2019; (vii) The Defendant's Admissions dated 31 ^st May 2019; and (viii) the NICHE Report, of an Independent investigation into care and treatment of a service user in Wigan, dated 17 ^th March 2017, in the anonymised form in which it appeared in the Hearing Bundle (excluding the Appendices).

The New Order

The purpose of this judgment is to explain why and in what circumstances I have now, by consent of the parties, made a further Order (the “New Order”) in these proceedings. That was a further judicial act by way of determination on the papers. The Order was sought by virtue of an Application Notice dated 21.4.23, supported by a Witness Statement of that same date. I decided to deal with it on the papers. Nobody sought a hearing and I decided I did not need to convene one. I am satisfied, as before, that it is appropriate in the interests of open justice to give a reasoned ruling, in the public domain, to explain what I have ordered and why.

Notice

The parties have satisfied me that they considered whether any further party or person should be notified and given an opportunity to make representations, before the New Order was made. Having received the Application (21.4.23), I raised with the parties a question about this. That was because of a point which I had seen made in earlier correspondence. The question concerned notification to the Defendant's Chief Executive and Executive Director of Nursing. By letter dated 5 June 2023 I was informed that notice had been given to both of these individuals, with an opportunity to comment, and no representations had been forthcoming. I am content that this aspect has been properly addressed and that no further step is needed.

Context: the SAR

Section 43 of the Care Act 2014 obliges each local authority to establish a Safeguarding Adults Board (“SAB”) for its area. Section 44, entitled “Safeguarding adults review”, then provides as follows:

(1) An SAB must arrange for there to be a review of a case involving an adult in its area with needs for care and support (whether or not the local authority has been meeting any of those needs) if— (a) there is reasonable cause for concern about how the SAB, members of it or other persons with relevant functions worked together to safeguard the adult, and (b) condition 1 or 2 is met. (2) Condition 1 is met if— (a) the adult has died, and (b) the SAB knows or suspects that the death resulted from abuse or neglect (whether or not it knew about or suspected the abuse or neglect before the adult died). (3) Condition 2 is met if— (a) the adult is still alive, and (b) the SAB knows or suspects that the adult has experienced serious abuse or neglect. (4) An SAB may arrange for there to be a review of any other case involving an adult in its area with needs for care and support (whether or not the local authority has been meeting any of those needs). (5) Each member of the SAB must cooperate in and contribute to the carrying out of a review under this section with a view to— (a) identifying the lessons to be learnt from the adult's case, and (b) applying those lessons to future cases .

Section 44(5) of the 2014 Act reflects the importance and significance of a SAR. It imposes on each member of the SAB a duty to “cooperate in and contribute to the carrying out of a review”. It then sets out the two functions of the review: to identify the lessons to be learnt from the adult's case; and to apply those lessons to future cases.

What happened in the present case is that Wigan Adult Safeguarding Board (“WASB”) had commissioned a Safeguarding Adult Review (“SAR”) pursuant to section 44 of the 2014 Act. That is an SAR into the care and support of UXA, she having been a person who before her death had experienced serious abuse and neglect. The view of WSAB was, and is, that particularly considering the Order made by the Court on 15th October 2021, the Board is obliged pursuant to section 44 to undertake a SAR into the relevant circumstances of the care and support that was provided to UXA.

Substitution of Claimant

The New Order directs that the title to the proceedings be amended to substitute Mr McGhee as the Claimant to the proceedings, in his capacity as the Executor of the Estate of UXA. UXA died on 20th October 2022, appointing Mr McGhee in her Will as the Executor of her Estate. This is sought in the Application for reasons given in the supporting Witness Statement. The Defendant consents. I am satisfied, in all the circumstances, that this part of the Order is necessary and appropriate.

Permission to Use Further Documents

The New Order then...