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Useful guidance on how to conduct adult safeguarding investigations

Our People - Maria Nicholas
26 September, 2013

A Court of Protection case decided earlier this year, in which Guile Nicholas represented the second respondent, has provided useful guidance on what local authorities can be expected to do as part of safeguarding vulnerable adults’ investigations.

The case of HS (A Local Authority v HS (2013) EWHC 2410 (COP) (2013) MHLO 58) concerned a vulnerable young lady with Down’s Syndrome, living first in residential care and then in a supported living placement. The local authority investigated an allegation from care staff that her brother had abused her and found the allegations to be substantiated. Some time later, the case came before the Court of Protection as there was a dispute as to HS’s capacity, and her best interests particularly in relation to her contact with family and her residence. The family at this juncture did not even know any allegations had been made, let alone investigated. The allegations emerged during the course of the proceedings, and it became apparent that the allegations had essentially lead to the current situation of restricted contact between HS and her family, albeit her family had not known that was the reason.

A three day fact-finding hearing was scheduled to determine the truth of the allegations. Just days before the hearing was to be held, the local authority agreed that the allegations could not be substantiated and withdrew them. The fact-finding hearing did not take place, and the case continued as one of determining HS’s best interests.

Nonetheless, HS’s brother and the Official Solicitor, who was acting as litigation friend on behalf of HS as she lacked capacity to instruct a solicitor herself, made applications for their legal costs against the local authority. They claimed that the local authority should pay all of their costs relating to the preparation of the fact-finding hearing, but essentially all of the legal costs from the start of proceedings to the moment when the local authority withdrew the allegations.

The Court awarded both parties their costs, with £35,000 to HS’s brother and £53,000 to HS, through the Official Solicitor.

In coming to this decision, the Court commented on the unsatisfactory evidence initially relied on by the local authority such as reliance on non-contemporaneous notes, and inconsistency in the records, nothing that “the evidence is so inconsistent as to be almost worthless” [paragraph 94 of the judgment]. Unsurprisingly, the Court also took a very dim view of the fact that HS’s brother, or father, had even been informed of the allegations and had had no opportunity to respond to the same. Findings were made against the brother without him even being aware there had been an investigation. District Judge Eldergill noted that “there was a prolonged failure on the local authority’s part to recognise the weakness of its case. The allegations were vague and insufficiently particularised. The ‘evidence’ in support was manifestly inadequate. It was internally inconsistent and unreliable. The truth of what was alleged was assumed without any proper, critical, analysis.” [paragraph 188].

This case serves as useful guidance therefore on how safeguarding matters should, or should not, be handled by local authorities, and a reminder of the consequences of not getting it right.

Link to judgment.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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