Jain & Anor v Trent Strategic Health Authority

On 4 July 2005 Master Miller directed that there should be a split trial dealing with the issues of liability and causation. The Claimants say in summary that the decision to apply for an urgent ex-parte order was made without any justification, and the manner of application was flawed by the written application.

The Defendants deny that they owe the claimants a duty of care. They dispute negligence but also argue that even if they were negligent that would not cause the claimants economic loss.

Before coming to the issues, I set out the facts as I find them to be. In 1989 Mr and Mrs Jam bought a substantial house in Nottingham where the business of a Registered Nursing Home was already being carried on, The nursing home specialised in catering for residents who were mentally ill and infirm. Most of them were elderly having an average age of over 80.

The claimants re-named the premises Ash Lea Court. The premises were required to be registered under Section l of the Act. The regulating authority acting for the Secretary of State was The Nottingham Health Authority and the current defendants are their successors and inheritors of any liability. The premises were regularly visited by inspectors employed by the Health Authority, These inspectors were experienced nurses with mental health qualifications.

Ash Lea Court was recognised by placing authorities such as Local Authority Social Service departments as a home which took residents who were difficult to place elsewhere because of their age and infirmities. The nursing home business was successful. In 1993 the turnover was £582,000 and a net profit of~14 1,000,

In 1996 the claimants decided to upgrade the accommodation. Substantial works were planned including the remodelling of all four floors and the installation of a new lift. The building was not designed as a nursing home and these works were necessary to bring the building up to modern standards. More bedrooms were to be provided but the licensed occupancy of 43 would not be exceeded. The claimants object was to reduce multiple occupation. The claimants employed architects whose plans and a short summary of the work were given to the health authority. However, no time scale was given. There were meetings between the claimants, their architects and the inspectors and it was obvious to all that the works would involve inconvenience to the residents. The work was planned to be carried out on a floor by floor basis with residents being moved about the house as required.

The Health Authority’s’ Officers were much concerned about the effect on the elderly and confused residents but made the deliberate decision not to insist on closure or the reduction of numbers during the work. There did come a time in the summer of 1998 when they suggested to the claimants that they should not accept new residents until the work was completed. Mr Jam was quite candid. He was borrowing heavily to carry out this work and he needed the income the residents would produce and he declined to stop admitting new residents. The inspectors at no time translated their concerns about numbers into action by seeking to have the conditions of registration varied, as the Act clearly permitted.

The result was that, in most of the regular inspection reports, the ongoing building works and the dirt and dust inevitably created were the subject of adverse comment. Mr Jam, whom I thought was clearly a truthful witness, said in evidence that the original estimate for the completion of the work was two years. This was never put in writing and the lack of firm or reliable time estimates was the subject of legitimate criticism by the inspectors and by Mr McCaul QC QC, Counsel for the Defendants.

Like any building project there were delays. Two of these were unavoidable. Firstly, the claimants employed a structural engineer whose work was central to the lift project. Sadly, in November 1997 he died, and some time was taken up finding a successor, Secondly, it was found that the foundations were not sufficiently strong to support the lift and considerable additional work was required. Mr Jam did not assist matters by giving to the inspectors, when pressed, optimistic completion estimates which were not kept to and he accepted giving one estimate for the completion of the lift works when he had not yet ordered the lift from the manufacturers,

During the period I am concerned with the Health Authority served two notices under Regulation 15(4) of the Nursing Homes and Mental Nursing Homes Regulations 1984. The first of these was on 14 November 1997, which claimed a failure to comply with specific regulations dealing with fire precautions and fire drills and practices. This notice was served because the Fire Service had received an anonymous complaint as a result of which they had attended at the nursing home and found a number of faults. They informed the Health Authority who issued the notice. Some requirements called for immediate action and some within five days, and there is no doubt the notice was complied with. The second notice was served on 13 July 1998. This arose in the first place from a visit by Mrs Holmes on 7 July. She was very concerned that the building works were affecting the fire safety of the home and contacted the Fire Service.

There clearly was a serious problem at the nursing home. There were two staircases in the house one of which was no longer available as a means of escape because it was blocked off, not only by builders rubbish, but by a dustsheet which had been nailed across a passage way. Mr Stephen Jenkins, Assistant Divisional Fire Officer was called to the scene. He had the power to issue a Prohibition Notice which would have brought about the immediate evacuation of the nursing home. Instead he gave instructions to the builders that they had to provide an adequate access route and certain other works. They assured him that would take some three to four hours to achieve and he decided to let the builders go ahead rather than cause inconvenience to the residents. Another Fire Officer returned in the evening to ensure that the work had been carried out and it had. Although the danger had been averted, the notice complained of it and ordered that the work be done, after the event.

Mrs Holmes made an unannounced visit on 10 August. Her main finding was that the environment for the residents remained poor whilst the building works were in progress. The only requirement made apart from one in relation to physiotherapy was that all staff should receive regular fire safety updates in addition to the statutory fire safety lectures whilst the building work was in progress. There was a recommendation that the proprietors ensure building work “progresses at a satisfactory rate of time”. A feature of all the inspections, announced and unannounced, was that the comments of the residents were favourable. The 10 August inspection was no different. The residents’/relatives’ comments were “satisfactory”.

Mrs Holmes made a further visit on 22 September. The purpose of this visit was to monitor the action taken following the requirements and recommendations made at the 10 August inspection. This was an important visit because only 7 days later the decision was taken to apply to close the nursing home as a matter of urgency. There was no adverse comment on fire safety. Relatively minor matters were dealt with. Of the building work she said in her file note “the building work continues to plod on. The lounge is now created plus three bedrooms. The bedrooms required plumbing and electrics. Overall, the ground floor area still looks very much like a building site.” This assessment accords with the evidence of Mr Jam, which I accept, that the building work was substantially completed by this time. There remained further work which would take some 3 or 4 months to complete.

Mrs Holmes wrote to Mr Jam the day following the inspection. This was a routine letter with no hint that the Inspectorate were contemplating emergency closure. It was, rather, implicit in the letter that the nursing home would continue to operate. Mrs Holmes asked Mr Jam to provide a revised time scale of the building work within 7 days of the date of the letter. The letter concluded “further monitoring visits will be made to the home”. I set out this letter in paragraph 39.

On 24 September, Mrs Robertson was contacted by the Police who told her there had been a complaint over the circumstances of the death of a resident. No foul play was suspected but there was evidence that the nursing staff, and in particular the nurse in charge, might have panicked and not have managed the death appropriately. Mrs Robertson visited the nursing home on 25 September to discuss the matter with the Matron, Mrs Scott and her Deputy Mr Bolan. This incident clearly affected Mrs Robertson’s processes of thought and in part led to the decision to apply to close the nursing home. However, she accepted before the Registered Homes Tribunal that the panicky behaviour of the night nurse on duty was not the result of any failure of management, and her vulnerability to the sight of a dead body was unknown to Matron and certainly to Mr and Mrs Jam. Notwithstanding this, Mrs Robertson thought it right to include this in a memorandum prepared on the 29 September which was one of the few documents placed before the Magistrate.

The memorandum also deals with an incident on the 28 September when Mr Bolan telephoned to inform the Inspectorate that a resident had fallen and her injuries had been treated at hospital. The resident was Mrs FH, 88 years old, who was suffering from dementia. The suspicion of the nursing home staff was that she had slipped whilst attempting to use a commode. Her daughter was not satisfied with this explanation and made a formal complaint about the staff. She also involved the Police.

Mrs Robertson obtained the agreement of ‘Dr Sarah Wilson, Director of Public Health and Mr Keith Sykes, the Director of Commissioning to proceed with the urgent application to cancel the registration. Solicitors were instructed and the next day an application was made to a Stipendiary Magistrate.

The documentation supporting this application -was very limited, The magistrate had before him copies of the two Regulation 15.4 notices and copies of Mrs Robertson’s two file notes made on 29 September, The principal document placed before the magistrate was the statutory Statement of Reasons for making the application. This document headed “Reason for making the application for urgent cancellation” was drafted by a solicitor instructed on behalf of the Defendants. It is a seriously deficient document but it is accepted that the solicitors are not to be blamed. Mrs Robertson saw the reasons in draft and accepted responsibility for them.

I set them out below:

After a two-day hearing on 9 February 1999 a Registered Homes Tribunal, on a submission of ‘No Case’, allowed the Claimants’ appeal and ordered that the cancellation order should cease to have effect. Although the detailed reasons of the tribunal are not in any way binding upon me, they were highly critical of the decision of the Defendants in deciding to apply and of the manner of the application. Mr Ullstein QC submitted that the decision to apply for a Section 30 Closure Order Exparte was not only plainly wrong but also Wednesbury unreasonable. The manner of making the application came in for particular criticism.

There is no doubt that the Inspectorate were much exercised by the effect of the building works on the residents. The Senior Fire Officer, Mr Jenkins commented on visiting the premises for the first time after the works had commenced, that he could not understand how such building work could be carried on whilst the nursing home still had residents in occupation. However, the extensive nature of the works was known by the Inspectorate from the beginning and although it was obvious that there would be some disruption and inconvenience for the residents, they made the conscious decision to agree to the works being carried out while the home was occupied. The work had gone on for longer than they anticipated and longer than Mr and Mrs Jam anticipated but as I have indicated much of the delay was not attributable to anything the Jams did but to outside unforeseen events.

The position was at the end of September, that although the building works were “plodding on” they were near their end. The lift had been installed and the basement completed. Work remained to be done on the ground floor which although it looked like a building site was unoccupied, and a number of bedrooms had to be refurbished. I accept Mr Jam’s evidence that another 3 or 4 months work would have seen the work completed.

The three matters of complaint mentioned in Mrs Robertson’s File Note could not begin to justify an application ‘for emergency closure, Although the application ranged over a considerable period of time, Mrs Robertson said in her evidence that her decision to recommend closure arose from what she saw on 29 September.

Taking the individual complaints in turn.

The complaints in relation to the records did not begin to justify an emergency application. There had, in the past, been legitimate complaints about the records kept by the nursing home and, as’ Mrs Robertson knew, Mr Bolan, a, competent and experienced Registered Mental Nurse, had been employed as Deputy Matron with part of his responsibility being the over-hauling of a records system. This he had been doing since June and, as Mrs Robertson had to accept, had been making a great improvement in the record keeping.

Mr Bolan told me, and I accept, that he explained to Mrs Robertson and the Detective Constable that the security vetting of staff members was not his responsibility and he had no direct access to these records.

The incident involving Mrs PH being hit on the face appears to have been a trivial matter and although it should have been recorded, Mr Bolan and the management could not be criticised because of the failure of the nurse in charge to do so. Mrs Robertson, when making this File Note, had clearly made her mind up that she was going to apply for cancellation and although it is accepted that she was acting in good faith she is clearly guilty of considerable exaggeration. Mrs Robertson gave evidence over the video-link from New Zealand for the best part of a day. She was courteously but persistently cross-examined by Mr Ulistein QC and was understandably defensive about her actions. Although she reluctantly had to accept that she had overstated the case against Mr and Mrs Jam, her bottom line was that she genuinely believed that the residents were at risk. My assessment of her is that she was going on instinct rather than evidence. She had been very forbearing with the Jams and on 29 September her patience snapped, her judgment was suspended and she initiated this ill-judged application. The criticism of misrepresentation and lack of candour in the application is made out in my view.

Paragraph 6 also contains serious misrepresentations. Mr and Mrs Jam provided the Inspectorate with full written details of the work and the stages in which they would be carried out. It is correct that time-scales and completion dates were either not given or wrong. The statement “it is likely that the building works will take 3-4 years to complete” was grossly misleading. It does read as though that time-scale is from the date of the application to the Magistrate, although Mrs Robertson says, and Mr Ullstein QC charitably accepted, that what she meant was 3-4 years overall. Even that is a figure plucked from the air which bore no relation to the actual time the building work would take, The residents were housed in inadequate accommodation although that would have been known to the Inspectorate when they agreed for the work to be done with residents on site. The statement that “there is a consistent failure to ensure that the accommodation is kept safe” is simply not borne out by the evidence.

Paragraph 7 is quite mischievous. The telephone calls were about one resident, Mrs PH. One relative had telephoned about what she claimed was a failure to ensure the adequate care of her mother. But any telephone calls from the staff were not concerned with a failure to ensure adequate care. The staff, as they were under a duty to do, telephoned to inform the Inspectorate of the complaint. By mentioning residents in the plural and by referring to telephone calls from both staff and relatives concerning the failure to ensure adequate care, the Magistrate was being seriously misled. The summary of the inspection under the numbered sub-paragraphs I have already referred to also misrepresents the true situation. The clear implication of 7.1 is that the Registered Nurse regularly failed in her duty, whereas the incident was concerned with one lapse by an experience and trusted employee, as Mrs Robertson knew. Under 7.2 no hint was given to the Magistrate that, with the approval of the Inspectorate, Mr Bolan had been employed since June to improve the record keeping and was succeeding. 7.3 is, on all the evidence that I have had to consider, pure exaggeration.

Under Paragraph 8, Mrs Robertson was driven to concede in cross-examination that this paragraph had nothing to do with the application. The lame excuse is that it was put in as background. As background it has sinister connotations. In spite of Mr McCaul QC’s skilful and courageous advocacy, it tells the Magistrate that Police investigations are continuing into 7 deaths and there have been 12 since February. The reality is the Police were investigating one death, that of Mrs DH. The deaths reported to the Police were reported because the residents who died had not seen a doctor within 14 days of their death and therefore there was a duty to report the matter to the Police and the Coroner. This was done by the nursing home as a matter of routine. The nursing home catered for the very elderly and infirm and there was nothing surprising or suspicious in the death rate at this nursing home. All of these matters would have been known to Mrs Robertson. It is difficult to understand how she could have let that paragraph remain in the ‘Reasons’.

Quite apart from the misstatements, exaggerations and damaging irrelevancies that the Statement of Reasons contains, it is notable for what it does not contain. The duty on an applicant for an ex-parte order, particularly under the uniquely draconian terms of Section 30, is to present a fair and balanced picture. The nursing home was formally inspected twice a year and each inspection gave rise to a lengthy report, all of which I have seen. In each report, without exception, the views are reported of those residents who are able to give them. They are uniformly favourable, sometimes summarised as “satisfactory” but sometimes, coming from both residents and their relatives, full of praise for the care the residents are receiving. There was no need to burden the Magistrate with copies of all these reports but he could have been told in a sentence or two of the favourable view the residents and their relatives took of the care that was being received.

Although the risks and dangers to the residents are highlighted the Magistrate was not told that not only had no resident been injured as a result of the building works but there was no evidence of them suffering ill health. It is in my view extraordinary that the Magistrate was not informed that a General Practitioner, Dr. Khan, attended the nursing home once a week and more often if required. Never once had he complained to the Inspectorate that the building works were affecting the health of his patients. This would not have been decisive material for the Magistrate but it would have put him on notice that there was an arguable case against the summary closure of this nursing home.

Lastly, the magistrate was not told of the detail of the inspection by Mrs Holmes on

This letter was the last Mr Jam received before the closure. Only 7 days before this application to the magistrate, the Inspectorate was writing a routine letter, asking for

Mr McCaul QC described Mrs Robertson as a committed, dedicated member of the Health Authority staff who genuinely considered the residents at serious risk. He recognised there were deficiencies in the Statement of Reasons and acknowledged that paragraph 8 looked sinister. However, he argued that the decision to apply was a matter of judgment on the part of Mrs Robertson concurred in by Dr. Wilson. As Mrs Robertson put it in evidence “she was damned if she did apply and damned if she didn’t”. Mr McCaul QC said there was a strong case for closure under the “slow procedure”. He concentrated on the evidence as to fire risk and the persistent request for information about the progress of the building works and Mr Jam’s failure to provide information.

The thrust of the defence case on fire risk came from the evidence of Mr Stephen Jenkins, Assistant Divisional Officer, He gave lengthy evidence which is encapsulated in paragraph 3 of his witness statement

“I was involved with the home for five years. Prior to my promotion to Assistant Divisional Officer I was the team leader of the inspection team for the home. During that time the home had demonstrated significant failings with regards to fire safety.”

Mr Jenkins accepted that of the five year period for over two years he did not visit the home after his promotion.

Although many records had been destroyed he accepted that the history of Fire Officers’ intervention at the home was fairly summarised in the Fire Authorities’ own chronology exhibited at 140k to his second statement. It was not a full chronology but it dealt with major incidents and inspections. He accepted in cross-examination that there was a pattern of yearly visits with no attendance for major matters in between. His complaint was that Mr Jam had to be chivvied to comply whereas most nursing home proprietors did not require this. He agreed that after 7 July incident when matters were put right immediately there was no further inspection up to the date of closure.

Station Officer Pickard visited the home on 4 August as a result of the false fire alarm which brought a fire appliance to the home on 2 August, but there was no other record of a visit. The annual inspection would have been due around November 1998. There was nothing to show that after the serious problem in July there was any serious hazard or failure to comply with regulations up to the date of closure.

It is clear that like Mrs Robertson, Mr Jenkins had formed an adverse view of Mr Jam and the way he ran the nursing home. I have already referred to his evidence that he could not believe, on visiting the home after a long interval, that building work was being carried on with the residents in situ. There was no evidence from Mr Jenkins that would justify an emergency closure application or indeed a closure application.

It emerged from Mr McCaul QC’s extensive cross-examination of Mr Jam that he was dilatory in replying to proper requests by the Health Authority for information about the building works. Some was provided, not very promptly. Some of his forecasts of completion of various stages of the building work were proved to be wrong and it was difficult to see what the basis for his forecast was.

A statement was put in by the claimants from Mr Vincent Rutter, the builder in charge on the site. This statement was prepared for the Registered Homes Tribunal hearing. Mr Rutter did not attend despite being served with a witness summons. Very little reference was made to his statement during the hearing and as he was not available for cross-examination I do not give it much importance. But there are explanations in it for the delays, particularly the re-excavation for the lift footings which would have extended the work for two to three months, and the delays caused by having to work round the residents which did not attract adverse comment from Mr McCaul QC. Having reviewed the evidence I am not satisfied that the length of time being taken to complete the works provided any justification for a closure application either urgent or normal.

On these facts I turn to the law. It was helpfully agreed by both leading counsel that ,the law relating to the liability of public authorities in negligence in the performance of their statutory duties is substantially set out in the judgment of Lord Justice Dyson in Carty v Croydon London Borough Council (2005) 1WLR 2312. Lord Justice Dyson prefaced his summary of the law by referring to the judgment of Lady Justice Hale in A v The Essex County Council (2004) 1WLR 1881 p,³³ where she summarised the relevant principles,

“whenever the question of common law duty of care arises in the context of the statutory functions, the public authority there are three potential areas of enquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that parliament must have intended to leave such decisions to the authorities subject of course to the public law supervision of the courts; second, whether even if justiciable it involves the exercise of a statutory discussion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third, in any event whether it is fare, just and reasonable in the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them.”

I interpose there to say that it is not argued in this case that the decision of the Health Authority was not justiciable at all.

If the decision is justiciable, in deciding whether a duty of care should be imposed on the defendant it is necessary to look at the substance of the decision which is being attacked by the claimant (see paragraphs 26 to 28 of Carty). In looking at the decision the principles to be found in Caparo Industries v Dickman (1992) AC 605 should be applied. The Caparo test looks first for proximity, then to the forseeability of damage, and finally whether it would be fair, just and reasonable to impose a duty of care. On proximity Mr Ullstein QC relied on part of the speech of Lord Oliver of Aylmerton in Caparo. At page 632 he referred to Lord Atkins’s description of proximity in Donoghue v Stevenson [1932] AC 562 as:

“such close Sand direct relations that the act complained of directly affects the person when the person alleged to be bound to take care would know they would be directly affected by his careless act”.

Mr McCaul QC argued that the question of proximity should be answered by looking at the person to whom the duty was owed in the statute, namely the residents of the nursing home. The duty did not take into contemplation the owners of the home. That should be decisive with this case.

I agree with Mr Ullstein QC that there cannot really be any doubt the necessary degree of proximity exists in this case. The activities of the nursing home and the regulatory activities of the defendants were closely connected, with day to day contact between the Health Authority, employees and the claimants.

Forseeability: It would have been obvious to the defendant that if the registration was cancelled and the nursing homes’ only source of income, the residents, removed, that there would be an immediate loss of income and immediate diminution of the value of the premises. The extent of the loss would depend on whether the home had to close permanently or was able to re-open but that there would be some loss was readily foreseeable.

Fair, Just and Reasonable: This is always the most difficult area in this class of case. Mr McCaul QC told me that there was no reported case arising from closure of a registered nursing home, where a duty of care and common law had been established, and the court should be very slow to find a duty in these circumstances. Mr Ullstein

Mr Ulistein QC argues that there is no evidence provided by the defendants to suggest that that would or even might be the case. In argument Mr McCaul QC submitted that a Health Authority should not have to look over its shoulder at the possibility of claims for negligence when arriving at difficult discretionary decisions. That assumes that the Health Authority are carrying out their’ duty in a proper manner and not in the slip shod and rushed manner in which they arrived at their decision here.

If Mr McCaul QC is right in his researches and there is no case where a duty has been found, there is not in the reported cases a case found remotely approaching the circumstances of this case. It is accepted by the defendants that they were under a duty of utmost good faith in making an ex-parte application. It is not suggested that they were deliberately acting in bad faith but that phrase originating from the De Polignac case [1917] 1KB 486 is no more a re-statement of the well known principle that those making an ex-parte application should do so with candour and should fairly state the facts. This, the defendants here, conspicuously failed to do. That puts this case in a class of its own and reinforces my view that there is here a duty at common law to take care.

I asked Mr McCaul QC whether in the circumstance of this case it was right that the claimants should be left without remedy. Unlike the ordinary Civil case where a judge could be asked to revisit his decision inter parties, that was not available here. His answer was two fold. First the claimants could apply for an injunction as was done in R v Ealing Health Authority 30 BMLR 92. That was a very different case where the nursing home never closed in fact even though a Section 30 order had been made. An injunction would have been no help to the claimants here as the damage was done and the home closed before they could reasonably have obtained an injunction from the Administrative Court. Secondly, he said the claimants in these circumstances were not totally without remedy and the tort of misfeasance in a public office was available. However, that involved not only an element of bad faith but a specific intention to injure or reckless indifference as to the probability of injury. These factors are absent here although the decision to make the application bordered

Mr Ulistein QC is right when he says that the Health Authority failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill (the Bolam test see: Bolam v Friern Hospital Management Committee (1957) 1WR 582). The absence of direct evidence to this effect is made good by the views of the Registered Homes Tribunal, very experienced in this field. The Health Authority were plainly wrong to regard this as a matter of urgency and plainly wrong to the point of Wednesbury unreasonableness to apply for summary ex-parte closure. As Mr Justice Laws in the Ealing case put it in a different context this was:

“A true case of Wednesbury perversity or substantive unfairness arising from a failure to disclose to the Magistrate facts or documents which obviously infect this case”.

A duty of care exists and has been breached.

The remaining matter is causation. Mr McCaul QC relies on the case of Bowden v The Lancashire County Council (a decision of Judge David Wilcox sitting as a High Court Judge) unreported Wednesday 17 January 2001 and of Martine v South East Kent Health Authority Times Law Reports 8 March 1993 (CA). Both cases involving applications under Section 30 of the 1984 Act. The combined effect of these decisions is that it is the Magistrate’s decision which puts an end to the registration not the application by the Health Authority. The Magistrate is not a rubber stamp and his decision is part of the system of checks and balances.

That is a powerful argument but cannot in my view avail a defendant who has so lamentably failed in his duty to make a fair and proper application to the Magistrate. Applications of this nature depend on trust and the court must take much of what it is told on trust. Where the court is deceived, whether intentionally or not, is not open to the defendant to assert successfully that the Magistrate’s decision breaks the causative link.

Finally I mention the Pleadings. The particulars of negligence run to some twenty six allegations. These were conveniently summarised in Mr Ullstein QC’s opening as:

In the result I decide the issue of liability and causation in favour of the claimants.