“[The Claimants] between the 1st day of February 2004 and the30th September 2006 , conspired together to defraud certain Primary Care Trusts, who acted on behalf of the National Health Service, by dishonestly causing charges to be made to them, and payments to be received from them, for various charging periods in respect of certain patients placed by the Trusts at the Cawston Park Private Psychiatric Hospital on the false representation that a service described as “Extra Care”, or multiples of Extra Care, had been provided to the given patient, being care beyond that which was included in the core care charge for that patient, when no such additional care had been provided or no additional care in the given charging period had been provided for that patient which could reasonably justify the charge.”
“The Claimants aver that by reason of the improper manner in which the investigation was conducted, and the manner in which evidence was presented to the CPS, the Defendant’s officers caused them to be maliciously prosecuted and/or the Defendant’s officers committed a misfeasance in public office. In particular, the Claimants say that the Defendant’s officers failed to take account of and give proper consideration to important evidence, suppressed evidence and changed and manipulated evidence. The Claimants’ case is that the Defendant’s officers acted with malice. The Defendant by his officers knew that there was no evidence, or no sufficient evidence that the Claimants had committed the offences with which they were charged but nevertheless proceeded to instigate a prosecution against them.”
“Having left the employment of Chancellor Care Limited in December 2005 I remained unhappy with regard to charges being levied for which I knew no service was being provided.”
“…I was complicit in this decision making process because I wrote reports which justified extra care when no extra care was required. I was often told that it was necessary to have I think 12 patients on extra care at anytime for the hospital to achieve its financial projections.”
“Whilst the philosophy of extra care required extra resources to be available the actual staffing levels at the hospital were in fact very low and at times sometimes dangerously low.”
“He thought Breeze and Wilson were running the hospital in a draconian manner, and it irritated him that the clinical decisions made by him were always questioned by Dominic Wilson as the finance director. I had discussed extra care charges with Simon, and Simon took the view that the situation was absolutely ridiculous and people should not be doing that but even when he was a director of the company he tended not to get involved in the business side of things.”
“NB Most if not all of what Deveney initially alleged has been corroborated by other witnesses or exhibits seized.”
“Deveney was employed by Chancellor Care Limited as head of care until he resigned following an internal investigation in to him setting up a rival healthcare venture. The company made complaints about Deveney to his professional body and latterly provided discreditable work references. This inspired Deveney to contact the NHS Fraud Dept, He made the following allegations…”
“It will be contended below that there is a considerable amount of evidence to corroborate the account given by Deveney. Even so he is a very important witness because he was personally involved in the mechanics involved in the provision of “extra care”
“Mark Deveney was a strong witness. The prosecution was allowed by the defence to take him through the extra care patients individually although he had made no statement on that topic. He came over as a highly competent professional telling the truth. He was attacked but he was left - apparently - not seriously marked. He had strongly rebutted the accusations of dishonesty in the period following leave the hospital.”
“…It should be noted that extra care is frequently compared to specialling in these documents Especially with regards to pricing. It is quoted as being charged for by the day or part of the day although evidence of a part day payment has never been found. The mixed messages as to what extra care is, is discussed later. Where a patient has been specialled elsewhere this has been used to justify the charges and the risk factors cited are similar to the test required for sectioning. It has been observed that the explanation of what extra care is (or is not) gathers momentum in 2006. Inquiries have ascertained that Linda Todd (commissioning manager, Norwich PCT) became aware of an investigation around this time. In essence prior to this time SLAs refer to extra care especially in terms of its delivery. Many of these documents refer to extra care being reviewed on a regular basis. There is no audit trail to evidence the review of extra care and Dr Barker in interview admits that it never was.”
“If a patient were receiving extra care…Then I would expect them to have one person with them all the time, like having a shadow. I do not know how many nurses this would entail or how long their shifts were. I would not expect a nurse providing one to one care to be responsible for other patients at the same time…If a patient went home on day leave without anyone escorting them I would expect reimbursement for any extra care that had been agreed. I would expect the basic care costs to continue to keep the bed open ready for their return.”
“I do not recall being given any details from Chancellor Care that absolutely defined what extra care was or how it was being delivered. I assume that at night they would be pulling in waking staff who are additional staff with the sole responsibility to look after this patient.”
“This file is submitted for advice as to the validity of whether in the CPS’s view there is a criminal case that has a realistic prospect of conviction at court. We believe the file as presented evidences in broad brush strokes terms that at Cawston Park Andrew Breeze and Dominic Wilson defrauded the NHS PCTs for some considerable amount of money not only for the extra care scam but for the overcharging for drugs. A decision is sought as to how Dr Simon Barker may fit into this.”
“we have tried to keep the main thrust of this inquiry as straight forward as possible. Basically the allegation is that PCTs were charged for extra care and nothing was delivered to them over and above that that a patient was receiving as part of their normal treatment.”
“It is my opinion that the extra care concept was probably quite noble in its inception. Initially it would appear that Cawston Park were slightly oversubscribed in terms of staff to deliver a form of extra care should a patient have an episode. They had the resources to cope with a patient going through a heightened state of their illness. As the company expanded the over subscription of staff numbers was not maintained… we have gathered evidence from a broad spectrum of staff that shows that staffing levels were low, sometimes apparently dangerously low, or best adequate. Later after the management buyout it is evident that money was the driving factor which impacted on staff numbers. Facts alluded to by several witnesses. How do you provide extra care when you are understaffed?”
“The suspects speak of extra care as a concept. We've included some of the explanations. It is of profound interest to note that no one outside the suspects actually knew what extra care was. The actual practitioners of day-to-day care did not. The new management (Reardon and McKenzie) who were brought in had a look at the concept after they were aware of the police investigation. They could not find out what it was and how it was applied.”
“Criminal intent or dishonesty will be a difficult area to show. All of the named are of previously good character and arguably of some standing in their professional world. The intent or dishonesty element will no doubt be considered in CPS’s decision making. We cannot show that there was a particular moment when the suspects formed a criminal intent to request payment for services that were not provided. I am of the opinion that once they charged the ‘Extra Care’ charge, batted off some early questions about it; it was very easy to continue to charge it. Besides, the charges associated with ‘Extra Care’ had been factored into their business plan as part of the MBO. I believe that they got locked into a cycle of charging for it, not providing anything for it, were never questioned about it and it helped to meet forecasts.”
“On occasions Andrew Breeze was asked to explain the meaning of extra care, and is now aware that in some documentation issued to, from and between himself, Dominic Wilson, Mark Deveney, Dr Barker and the commissioning bodies, there could sometimes be a variety of descriptions or explanations. This was due to the fact that different people attempted to respond to different commissioners asking for different information at different times.”
“Special support will be charged at£13 per hour per staff required e.g. 2-1 nursing – 1 hour x£13 x 2 staff =£26 .”
“The quoted cost is per hour which is the method for normal charging of specialling. It is felt that this would lead PCTs to believe that extra care and specialling were the same. This is discussed under the title of mixed messages.”
“the costing sent to you initially showed our core cost of£443 a day and an extra care cost of£312 a day…You will note that our charges for extra care are£13 per hour, the cost incurred by Chancellor Care Limited in employing a support worker through a nursing agency…You will recall that Mr C has a recent history of serious physical attacks on staff and conspiracy with fellow patients…in light of the above it appears sensible to ensure that additional staff are available to manage any difficulties in the assessment phase of Mr C’s admission to Cawston Park…Mr C will remain under constant review by the clinical team and, at the point the charge for extra care is no longer necessary this will be reflected in the invoice.” (underlining added) Mr Breeze said that he did not understand why Mr Deveney wrote this. He accepted that it could be read as justifying the charge as reflecting the direct cost of additional staff for that one patient which would be incorrect (in my view it would be wholly reasonable for someone reviewing the letter to form the view that it could not be sensibly read any other way). No extra staff were brought in at£13 per hour solely for Mr C.” (b) On24th November 2004 a document drafted by Mr Deveney was shared with Mr Breeze and Mr Wilson, in which Deveney attempted a definition of extra care to provide to commissioners “who query extra care”
“…so the clinical information comes in on a weekly basis and when we started this was Mark Deveney’s job…He would bring the clinical information to myself and Dominic (Wilson) and we've got a list of patients on the board and he would identify for us who clinically was taking up more of the time than other patients…and it was on that basis that an extra care charge was sought.”
“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”
“Staffing wise I feel we are in a very unsafe position. I now have 10 operational staff of my own, when I should be operating on an agreed minimum of 25…quite how I am supposed to operate a caring, professional and clinically therapeutic environment without due support is beyond me. I have consistently discussed recruitment issues, but am regularly rebuffed…”
“For example, having read the transcript of Simon's interview where he describes in some detail those patients who were on an extra care charge however that detail is absent from Simon statement.”
“This is the draft statement which Dr Barker has agreed…Doctor Barker was on the cusp of signing it when he decided that he ought to submit it to the GMC as within the statement he names patients and gives clinical information which could be viewed as a breach of confidentiality…and (he) didn't want any more problems with his professional body. A copy of the signed statement will be forwarded to you immediately on receipt.”
“…Mr Breeze’s solicitor interjected (not for the first time) suggesting there was a complete and unfortunately fundamental misunderstanding or a lack of willingness to understand what extra care was.”
“Breeze started off the sets of interviews on the offensive. He asked the interviewing officers if they were interested in getting to the truth as he didn't think they were interested in the truth at all. He stated that he thought that the police were only interested in gathering a body of evidence that supported their theory that there has been a fraud and that they were not interested in gathering evidence that disproves that. He accused the police of being selective in their evidence gathering and that the complaint from the NHS was driving the inquiry and that they only had one goal which was to gather enough evidence to put to the CPS so that he would be charged and that was all they were interested in. He went on to say that the evidence had been gathered in a biased way. He then said that members of his staff had been interviewed who had positive views about what had gone on have not had statements recorded from them…Breeze said that the police were not interested in seeking the truth and they were being driven by the NHS who have spent a huge amount of resource on an investigation and they want a result for him to be charged. Breeze said that the powers that be was Chief Inspector Chris Hobley as well as Frank Ginelly from the NHS.”
“In or around mid to later 2003 Andrew and I entered negotiations with Norfolk Primary Care Trust (PCT) with a view to taking on our first six patients. Linda Todd was a PCT commissioner who was working under the direction of Mr Brook… The prosecution case centred around the extra care charging and I will briefly set out the concept of extra care. This, as a term, was coined in October 2003 And I believe came from a discussion between myself, Andrew (Breeze), Mark (Deveney), Tony (Chancellor) and Simon (Barker). Around what would be a charge to be incurred for difficult patients over and above a daily core charge… …its beginnings arose out of Mark's observation the patients who were particularly difficult would require more input in terms of our resources and so should be charged at a higher rate. So, whilst the clinical practice was completely different to “specialling” we did still need a way for more difficult, challenging patients, to be allocated a higher price.”
“At that time we completely reviewed her care plan, increased her access to psychotherapy, firmed up some boundaries and increased her extra care with a view to continuing to care for (her).”
“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”
“Weren’t going to do specialling but were gonna do this other thing which, I understand is a lot more difficult to get your head round than one to one nursing.” 228. However he also explained that: “It's more a case of the true care and treatment that is given to the patient. The Clinicians don't think about, the individual nurses, support workers and unit managers don't think ah this person is extra care, I need to give them extra care. They’re there treating those particular things with that patient. It's then someone like Simon, predominantly it was Mark or Andrew, that's a right, having discussed these patients and having read the report that is all about these patients, clearly this person is absorbing a lot more of our resources that we've already put in...”
“Extra care is a charge levied on the more difficult, challenging risky patients on the basis that they do pose more of a risk and are likely to be using more resources than less challenging, risky, difficult patients.”
“Ready to pick up any pieces if things did not work or if when they came back there were lots of issues…”
“After many hours of questioning they still didn’t seem to be getting it. The desperateness to trip me up , or catch me out, does not come across in the transcripts in the same way as I remember it happening at the time, but they do seem to go round and round the same issues again and again… the manner in which the officers questioned me led to my solicitor telling me not to answer any more questions as they are just being petulant.”
“His conduct whilst employed with us, and he was already a proven liar and a thief as he had defrauded the company he worked for after us and the NatWest Bank. This seemed however not to matter to the police. It seemed they accepted what he had to say without consideration to his character and the obvious benefit to him if his competition, myself and Andrew were out of the picture.”
“...to discuss with them the possibility of developing an initiative that sought to provide high quality psychiatric care at an unusually high quality site in Norfolk. During this initial meeting they outlined their plans to purchase and develop Cawston Park as a private hospital for people with severe mental illness and those suffering borderline personality disorders. I was struck by both the sincerity and passion of the two men to develop a service that was both clinically efficacious as well as being a sound business proposition. Over a two or three week period we held several meetings and it became obvious to me that they wanted to use their considerable experience to make the Cawston site a centre for clinical excellence, offering patient centred care based upon a Modified Therapeutic Community (MTC) model and to gain a reputation for undertaking psychiatric care that was both contemporary and evidence based.”
“Extra care was an invoicing mechanism designed to pass on the increase in support required by certain patients to the Commissioner responsible for their placement. This is standard practice throughout the independent sector as this is often the way that increases in care can be monitored when using the traditional specialling model of care i.e. bringing in extra staff. However, certain key issues need to be addressed at this point to clarify what was happening at Cawston during the first two years of its development. Firstly, as described above and from my own examination of patient records for later research purposes, the documentation systems, as described above, were not sensitive enough to be able to detect the increase in staff support for individual patients. Staff spent time with the patients sorting problems and difficulties out rather than sitting in an office writing reports. Whilst this perhaps represents some organisational naivety it reflects the stage of development that the organisation had reached and its desire to meet its clinical ethos using the “right" approach to care, not just the most expedient one. Secondly, much of what went on as an increase in care came, certainly in the early days, from the senior staff who were at that time living on-site. They it was who would often act as the back up person in difficult to handle situations and their input was seldom, if ever, recorded in the patient's notes. Thirdly, even if these senior staff were not on site during incidents requiring additional resource input, this would invariably come from the senior staff on the unit, not additional staff from the nursing pool or an agency. There were, of course, incidents where this was the case, however, in most part it was dealt with from within existing resources. My understanding was that an additional charge for the increase in support and care level would then be reflected in the invoicing process. In the morning meetings with the Head of Care, the senior management would discuss the previous day’s events and those patients who had required, or continued to require, additional support and interventions. There were no formulae, or scientific calculation, for this calculation merely an evaluation by the team of the extent of additional support required. However, I am not aware of how the figure to be charged for each patient was arrived at. Given the structural developments at that time this would appear to be a perfectly appropriate way of determining the cost to the organisation and any suggestions that this was not so would indicate a complete lack of understanding and experience of clinical practice and the demands placed upon skilled nursing and support staff at times of crisis. It also places too much emphasis on the mechanical process of offering extra staff for extra care. Patently this is not the way it works and any suggestion that it should merely reflects an uniformed and perhaps stigmatised view of the way that people with mental illnesses should be treated. Fourthly, as described above most independent institutions invoicing for extra care would be able to show the necessity to bring in extra staff to undertake either specialling activities or to manage seclusion because of either their reporting mechanisms or the bill for bringing in additional staff from either bank or agencies. Cawston managed to do this from within its own resources, providing additional support and care that needed to be paid for. The outcomes from the approach undertaken at Cawston, versus those of many other more traditional establishments, should beg the question who is actually cheating who here? Many of the patients transferred into Cawston had received specialling in one form or another during the length of their various hospitalisation period. None of them appeared to have benefited therapeutically, they were simply still alive but with the same debilitating mental health and behavioural problems. Where was the cost effectiveness in this one must ask… Fifthly, the decision as to who would attract extra care charges was that of the Head of Care in discussion with the CEO, the Medical Director and the Director of Finance, at either their informal daily meeting or the more formal weekly ones. Clinical data was discussed and if it was agreed by the team that additional resources had been, or were continuing to be, required, charging was made accordingly. This was the agreed arena for these discussions and many of the decisions about the day to day running of the organisation, as reported to me informally and in our own meetings by the participants of these meeting, were apparently made by this senior group as a working team. It was not something about which the support workers or nurses on the unit would be aware of.”
“...there was a delay before the interview started. One reason was that the other officer could not get the recording machine to work, another was that we were waiting for a representative from DLA Piper to arrive. The interview eventually began, without any DLA representative.”
“I got the impression that the officers were not interested in what I had to say, but they were just going through the motions. DC Baker made no notes during the interview…I definitely felt that my role in the investigation was a bit player.”
“DC Baker then went on to say words to the effect that I should realise that if I went on the stand as a hostile witness to the CPS, they would have to raise this because it showed that I had a shady background and my word was not necessarily credible….DC Baker continued to say that if I didn't appear that wouldn't matter, but if I were to be a witness for the prosecution, then my dismissal from the RCN would not be raised. I remember thinking at the time, how on earth can I be a witness for the prosecution when everything I presented supported the stance taken by the company and Andrew. Throughout this part of the discussion, DC Baker's demeanour did not change. The fact he continued to speak in a friendly manner made the message even more chilling…. I have no doubt this was a premeditated ploy to discourage me from being a defence witness carried out in a way to achieve optimum impact. DC Baker then told me to go away and think about it.”
“he did a fine job in scaring me off.”
“The interview started and I have no complaints about the interview, the officers were polite, I felt comfortable and not stressed, the officers were not hostile towards me in any shape or form. Although on reflection, I do not think they were that interested in what I had to say, they were going through the motions…”
“Once the investigation started, the police gathered a body of evidence which appeared strongly to support the account given by Mr. Devaney. This included Mr Chanceller, (sic) the founder of the company, who made a statement trenchantly supporting the Crown position.”
“I have no recollection of when the term extra care was adopted. I think we were struggling how to describe how we would charge for those patients who we assessed would consume greater resources that the ‘average’ patient. Someone came up with the idea of calling it a charge for the extra care that such patients would require the company to provide. One important difference from the operation at Kelling, was that there was no concept of a prescribed basic charge for a secure mental hospital. So the company’s basic charge was very much based on what other private institutions were charging and then charging a bit less. However, all the other private sector hospitals were charging, in addition, to a basic rate a charge for specialling, as required. I think to some extent we were able to include a charge for some of the services we provided at Kelling i.e. the extra accommodation services for want of a better phrase, within the basic charge but we needed to provide a top up fee in respect of the most demanding patients. Exactly how this evolved is unclear to me as I was not actively involved in operations at Cawston at any time and had no involvement at all from February 2004 onwards. All I can recall is that Mark Devaney undertook the initial assessments and from that a fee structure was offered to the referring PCT that would be reviewed in line with the patient’s progress. Having participated in the initial discussions and explained how things were done at Kelling, I left Andrew Breeze, Dominic Wilson and Mark Deveney to implement the strategy.”
“Shortly after the arrests, I was contacted by telephone by a police officer by the name of Brownsell. I remember this particular conversation for its duration, I was outside the railway station at Norwich, walking backwards and forwards in front of the station building. He made it very clear to me that fraud had been taking place within the company and I was left in no doubt that this officer considered the accused were guilty and would definitely be going to court.”
“LDC were left in no doubt by these officers that if we wished to protect our investment in A D Care Limited, it would be beneficial if Andrew and Dominic were removed from the business. I cannot remember the specific words used but there was definitely a strong intimation from the police that us removing Andrew and Dominic from their posts would be to our (LDC and the police’s) mutual benefit.”
“Shortly after the arrest of myself and Dominic, DS Brownsell and DC Baker suggested to LDC that if LDC wished to protect their investment in AD Care it would be beneficial if Dominic and myself were to leave the business. As a result of this Anthony informed us that we could either recuse ourselves or be dismissed.”
“I informed (the officers) what a fantastic facility (Cawston Park) was for patients and how I believe the care was second to none. In particular I was questioned about Andrew Breeze. I told them he was an excellent manager who put the patients first and was always looking to have the best possible care provided for them. I went on to inform them that Andrew, although being the chief executive, was constantly around the hospital and knew all the patients and staff by name. He took a keen interest in the patient's care and treatment and for a long period of time he lived on the hospital site… all of the staff that lived on the site were aware they could be called upon at any time if there was a problem with any of the patients. I myself was called out on many occasions and I witnessed others assisting we were all keen to respond.”
“They also appeared disappointed when I said positive things about the hospital and its management and negative things about Mark Deveney and the few members of staff who were his supporters.”
“Another theme the police dwelt on was what I understood by the term extra care and who was receiving it and how this was linked to what was charged for the patient to be in the hospital. I told the police that I was completely unaware of how much it costs to keep a patient at Cawston Park Hospital. I also told them that I had not heard the term “extra care” before, other than the extra care suite…however I did explain that there were a group of patients who were extremely difficult to manage because of the severity of their illness and this group certainly took up more staff time as they required more input than others. I was one of the members of staff who spent more of my time with these patients. I named some of the patients I was talking about who I had observed to take up more staff time. I had written their names down on the questionnaire that all staff had been sent by police. The police appeared to be unhappy with the explanation that some patients got more than others and seemed to just dismiss it. I even gave examples of how particular patients took up more staff time.”
“very angry because I believed I had something to offer the investigation.”
“I didn't know anything about extra care in terms of a charge being applied to patients, but to my mind extra care was what you gave the patient when they needed it.”
“We have become increasingly concerned about the manner in which the Norfolk Constabulary have conducted this investigation. In particular, a number of witnesses of fact who have evidence in support of our clients have either not been approached by the police, or more worryingly, having indicated their support (of the Claimants) have not been revisited in order for formal statements to be obtained.”
“It enables me to say why I thought the case failed…but I do not pretend to have a detailed recollection of the course of the evidence or of all the issues that arose.”
“It arose from a principled objection to the widespread alternative of “specialling” and applying extra nurses to difficult patients and charging for them. Tony Chancellor (a prosecution witness and the founder father of Cawston Park, whose philosophy underlay the structures of the hospital) and Dr Simon Barker (the principal psychiatrist) both said that “specialling” was counterproductive in therapeutic terms but was used elsewhere because it enabled very high charges to be made for some patients. Cawston Park used the concept of “extra care” because it avoided the use of specialing but allowed the hospital to charge PCT’s at a commercially sustainable level. Some PCT witnesses plainly understood this. Others professed not to and said they thought it was another form of specialing - but it made no sense to charge for the specific, additional manpower because of the way it was levied and the balance of evidence failed to support Deveney’s contention that the charges were inherently deceptive.”
“The problem lay, in the large part, in the attitude of the police. Witnesses who tried to explain what was happening were ignored or the accounts misrepresented. Anything which contradicted Deveney or supported the position of the claimants was airbrushed out of the picture. Responsible witnesses got the impression that the idea was to do down Chancellor Care and that a conviction was needed for this purpose.” and concluded by stating that: “From an early stage of the case I thought there was something deeply unsatisfactory about the investigation which seems to me to have been tarnished by closed minds and a complete lack of objectivity.”
“A few months after opening the first unit at Cawston Park we admitted some patients who were high risk, more challenging than other patients, very demanding, sometimes violent and it was agreed that the number of staff on each shift would need to be increased in order for these patients to receive the care they needed. There were several meetings between Tony, Andrew, Dominic and Mark to discuss different options; I was present at a preliminary discussion. This was prior to the management buyout in 2004. The directors did not want to go down the same route as the NHS and many private hospitals by providing one to one care called specialling…I know there were a few meetings I did not attend where the subject was discussed further… I was not present when or if a final definition of “Extra Care" was produced however my understanding is that you need enough staff present on each shift to provide effective care for all the patients including the more demanding patients without resorting to a "permanent" (custodial type) extra presence. All the patients referred to Cawston Park were assessed before admission, the assessment report and contract were sent to each referrer stating the level of risk the patient was presenting and the level of extra care needed to manage that risk, patients were admitted after the contract was agreed. We also gave non clinical staff like Phil Spinks the grounds man basic training in mental health and engagement with patients so that it he could interact with patients during activities such as gardening and caring for the livestock.”
“when Mark left the company I understand that Simon (Barker) was then expected to sign clinical reports for all of his patients including those that received “extra care”
“I remember being concerned the tape was turned off on several occasions throughout the interview. A cigarette break was the usual reason. I now recollect the tape appeared to be turned off and another cigarette break suggested at times when I was making positive and complimentary comments about Cawston Park Hospital and its management and also when I was making uncomplimentary comments about Mark Deveney. I told the police officers that he was unprofessional and a bully and even told the police that if they were relying on Mark as a witness “You’ve not got a celluloid rat in hell’s chance.””
“Since the collapse of the trial, on reflection, I believe that the police had decided their own definition of the term “extra care”
“I also think that Mark may have had alcohol issues. I often saw him come into work very hung over. He would sweat like a bull.”
“The Police simply disregarded information that I provided them with that wasn’t in line with their thinking or wasn’t what they wanted to hear.”
“I was sent the interview transcripts and a detailed 204 page case summary in the Autumn of 2007.”
“21. Gary Cooper was to emerge as the most experienced psychiatric nurse to give evidence with wide well researched knowledge. He was recruited as the hospital manager leaving Mr. Devaney still Head of Care. Although his main evidence was not foreseen, there was nothing in his witness statement to put us on enquiry. He was dynamite. He had the utmost contempt for Mr. Devaney. He gave detail for his opinion. Consistent with his statement he said he knew at the time there was an extra cate charging system. He did not know who was on extra care but it was in his opinion, obvious to him who would attract the charge and he said, it would be obvious to any professional at the hospital. When the actual last 4 subject to the charge were identified, he asserted that at that time, the 4 of them absorbed a third of the hospital resources. He gave very detailed evidence of why this was and how it worked. He said that there was plenty of staff. He said he had made a comparison with the principal NHS hospital in Newcastle and Cawston came out very well. He returned to the theme we had had from other witnesses that the dependency on agency staff was a nationwide problem. He explained the reasons. He also maintained that at Cawston the national problem had been exacerbated by Mr. Devaney’s lack of personal management skills. He was quite clear that neither defendant put any limitation upon the ability of himself or Mr. Devaney to recruit as many agency staff as in their judgement was required. This was flatly contradictory to the evidence of Mr. Devaney. He flatly contradicted Mr. Devaney’s evidence that he, Devaney, had complained to him about staffing levels. Whilst the hospital manager, gave evidence to the effect that those patients being charged for extra care received a far greater proportion of existing resources and clinician’s time than those patients not subject of the charge. It was a legitimate and fair charge. Although when he started his evidence on Thursday he sounded slightly petulant merely with an agenda to attack Mr, Devaney, on Friday the “mood music” changed. He became a man of stature whose evidence may be wrong but I simply cannot be rejected by any fair minded properly directed jury.”
“Mr. Miller told me that in his opinion DC Baker never acted inappropriately in any conversation he had with him concerning the Cawston Park Enquiry. He felt that it was inevitable the case would be mentioned within the confines of the City Club but clarified that DC Baker never spoke about the inquiry in respect of the mechanics of the investigation and any comment that was made was in very general terms.”
“I was having a cigarette with DC Baker outside we were approached and harassed by Steve Pointer who was very drunk. We had anticipated that this might happen, however at the time DC Baker was confident that it would not as Pointer had apparently been spoken to by senior club members. Mr Pointer was quite loud and kept demanding of me what did I think I was doing harassing an innocent man. He was told by me that we would not discuss anything with him; we were off duty and didn't want to talk about anything to do with work. Mr Pointer then started to get quite offensive…other members of the city club were present during this embarrassing exchange…Later Mr Pointer approached me DC Baker and apologise for his comments. We shook hands and he insisted that he bought us a drink.”
“I instructed…solicitors and over the next several weeks (they) and I sought to persuade the police that I could not possibly be implicated in this imaginary fraud. I recall the rudeness and complete disdain that the officer in charge DI Cunningham showed me and my solicitor. He refused to take a call from me and engage in any way. I remember at one point being told that if we carried on as we were, the Police would apply for a restraint order against me, as they had with Andrew and Dominic. Then on around the 15th of February 2007 my solicitor received a telephone call to say that I was no longer under suspicion.”
“The idea that he was caught up in some commercial fraud knowing the man as I do is risible, he just wouldn't understand it. One could be critical in more recent times of his commitment to the business as he was looking forward to retirement but he would not have been involved in any sort of pricing discussions or anything like that. He was more on the patient side of things.”
“…They were not very happy with the occupancy levels on the financials, which were OK but not as good as Andrew and Dominic had forecasted. As a result I had a number of meetings with Andrew and Dominic and expressed my reservations about their ability to do the job…”
“David Prior In the early stages of the enquiry we could not ascertain Prior’s involvement with the day to day running of Cawston Park. We were aware that he was the non-executive Chairman and that he benefited considerably from the MBO, as had the other suspects. Det Insp Cunningham policied that Prior was to be arrested with the other suspects on the day of action:14th November 2006 . Subsequent enquiries showed that Prior had in fact resigned from Cawston Park. Prior had been in dialogue with Anthony Bull from LDC. Bull had written to him expressing concerns over the competence of Breeze as the Chief Executive as the company was not meeting projected targets. Indeed, Prior was later subject of some criticism that he had not done enough at Cawston Park in his capacity as Chairman. Prior was also aware of the enquiry into Extra Care. In September 2006 the HCC performed their inspection which resulted in statutory notices being served, a considerable embarrassment to Prior. Richard McKenzie was contacted by Prior and asked whether he would be the Chief Executive. Prior at the Board meeting demanded that Breeze step aside to allow Mackenzie to be Chief Executive or he would resign. During this Prior mounted a personal verbal attack on Andrew Breeze. The Board accepted Prior’s resignation. There was no evidence to link Prior to the Extra Care fraud in terms of its pseudo application or invoicing. Prior was not linked to the drugs fraud. Det Insp Cunningham policied that he was to be released from his bail obligation and treated as a witness. This decision was ratified by CPS. Prior has provided a witness statement.”
“My observation of staff interactions with patients was that there were some patients who received much more input from staff than others due to the severity of their illness. This more intensive input would be in a variety of different ways, often changing from day-to-day so the varying level of need could be met by varying level of input that the patients received. Put simply, some got more input than others.”
“David Graham We had never heard of Graham until now. It would appear that he ceased working for the HCC in August 2005. Nevertheless, it would appear that Graham had no knowledge of the charging system. He has given opinion about the hospital and treatment given. His observation that the staffing levels at Cawston Park were higher than other similar establishments is of interest. One wonders whether his inspections were pre planned, if that was the case it is possible that staff numbers were ‘upped’ for his visit. His position is at odds with numerous statements from members of the work force we have taken that state that there was a low level of staff. You are in possession of these statements.”
“I have been led to believe more recently this was supposedly because my husband was terminally ill at the time…nonetheless this would not have prevented me from seeing the police if they had made contact with me.”
“…For the first several months I shared a large office with Andrew Breeze, Dominic Wilson and Simon Barker. Through doing so I developed a good understanding of how the hospital operated, how patients came to be admitted and how charges were applied. It was in this office that senior clinicians came to discuss patients with each other, how they were doing and the results of new assessments, Occasionally Tony Chancellor would join us. In this office many discussions took place, most of which I was not involved in but overheard because I was working in there. Mark Deveney would have clinical discussions on a daily basis with Simon Barker, and Andrew Breeze being a clinician would join in. I knew how the charging mechanism for patients worked at Cawston Park because I was in the office where decisions were made between Mark Deveney, Simon Barker, Andrew Breeze, and to a much lesser extent Dominic Wilson. The process was very similar to what had always taken place at Kelling Park, except the decision to what should actually be charged involved more people. The patient would be assessed, the clinical information analysed and a price for the placement agreed…In some respects it was easier to understand how the price was arrived at compared to Kelling Park because it was clear that there were only two charges associated with the clinical information. One was the core charge, which everybody was charged and the other was the ‘extra care charge’ which was applied depending on the outcome of discussions between primarily Mark Deveney and Simon Barker but also with Andrew Breeze's involvement Dominic Wilson did not get involved with clinical discussions as he was not a clinician and I recall him often stating that he could not have a clinical view because of this. Once a decision on price was agreed Dominic Wilson would then take the necessary steps to implement it. Mark Deveney would come into this office, often several times a day, but always when he returned from an assessment so that he could discuss it with Simon Barker. These assessments were usually done by Mark Deveney but sometimes the unit managers and/or Simon Barker would accompany him. After the assessment he would write a report, discuss it with Simon Barker and determining a price, core + extra care or core charge only. The PCT would be contacted, following which arrangements would be made for the patient to be admitted. The only other element to do with charging was the cost of drugs which was added by the finance department at the invoicing stage. I raised these invoices and this process was then passed on to Paul Vincent and Sandra Grunwald when they started working at Cawston Park. Once again patient placements were monitored on a regular basis through the ‘CPA process’. Mark would also write monthly reports for the PCT to update them on how the patients were doing. These would then be sent out with the invoices. On several occasions 1 had to chase Mark Deveney for these reports and sometimes I had to ask him to change them. This is because he had been careless, for example, in the use of cut and paste and they did not make sense. This was just Mark and the reports were changed and sent out, These reports were sometimes seen by Andrew Breeze and Dominic Wilson as they were in the same office and sometimes they were not. I often hand delivered these on my way home. Once again as with Kelling Park, charges remained the same regardless of whether patients went home at the weekend or not. There had never been a question of charges being reduced when patents were not at Kelling Park or Cawston Park ever since I joined the company in 2001, The ‘CPA Process’ monitored patients and so everybody knew what was happening. In the five years I worked at Chancellor Care I never heard of a complaint regarding the standard of patient care or the cost of their placements, in fact quite the reverse, I understood many Commissioners, Placement Advisors and Social Workers were very pleased with what we were doing at Chancellor Care and the clinical results that were being achieved with the patients. …Mark Deveney never complained that he did not have enough staff. I knew him to bring in extra staff from nursing agencies when he thought they were needed because I was responsible for ensuring the invoices were paid. Some months the totals of agency spending were very large. Mark had the authority to order the agency staff as required, At times he was questioned as to why the amount of spending on agency staff was so high but he was never prevented in bringing them in to provide adequate cover. I never observed anyone being asked to do anything they did not want to do. At that time everyone appeared to be working extremely well together. …From the beginning Andrew Breeze and Simon Barker lived on site. Patients had access to them 24 hours a day. Mark Deveney lived on site for a while but when he was not living there he spent most of his time there. I observed that, in my opinion, the patients were looked after very well and the management treated the staff very fairly. I was very pleased to have been part of such an exciting venture working so closely with those responsible for making it happen. …When I heard I heard about the allegations I did not believe them. I know that Andrew Breeze, Dominic Wilson and Simon Barker would never do anything like this. I observed the company to be run extremely well both financially and, although not a clinician, what I thought was clinically very well. I felt that I was in a position to make this judgment as I was observing at first hand the decisions that were being taken. Had there been any behaviour that I felt was wrong I am convinced that, because of my close proximity to all the senior staff on such a regular basis and my access to all the financial records, I would have known about it. All the patients seemed to get whatever they needed and I understood some of them did very well compared to other places they had been, some individuals told me themselves they were much happier with their care and the excellent surroundings they found themselves in at Cawston compared to other places they had been. Since the beginning of my time with the company in 2001 I never had any concerns as to how it operated…”
“Susan Smith We know of Mrs Smith through the statement of Charles Feavers. We also knew that her husband at the time was critically ill with a brain tumour. He has since died. Her description of the interactions between Barker, Deveney and Breeze is already known and reflected in papers in your possession. Her position about charges for patients whether they are at the hospital or not is irrelevant. We have never disputed the need for Cawston Park to carry on charging a patient’s core cost whilst they were absent from hospital. Our interest is the fact that patients continued to be charged for Extra Care when they were away from the hospital. I would remind you that this enquiry has never been about patient care. ‘It is about the additional charging for patient care called Extra Care. This is reflected by the papers submitted to you.”
“At this time the Constabulary were investigating what officers involved described as their most high profile fraud case yet; both Paul Cunningham and Simon Bailey made passing comments to me. They had emphasised that this case had to succeed and that it was important that the case did not fail. It was a most important enquiry and also the first time that the NHS Police force had corroborated (sic) together in this way. ”
“It was very clear that from a very early stage in the investigation senior officers had decided on Andrew's guilt.”
“Sandra Grunwald who worked in the accounts department at Cawston, has described “extra care” as relating to the clinical needs of patients and is a charge for additional input by members of staff over and above the core service. She states the business was actually manned at such a level to enable this to be performed by members of staff known to patients.”
“Andrew and Dominic were keen for me to understand what good relationships they had with their clients, the PCTs, who placed patients with them. I recall them explaining how they were different to their competition and specifically, how they were upfront and transparent with the charges they made, including the extra care charge for the most demanding patients.”
“I had a good understanding of how the business worked. I was aware that the higher dependency patients attracted premium pricing. I was also aware that staff numbers were sufficiently high to allow a higher degree of care to be given to those most troubled patients. Cawston Park took in some of the most mentally ill people in the whole country.”
“I refer to the contents of the case summary, prepared by me primarily but in conjunction with DC Horsburgh. The case summary was and remains, in my view, a balanced summary of a lengthy, complex and extensive investigation. It referred to the state of the investigation at the point of the submission and was accompanied by relevant documents with summary explanations of their contents, together with references to what had been said in statements and at interview. …. The case summary continued to set out the definitions of extra care from seized documents and the allegations made by Mark Deveney and then referred to various evidence from the PCT commissioning managers. Under a series of self-explanatory headings, the case summary noted what had been said in relation to extra care and staff understanding of that concept, Detailed summaries of interviews of Mr Breeze, Mr Wilson and Dr Barker were included and the case summary concluded with a number of bullet points summarising the enquiry at that juncture. Those summary bullet points represented, in my assessment and that of my colleagues, a fair and balanced assessment of the state of the investigation at that stage, sufficient to request from the CPS a charging decision. Of course, had more work been required by the CPS at that stage before a decision could be made by them, then the investigatory team would have acted accordingly. Accompanying the MG5 case summary was the MG6 case file information form. I again was the author of that document with input and assistance from DC Horsburgh.”
“42. It is the task of a judge in conducting a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. One such long-established rule is usefully set out in the current edition of Phipson on Evidence 20th ed (2022). Bean LJ quoted the previous edition, which was in materially the same terms, at the start of his dissenting judgment. At para 12-12 of the 20th edition the learned editor states: “In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”
“I recorded in my rough book concerns over the role of Mr Deveney. We questioned whether Deveney was complicit in any fraud and how he may have profited. Right at the outset, the investigation was alive to the circumstances in which Mr Deveney had blown the whistle and we regarded him and his motive with circumspection.”
“I did not believe that his (Mr Deveney’s) evidence was incredible. I believed it through to trial.”
“A police force being driven by the Health Service that have spent a huge amount of resource on an investigation and they want a result, that result being us being charged.”
“I still recall to this day an opening comment made by Mr. Cooper to the effect that whistleblowers did not last long in the NHS. I inferred from that comment this although Mr. Cooper had indicated he was willing to be interviewed, he may not tell us everything he knew for fear of potential consequences. I also clearly recall Mr. Cooper advising us in terms of the investigation to “follow the money”
“Mr. Cooper stated that Andrew Breeze wanted the best for patient care and that extra staffing was no problem.”
“He stated again that he did not know what extra care was aimed at, what it was, how it was delivered or who had it, he stated that no one came to him asking for extra staff under the auspices of extra care.”
“I’d been asked to prepare these case vignettes to give a pen picture of what the patients were like. I had plenty of work to do and this was a real pain so I had only done a few. The idea was then I could explain to the lawyer, the sort of patient the charges being levy for. The ones that had been charged seemed all right but it's a grey area and I certainly hadn't looked at all the notes.”
“D jumped out of the page at me as someone who didn’t fit the criteria of what I understood extra care to be. In my discussions with DLA Piper. D still being charged for extra care didn’t equate with the concepts we’d discussed. I can’t say what the intent was with regard to this situation.”
“This is the draft statement which Dr Barker has agreed. I've not precised it here as it really needs to be read and absorbed in its entirety. Dr Barker was on the cusp of signing it when he decided that he ought to submit it to the GMC as within the statement he names patients and gives clinical information which could be viewed as a breach of confidentiality…A copy of the signed statement will be forwarded to you immediately on receipt.”
“Dr Barker should be taken through each of the 24 patients. Counsel advises that we should serve the best evidence we have from Dr Barker…so defence know at the earliest opportunity we are using him as a witness. Mr Tarrant indicated that he was happy to speak to Mr Gentle, the solicitor who represented Dr Barker when he was being investigated, Mr Gentle has a good relationship with Dr Barker and could hopefully assist us in obtaining a full statement from him. Doctor Barker should be reassured that the court would not allow patients details to be reported.”
“The allegation at Cawston Park centred on charging for extra care which may not in fact have been provided. There were no allegations of similar activity at Kelling Park. During the investigation, Frank Ginnelly of NHS was tasked to look at Kelling Park invoices to see if anything untoward emerged. Had anything emerged, then activities at Kelling Park may have been included in the investigation.”
“…what's in place is a high level of skilled staff...who will target patients, now from a clinical point of view, I guess that is a question from Simon Barker and the clinicians, I would expect patients to take up more of Simon’s time...”
“Extra care is a financial term…depending on the clinical information that is coming in, if you bear in mind the way I’ve just described how we’ve set up Cawston Park in terms of staffing…we needed to find a mechanism for charging more for the more difficult patients…(Deveney) would bring clinical information to myself and Dominic and we’ve got a list of patients up on the board and he would identify for us who clinically was taking up more of the time than other patients...and it was on that basis that an extra care charge was sought. Now generally speaking that level of clinical input would mean that if a patient wasn't at Cawston Park in another facility they would probably be being specialled...it was that sort of clinical discussion that we had and the discussion would be between Mark, Simon and myself.”
“We have always said to clinicians, to commissioners that we do not do one to one nursing...extra care is about engagement, we may require extra resources we may not...that is about us managing this particularly difficult patient…we, we realise that people struggle with it, we did realise…which is why we made sure that for our SLA we had built in our explanation was built into the SLA and were very clear with the commissioner do you understand what we mean by this.”
“I recall at the very first function I attended at the club after Mr Breeze’s arrest, I was confronted by a former police officer named Steve Pointer, who had seconded me for membership. Mr Pointer made a number of inappropriate comments to me regarding my involvement in the case. Mr Pointer subsequently telephoned me to apologise for his behaviour. Unfortunately, when intoxicated, Mr Pointer continued to bring the matter up when I was in his company. As a result I began to scale back my attendance at club functions.”
“(Martin Ward…was an employee who is employed to transfer my working principle from Kelling to Cawston Park and demonstrate the positive results through recognised assessments and research tools. I would like to emphasise again that my views and practices could only be effective if the correct amount and quality of staff were available to deliver it.”
“At 10.52 am27th March 2008 Mr Smyth arranged for a letter to be sent by fax to Mr Tarrant…Mr. Smyth stated the content of his letter indicated he was unaware of the date, time and location of Mr Ward’s interview. The letter…requested DLA Piper to be present at Mr Ward’s interview and made clear…the purpose was to observe the interview. Mr Smyth was away from the office for the rest of the day. However prior to leaving Mr Smyth tasked his paralegal Mr Adam Rasul, to pick up any messages from either the Crown Prosecution Service or the major incident team. Mr. Smyth explained that had Norfolk Constabulary given permission for DLA Piper to attend Mr Ward’s interview a local solicitor would have been contacted and ask to attend the interview on their behalf…Mr Smyth stated he was never informed by Mr Tarrant or the MIT a DLA Piper solicitor or representative could be present at Mr Ward's interview…”
“Although not representing Mr Ward, DLA Piper wanted to be present to observe his interview. That request was unusual and as a result advice was sought from the CPS fraud prosecutor, Chris Tarrant, who expressed the view that nobody owned exclusive rights to a witness and that as a gesture of goodwill the inquiry team should allow a DLA Piper representative to be present if Mr Ward wanted them to be there…I recall making telephone calls to DLA Piper after I was informed that someone was en route and trying to contact me. I was unable to get through and with time moving on the interview had to start.”
“The issue of disciplinary charges had to be raised with Mr Ward. I was leading the interview with DC Flynn assisting, and decided that the most respectful way to raise the issue was to do so at the end of the interview, after the tape recording had concluded. My decision was to spare Mr Ward any embarrassment and I recall him thanking me for that approach and understanding at that time. I cannot now recall whether I discussed my intentions with DS Brownsell. Mr Ward asked if the disciplinary matter would come out in court if he should give evidence and I told him that was possible.”
“In relation to ‘extra care’ I had heard the term mentioned but I knew we did not have an extra care suite. I had a naive idea that it meant something to with the environment in the Grange as opposed to the Manor, as the Grange was a low secure unit. I did not hear it talked about in any detail although I had thought about what was actually meant by extra care. I did not pay it a great deal of thought because of all the other things going on and it did not seem to mean a great deal to me. I was wondering if Andrew Breeze was talking about something in the future such as moving people onto something better. We certainly did not seem to be providing any extra care. It was a term I never heard until I was actually working in the Manor where I heard it mentioned once or twice accidentally. I heard Dominic Wilson talking about it and Mark Deveney talking about it to Dominic Wilson or Andrew Breeze, I don’t know if Simon Barker may have been there, it may have been during meetings. We had regular meetings during the week to decide policies reviews of patients’ things like that. Andrew Breeze had a white board in his office upstairs with all the names of the patients on it and I think that some had mention of extra care against their names. I think they were highlighted in some way but I cannot remember how they were actually highlighted. I thought what does that mean but it was never explained to me. To be honest I did not really have time to sit down and think about it as when I was not looking after the patients I would catch up with paperwork and other things. It was quite a difficult working environment and one incident or another was always going on. There was always something that needed doing. Extra care does not mean anything at all to me. I am not aware of any patients that received any extra treatment.”
“The type of people that we had would have demanded some sort of focus or extra care of some description because they were worse than the average psychiatric patient. Whether they meant that because we have this secluded environment and you've got the secure environs or what I don't know, but it (extra care) was a term I never heard until I was actually working in the Manor and I heard it mentioned once or twice accidentally…(but it was never explained to you then?)…No it didn't, it wasn't explained to me and to be honest with you I probably didn't really have the time to sit and think about it too much because of the pressure of working in that kind of situation..”
“DC Baker was the lead interviewer and decided to leave the issue (regarding professional disciplinary matters) until the end of the interview to spare Mr Ward embarrassment and avoid distraction from the areas of evidence we wish to cover. I did mention the issue in passing on tape and DC Baker at that point indicated he would deal with it later. As Mr Ward was fully cooperative, DC Baker decided to cover the issue off tape. The reason was certainly not to intimidate Mr Ward, who had by then answered all questions put to him.”
“The investigation team continued to conduct their inquiries. They approached me for ad hoc advice when necessary but for the most part they simply got on with their job.”
“In summary, in my opinion, the position was that Mark Deveney was the ‘whistle blower. His contention was that the concept of nominating specific patients on ‘extra care’ was a financial tool and had no link to the actual care given to those specific patients. There were concerns about his credibility and I openly acknowledge this at paragraph 2.5 of the Review Note [Exhibit CKT2]. There was, therefore, a need to seek corroboration of his account of events. I came to the view that Mr Deveney’s assertions were corroborated by a number of staff witnesses because, as a starting point, other than the Claimants, they all gave different explanations for the term ‘extra care’. In addition few of the staff, apart from the Claimants and Deveney, were aware which patients were on ‘extra care’. I believed that it would be reasonable to assume that the staff actually involved with the patients would have some knowledge as to which patients were on extra care or, at least, be aware that additional staff would be needed to cope with the resources required for the long term needs of particular patients. A summary of this evidence is set out at paragraph 3.6 of the Note [Exhibit CKT2]. ”
“…from August 2006 on I found myself being drawn more and more into being asked to give explanations about extra care; and support the idea of extra care. This was something that really hadn’t been on my radar up until then. I felt that I could justify the concept of extra care as a clinical one, whether the name’s correct or not, I don’t know. I was not clear what the company were doing with regard to the charging. I began to feel that I had been, and was being, used to justify this process clinically from a retrospective point of view.”
“In my role I managed all the contracts for out of county placements with private providers in hospitals all over the country…I had anything up to 80 mental health or learning difficulty patients out with private providers at any one time, and then there was the nursing home patients on top of that…Sometimes I would only be using 20 providers but a provider might have more than one unit or hospital…The national service framework issued by the NHS decreed that we should treat patients as close to their home as possible so I was always looking for ways to get patients back to Norfolk as quickly as possible within the scope of their treatment. So in reality if there was a local provider who was suitable for a particular patient I was almost duty bound to use them if I could. In order to pay for the treatment of these patients my spend in 2003 was about£6 or£7 million and it just increased year by year till by 2006 if you included the forensic patients as well the spend was up to about£13 million . …Robin Brook was my immediate boss but my responsibilities had been given to him and he already had a full work load and he did not have the time to manage the job properly any more than I did…I would normally work a 60 hour week. This was just to keep up with the work load and all I was really doing was fire fighting. I did not have the time to get ahead or have a chance to improve systems or procedures, If I had had more time I could have visited providers before I placed patients with them and then working with them to get more patients there rather than always reacting to the latest problem. …All of the patients had some kind of agreement saying who would be providing what and who would be paying. We had our one and only full service level agreement with Cawston Park as we were block purchasing beds and we were trying to plan and develop a service. When Cawston Park first opened it was for a particular type of patient and we expected them to move through their service…With Cawston Park under the service level agreement we initially block purchased 6 beds but they very quickly became full so I think we increased it twice we went from 6 to 9 and then finally we went to 15 beds…The SLA was negotiated and agreed by myself with the provider in this case Chancellor Care Ltd. In the case of Cawston Park I was able to visit before they even opened. They invited Robin Brook to come and have a look and at the last minute he asked me to go with him and see what they were intending to offer. He was there for the first meeting when we negotiated the 6 bed contract, and he came out there with me when we reviewed the situation after about a month or so but he did not come again and was not there when we renegotiated for the 9 and 15 bed agreements, I was on my own when I negotiated these. The NHS has a standard Service Level Agreement on their website and I downloaded this and adjusted it to meet the needs of our arrangements with Cawston Park…The agreed SLA was then signed by me and a director from Chancellor Care Ltd. The SLA is time limited so the first ran to the end of March so over 12 months then the next was for twelve months in line with NHS guidelines the 3rd was for 2 years with a clause to allow for a price change after 12 months. This agreement was a big part of my expenditure starting at£800,000 when we had 6 beds rising to£3.7 million with 15 beds. Chancellor Care Ltd at Cawston Park had a concept known as extra care and it is the provision of this which is central to the current enquiry, but it is also our understanding of this concept that is important to the investigation. Initially when we first negotiated the contract I assumed it would be like “specialling” as it exists everywhere else. It would be charged as and when necessary and it would be for a couple of hours or a day or two or even a week. It was not until we got the first couple of sets of invoices which came out monthly that we found that people whom we assumed were on “specialling” which we now know as extra care were on it permanently, 24 hours, 7 days a week and were on it all month. This was totally new to us. When Robin and I first negotiated the contract they talked about “specialling” at£14 per hour. At that time other places were charging£30 -£32 per hour so this seemed like a good saving, when we discovered it was on permanently it did not seem such a good deal. Initially we thought that as we had negotiated a 6 bed contract so the core cost was cheaper than a lot of out of county placements and the “specialling” cost was half that of other providers we saw huge savings for the PCT. At the first meeting at Cawston Park I do not recall any mention of extra care and they talked about “specialling”
“My understanding at that point in time was that these patients were being specialled at 2 to 1 and 3 to 1. I am referring here to two or three extra people on duty specifically to care for these difficult patients. It was not until much later that I had a full understanding of extra care. None of these payments were surprising…Had I known that extra staffing had not been provided by chancellor care limited then I would have challenged the invoices and I wouldn't have paid for that extra care provision.”
“Strong growth in EBITDA from FY04 to Q1 05 has mainly been as a result of improved occupancy at Cawston Park as well as higher levels of Extra Care. ……. The number of patients on Extra Care increased by an average of 3.6. Being charged at£312 ppd, the revenue impact is£410k . Based on management's assertion that the marginal cost is negligible, this also represents the EBITDA impact.”
“It is evident that there were differing levels of awareness and understanding of extra care at Cawston Park. Senior managers and finance staff appeared to have the most awareness, whilst middle managers such as charge nurses have the least awareness (within the report he elaborates on this as these were often the most experienced staff and should be central to the delivery of care). Concern was expressed about staffing levels, particularly by senior nursing staff, that levels were not always adequate and high levels of agency staff were used. Senior staff could not recollect any interventions being provided by themselves or other senior staff for specific difficult patients over and above their normal duties. There was no reference found within the clinical records to extra care, as defined by Chancellor Care, in the progress note entries relating to increased or enhanced levels of observation. The only reference to the term extra care was found in relation to the use of the extra care suite. No clear evidence was found of review of individual extra care charging by clinicians and managers with an auditable communication trail between clinical and financial departments. It has been difficult to identify the availability and deployment of extra care resources, as defined, to those patients subject of extra care charges sample this part of this inquiry. Six of the ten patients had overnight leave granted whilst being subject of extra care charges. A minimum of 164 nights leave was taken equating to approximately£52,480 of revenue, based on the conservative daily average charge of£320 . Continued charging whilst the patient was out of the hospital will be difficult to justify should the commissioners wish to have queried it. Knowingly charging for service which has not been provided is highly questionable and is both unethical and unprofessional.”
“As extra care was a major revenue stream for Chancellor Care Limited, particularly in the fiscal (sic) 2004 and 2005, one would expect to find clear transparent processes in place for the assessment, planning, implementation and recording of any additional or extra service being provided. This is not evident from the records which were audited.”
“He invented the term extra care and was responsible for virtually all the reports justifying extra care. However, his position was that extra care was simply not provided; it was a fraud.”
“…From Monday to Thursday, we had a number of witnesses some bad and some superficially extremely favourable to the prosecution. We had Linda Todd who was a dull witness. She was a parcel of good news and bad news such that neither side overall moved forwards or backwards with her evidence. All seemed set to move forward as planned until Mr Cooper was called. On the face of it, whilst he gave evidence antagonist to Mr. Deveney neither side saw him as particularly significant. How wrong can you be. Mr. Cooper’s evidence changes everything. …. Gary Cooper was to emerge as the most experienced psychiatric nurse to give evidence with wide well researched knowledge. He was recruited as the hospital manager, leaving Mr. Devaney still Head of Care. Although his main evidence was not foreseen, there was nothing in his witness statement to put us on enquiry. He was dynamite. He had the utmost contempt for Mr. Devaney. He gave detail for his opinion. Consistent with his statement he said he knew at the time there was an extra care charging system. He did not know who was on extra care but it was in his opinion, obvious to him who would attract the charge and he said, it would be obvious to any professional at the hospital. When the actual last 4 subject to the charge were identified, he asserted that at that time, the 4 of them absorbed a third of the hospital resources. He gave very detailed evidence of why this was and how it worked. He said that there was plenty of staff. He said he had made a comparison with the principal NHS hospital in Newcastle and Cawston came out very well. He returned to the theme we had had from other witnesses that the dependency on agency staff was a nationwide problem. He explained the reasons. He also maintained that at Cawston the national problem had been exacerbated by Mr. Devaney’s lack of personal management skills. He was quite clear that neither Defendant put any limitation upon the ability of himself or Mr. Devaney to recruit as many agency staff as in their judgement was required. This was flatly contradictory to the evidence of Mr. Devaney. He flatly contradicted Mr. Devaney’s evidence that he, Devaney, had complained to him about staffing levels. Whilst the hospital manager, gave evidence to the effect that those patients being charged for extra care received a far greater proportion of existing resources and clinician’s time than those patients not subject of the charge. It was a legitimate and fair charge. Although when he started his evidence on Thursday he sounded slightly petulant merely with an agenda to attack Mr, Devaney, on Friday the “mood music” changed. He became a man of stature whose evidence may be wrong but I simply cannot be rejected by any fair minded properly directed jury. …. The position now is that the only evidence upon which we can sustain a prosecution is that of Mark Devaney. He is a witness whose integrity has been significantly damaged by the testimony of other prosecution witnesses. His explanation of the alleged fraud has been undermined by, amongst others, the founder of Cawston Park, its Director, its Manager, its principal psychiatrist and the principal commissioning officer for Norwich PCT during part of the time scale said to encapsulate the currency of the alleged fraud.”
“Mr Deveney was the whistle blower. He had been Head of Care. He reported the matter in January 2006. Over time he gave statements to support his accusation that there had been a fraud on the National Health Service. He said he had been party to the dishonesty. A policy decision has made not to prosecute him but to use him as a witness: he had been neither shareholder nor director and his remuneration had been proportionate to his employment. The accusations centred on charges for "extra care…which on his account was a non existence service. His evidence was that whilst eve1yone received proper care it was by stretching the available resources, including himself, to the limit. He said that both he and Dr Barker were either at work or on call for 168 hours a week for well over a year with little holiday. His evidence is encapsulated in the following passage from page 4 of his statement made on the6th April 2006 . “I had been informed and repeatedly reminded by Dominic Wilson and Andrew Breeze that financial projections for the company required 12 extra care charges to be made on the Cawston Park Site. Charges for extra care were purely financial/accounting exercise and bore no relation to any increased level of service to those particular patients. Clinical staff working on the wards were unaware of which patients attracted charges for extra care.””
“For someone on extra care as I understand it and have described it in this statement to be given periods of unescorted home leave is absolutely outrageous. The very nature of extra care and specialling is that the client is in a period of distress, a danger to themselves and someone else. You don't send them on leave and still charge for that level of extra care. That would be a complete no no.”
“I have been asked the question? Is there any difference at all in the treatment of a patient who is on "extra care" as opposed to a patient who is not on "extra care? The answer to that's got to be no because "extra care " was never extra.”
“We remain troubled as to how the evidence of the significant witnesses, Chancellor, Prior, Barker and Brook all conveniently shifted in the same way to the defence, John Farmer lives locally and has seen that Mr. Breeze has launched a media campaign. He has made a complaint against the police. For him to contend - as appears to be the case - that he cannot understand why he was prosecuted is simply absurd. He is demanding an enquiry. It is not for us to say but it may be that the only enquiry likely to throw light on where this case went wrong is an enquiry into a conspiracy to pervert the course of justice. Mr Breeze - in the light of his conduct - is the most likely person to have orchestrated such a conspiracy. We are experienced enough, however, to recognise all the down sides of such an enquiry. It is signally interesting that Wilson has remained silent.”
“The evidence strongly suggests that DC Baker attempted to mislead the independent investigation in his prepared statement by indicating DS Brownsell briefed him as to the status of DLA Piper during the interview contrary to earlier assertions to the professional standards department.”
“Malicious prosecution is one of the most serious allegations in our jurisprudence. It is akin to fraud and imparts an assertion of deliberate dishonest behaviour on the part of the defendant. In order to succeed the Plaintiff faces a considerable task.”
“Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.”
“45. As already noted, the MPC accepts vicarious responsibility for any tortious liability of DCS Cook. She also accepts that, in principle, there may be more than one prosecutor in an individual case. As the judge noted in paragraph 144 of the judgment: "144. The case law establishes that an individual or group of individuals may be treated as the prosecutor where i) they alone know the facts about the alleged offence. ii) they deliberately misstate the facts to the person who makes the decision to lay the charge and so start the criminal process. iii) they intend that there should be a prosecution. iv) the person who decides that the charge should be laid and prosecution brought cannot be expected to and does not form an independent judgment on the question whether or not a charge should be laid and if so which." He also cited a passage from the judgment of Brooke LJ in Mahon v Rahn[2000] 1 WLR 2150 , paragraph 269 as follows: “269. In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?”
“50. The judge referred to certain passages in the judgments in this court in AH(unt) v AB[2009] EWCA Civ 1092 , which were also relied upon by Mr Johnson QC before us. This was a case in which AB alleged that she had been raped by AH. After the lapse of some time she complained to the police, who persuaded her to give evidence. She did so and AH was convicted, but his conviction was quashed on appeal. Blake J held that she was not the prosecutor and that decision was upheld on appeal. First, it was not proved that she had the desire and intention that AH should be prosecuted, but also (per Sedley LJ at paragraph 3): "The answer of principle is that, even if AB had gone straight to the police and made it clear that she wanted Mr H prosecuted, the independent intervention first of the police and then of the CPS would, in the absence of proof that the prosecution was in reality her doing and not theirs, have made the latter the prosecutor."”
“Even if she had gone directly to the authorities, the professional responsibility for the case assumed first by the police and then by the CPS would prima facie have made the latter for all legal purposes the prosecutor. It would have been necessary to establish that she had deliberately manipulated them into taking a course which they would not otherwise had taken if, pursuant to Martin v Watson, she was to be regarded in law as the prosecutor.” (my emphasis) 51. Wall LJ and Moore-Bick LJ agreed. Wall LJ said, at paragraph 5: “In my judgment, provided the CPS makes an independent decision to prosecute, and its process is not overborne or perverted in some way by the complainant, the complainant is protected.”
“More importantly, however, I think he was right to hold that this was not a case in which the prosecuting authorities were deprived of the ability to exercise independent judgment. Unfortunately, cases of this kind, in which the complainant's word is pitted against that of the accused, are not uncommon, especially if there has been any significant lapse of time between the events in question and the investigation. However, that does not normally prevent the authorities from assessing the credibility of the complainant by reference to the inherent plausibility of the account and such circumstantial evidence as may be available. As to this, I entirely agree with the observations made by Sedley LJ in paragraph 47 of his judgment. In my view the Court should be very cautious before reaching the conclusion that the authorities were unable (or even, as Mr Warby emphasised, virtually unable) to exercise independent judgment.”
“The question is a double one: did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution?”
“It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution.”
“The authorities which I have cited demonstrate that the CPS’s failure to undertake a line of inquiry which might just have been relevant to the Claimant’s defence does not negative the existence of reasonable and probable cause.”
“A Claimant cannot ordinarily be expected to produce direct evidence on these matters.”
“an intentional tort of considerable gravity.”
"Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office."
“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”
“The tort is only complete at the point at which recoverable loss is incurred, which includes damage done by an investigation and prosecution.”
“Officers demonstrated malice by engaging in intimidating and oppressive behaviour. For example, the Defendant’s officers threatened Mr Ward after the tape had been turned off in interview.”
“Despite telling me what Extra Care is not, you do not give the same clear, concise and absolute description of what it actually is.”
“The term “Extra Care” has been attached both to the provision of a humane, interactive clinical environment for difficult patients and to a financial levy, although the two usages have different meanings (financial and clinical). The nature of any relationship between the two usages is not made clearer by the reasoning used to explain the term “Extra Care”, although it does appear that the moral imperative of providing a humane environment for patients became a cloak to automatically justify “Extra Care” charges without subjecting those to further scrutiny.”
“…it was a charging mechanism…” and hence staff delivering it would not know that they were doing so”. (c) Mr Breeze also said that extra care was a “financial term”, which was implemented depending upon the clinical information that was coming in, a mechanism for charging for the more difficult patients. “There were daily discussions on a daily basis between the clinicians and Simon Barker and Mark Deveney” which fed back into the charge, although these were not recorded and the clinicians were unaware of the concept of extra care. This conflicts with the evidence of Dr Barker.”
“It’s a way of identifying the particularly challenging risky difficult patient that we’d expect to be using more of our resources, or being more risk to us.”