NI health trusts ‘able to sideline abuse cases at will’

Health trusts in Northern Ireland are effectively able to prevent criminal investigations into allegations of abuse within their own care, it has been claimed.

The joint protocols between HSC and the PSNI appear to give health officials the final say about whether police can commence investigations into suspected mistreatment of vulnerable adults.

Scope has received allegations that current guidelines allow cases of suspected abuse to be covered up.

Nurse Kevin Murray previously won damages from a nursing agency over allegations he was sidelined from his work with the Belfast Trust after he blew the whistle on a case of alleged substandard care.

Mr Murray said: “What the joint protocols between HSC and the PSNI have done is effectively devolved some justice powers to the trusts. This means that in some cases, specifically those involving vulnerable adults, there is a two-tier policing situation.

“The statutory rights of the vulnerable are therefore able to be breached – but they should be entitled to the same treatment as the rest of us.”

He told Scope that police officers have told him off the record that they cannot follow up allegations of abuse in statutory settings without a formal referral from the relevant trust.

These issues have already been raised at Stormont. In 2013, UUP MLA Michael Copeland raised concerns about what he said were protocols that “effectively allow Health and Social Care Trusts to police themselves”.

Here we analyse whether current legislation has any flaws that would allow such situations to happen.

Protocols and guidelines

A 2009 document – Protocol for Joint Investigation of Alleged and Suspected Cases of Abuse in Vulnerable Adults – prepared by HSC, the PSNI and the Regulation and Quality Improvement Authority (RQIA) outlines the interagency procedures for dealing with suspected abuse of vulnerable adults.

It says: “Where criminal abuse may have been committed a referral between the agencies should be made and an agreed strategy should be developed which takes account of the wishes of the alleged victim… After referral between agencies the agreed strategy should take account of the wishes of the alleged victim.”

Here we see that trusts have a duty to report criminal allegations to the PSNI, before mentioning an “agreed strategy” – i.e. that it is anticipated health officials have at least some say in the decisions made after this point, rather than simply providing a candid role of advice.

In its section about referrals to the PSNI by trusts it states: “In all cases of alleged or suspected criminal abuse the Designated Officer for the Trust should discuss the case with the relevant Police Liaison Officer.

“It will be the responsibility of the Police Liaison Officer to help determine whether the matter may involve criminal abuse and thereby to inform the decision concerning what level of enquiry/investigation is necessary.”

This means there is a requirement for trusts to have a conversation, to some extent, with a specified point of contact within the PSNI.

However, crucially, the final say about whether there should be a formal referral for police investigation apparently lies with the trust – a matter clarified at Stormont.

In 2013, Michael Copeland received an answer to a written question in which he asked “in light of the joint-protocols with the PSNI that effectively allow Health and Social Care Trusts to police themselves, who is ultimately responsible for this policing process?”

Edwin Poots, then Health Minister, responded by saying: “The decision whether or not to refer cases of alleged or suspected abuse of vulnerable adults to the PSNI is a professional decision taken by a HSC Trust Adult Protection Designated Officer (Designated Officer).

“The Designated Officer must act in accordance with the ‘Protocol for Joint Investigation of Alleged and Suspected Cases of Vulnerable Adults’ (Joint Protocol), which provides a framework within which staff exercise their professional judgement and discharge their legal responsibility.”

He said further that the system provided clear accountability and that the RQIA and Criminal Justice Inspection NI (CJINI) had reviewed the structure and found it to be “responsive to allegations of abuse to vulnerable adults, whilst conforming to the regulations, policies and procedures.”

Room for manoeuvre

Clearly the structures around trusts are not built to cover up abuse. For instance, frontline staff all have a fundamental duty of care to those they are looking after, while the document on joint protocols itself says the interests of the relevant vulnerable adult are “paramount”, and states:

“This Protocol is designed to be compatible with current ‘Safeguarding Vulnerable Adults’ guidance in requiring all staff to report suspected, alleged or confirmed instances of abuse. It provides a framework within which staff exercise their professional judgement and discharge their legal responsibility. It ensures that all cases are given appropriate consideration and are not screened out inappropriately.”

However, there does appear to be a kink in oversight here that allows trusts to police themselves, at least in the initial stage.

More bureaucracy is not always a solution to the problem, but it seems perverse that allegations of abuse are not immediately placed in the hands of someone independent – whether that is a regulator, or the PSNI themselves.

This might be less concerning if our trusts were strongly regulated elsewhere. However, the RQIA itself took a beating in the Donaldson report published in December.

One of the paper’s recommendations was “better regulation”, saying the RQIA does not really provide any effective regulation of trusts, which provide the majority of HSC provision, a “lighttouch role [that] seems very out of keeping with the positioning of health regulators elsewhere that play a much wider role and help support public accountability.”

Another of Donaldson’s ten recommendations was for “a much stronger patient voice” – under which the first proposed measure is that “more independence should be introduced into the complaints process”.

Fudged legislation can lead to uncertainty and provide wriggle room where poor practice can flourish.

In light of the apparent structure of justice investigations within health trusts, and the allegations of specific inaction over suspected abuse put to Scope, DHSSPS needs to ensure its agencies are regulated in robust fashion.

Any starting point should involve ensuring decisions that should be made independently are done so.

Scope has repeatedly made contact with DHSSPS since June 24 looking for a response to the matters raised in this story. While our queries have been acknowledged no answers have been provided up to the time of publication on July 3.

UPDATE: The Health Department responded to our queries on the afternoon of July 3, following publication, saying the protocol is an "operational instrument, designed to promote and assist effective interagency working" between health and justice bodies.

"The operation of the Protocol was jointly reviewed in May 2011 by the RQIA and Criminal Justice Inspection Northern Ireland. The purpose of the review was to assess how effectively the Protocol had been implemented by HSC Trusts, the HSC Board, PSNI and RQIA since its introduction in 2009. 

"The review team concluded that the Protocal represents a good example of how public services can find effective ways of working for the benefit of citizens. The review report contains recommendations for the HSCB, HSC Trusts and PSNI."

DHSSPS said neither it nor HSCB are aware of any cases where a trust has quashed complaints of abuse when frontline staff believed police involvement to be appropriate.