Care homes will regularly have contact with the Care Quality Commission (“CQC”) and their local safeguarding team. However, when an incident occurs which warrants investigation, the relationship can shift. Both the Police and regulators have various powers that they may use to assist with their investigations. How and when these powers are used can be an area of confusion. Each investigation is unique and there is no one typical approach. Various factors will impact and shape how an investigation progresses, for instance, where there have been historic concerns about an organisation, this might lead to a more robust approach being taken by those investigating. Therefore, whilst no one can predict how an investigation will unfold, this article highlights key areas to consider during any investigation, as well as some suggestions on how to approach what is a very challenging situation.
A key consideration throughout any investigation is the need for good communication. This includes communication with the Police and/or regulator. However, it extends beyond this to include employees, service users and their families. This is an aspect that is often forgotten and can lead to confusion and resentment. Depending on why the investigation may have been instigated, it is highly likely that the home will continue to operate. Therefore, having confused and concerned employees and service users will inhibit the operation of the home. Moreover, this will make a further incident more likely to happen as processes and procedures might get missed.
Depending on the nature of the incident the duty of candour as contained within Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Irrespective of whether this duty is engaged, careful consideration should be given to how those affected by the incident and their relatives are kept informed of what has happened and how this communication continues as the investigation evolves.
Similarly, employees should be notified of what has happened. This will help avoid speculation. Moreover, the communication can remind employees of their contractual obligation to keep matters confidential and not to discuss what has happened outside of their employment. This is particularly important as there may be press interest and whilst employees may try and assist by making comment, this may cause difficulties, in particular if it has not been possible to speak to family members fully yet. Employees should therefore be advised of who to contact if they receive any enquiries from the media and/or enquiries more generally about the situation. Depending on what has happened it might be appropriate to have two separate individuals dealing with the different enquiries or a single person.
Where a particularly traumatic event has taken place, this can be managed proactively through the provision of counselling services. This can involve professional counsellors attending the home, as well as the provision of telephone hotlines. Everyone responds to an incident differently, therefore, having an ongoing telephone hotline provision accommodates those who are more greatly affected by the incident later.
Managing communication with the investigating parties is also key. Having a designated individual who is responsible for managing information and document requests will mean that these are responded to promptly. This will also ensure that there is clarity on what has been requested and what has been provided.
It is important that evidence is gathered as soon as possible following an incident. This includes obtaining witness statements, but also collating relevant documentation. As an organisation you are likely to have a greater understanding of the key materials, than those who are conducting the investigation. Therefore, where requests for material seem to be very wide simply due to the investigator perhaps being unclear on what they need, it may be appropriate to engage with them and discuss what it is they are looking for.
The Police and different regulators have varying powers of entry and seizure. They should therefore not be obstructed. However, if you feel you are able to assist them in the process, as above it may be appropriate to discuss what they are looking for. Such conversations are not always appropriate and they should not be conducted with the aim of defeating the request, for instance diverting attention from one set of documents to another.
As highlighted above, it is important to keep track of what original material has been taken and what has been copied; as well as by whom and when. It is too easy for documentation to be provided and then no record kept of this. This information might contain key materials in any investigation that your insurers and/or lawyers need to know about to advise you.
In the course of any investigation there is likely to be cause for interviews with service users and employees. Subject to there being no suspicion of a criminal offence being committed by those individuals, these will be done on a voluntary basis. No one can be forced by an organisation to attend a voluntary interview, however, it can be highlighted that co-operation would assist the investigation.
These interviews might seem very daunting, especially when the individual is advised that the statement will be taken in a Section 9 of the Criminal Justice Act 1967 compliant format. Moreover, if an individual were to make a false statement then they could be charged with perjury and/or perverting the course of justice. These offences are not brought regularly. Nonetheless, the process can seem very daunting.
Appropriate support should be provided to those taking part in voluntary interviews. For instance, making accommodation, if appropriate, that these can take place at the home or giving time off to those who have been requested to attend. Additionally, those being interviewed individually may be allowed to have a friend or colleague (who has no involvement in the incident) sit in with them. It may be that the individual would like someone from HR to attend with them. These requests may be declined. However, making these requests as soon as possible will mean that individuals have time to prepare themselves and feel at ease with the process.
Whilst individuals can be spoken to and the organisation can take their own statements, individuals must not be told what to say at interview. They should be open and honest with those interviewing them.
Should an individual not want to participate in a voluntary interview, then a regulator may consider using their powers to compel them to answer questions. These powers are often described as Section 20 powers which originate from the Health and Safety at Work etc Act 1974. The CQC; Health and Safety Executive (HSE) and Local Authority Inspectors can require an individual to answer questions, but this information then cannot be used against them in their individual capacity.
Interviews under Caution
Where an organisation or individual is suspected of committing an offence, an interview under caution will almost always be conducted. Attendance at an interview under caution can be daunting and obtaining legal representation is strongly recommended. In the case of organisations all too often the importance of the interview under caution is not fully appreciated. However, this is the opportunity to put forward any defence. Once the interview under caution has passed, an adverse inference can be drawn regarding any defence later advanced.
There are different ways of approaching an interview under caution. For an organisation, one individual may be nominated to speak on its behalf. Alternatively a pre-prepared statement might be drafted on behalf of the organisation. This approach may be used where there is a large organisation and it would not be possible for a single individual to answer all the questions and issues outlined in the advance disclosure. However, it is not a case of one size fits all. The approach to be taken needs to be carefully considered in light of all the information available.
Managing investigations by the Police and/or regulators is a difficult and time consuming process. This article touches on some of the investigation methods and powers that those bodies have. However, each investigation will be unique to the specific facts.
One consideration for organisations is the need for an effective crisis management plan. The plan should contain details of who to contact in each circumstance and how to proceed with investigating the incident. Having a plan ensures that not only is the investigation being managed, but also that issues such as effective communication and counselling are engaged early so that employees and service users are reassured throughout the process.