When charity trustees’ decisions are challenged
As charitable provision of health and social care grows, so too does the need to take difficult decisions – including closures – and the risk of legal and other challenges to those decisions.
Recent Charity Commission scrutiny of a decision to close a hospice offers a pointed reminder to trustees that any decision to close or move a residential centre – whether a hospital, care home, hospice or otherwise – is likely to generate substantial public concern. Increasingly, this concern can lead to legal or regulatory challenge, and heavy scrutiny of the process followed by trustees in reaching their decision.
In this article I want to look at the recent Charity Commission scrutiny of St Margaret’s Somerset Hospice’s remodelling of its services, which will involve controversially closing its in-patient unit in Yeovil. I will also consider some of the other ways in which decisions of this nature have been challenged in recent times, and ways in which trustees can protect themselves from those challenges.
Trustee decision-making
St Margaret’s Somerset hospice delivers care to patients and their families who are facing a life limiting illness. The trustees of the charity made the decision to close its in-patient unit in Yeovil. However, in the wake of this decision members of staff, volunteers and the local public were very concerned about the proposal and commenced a social media campaign to prevent it. The local MP also became involved in the protests.
Complaints were made to the Charity Commission about the trustees’ decision-making which resulted in the Charity Commission opening a regulatory compliance case to assess whether the trustees had followed proper process.
As the regulatory body which examines the actions of trustees in the charity sector, the Commission must investigate any accusations of wrongdoing and, if necessary, carry out a statutory inquiry to understand what has gone wrong and how it can be fixed. If the Charity Commission decides that a charity’s trustees have not acted in the best interests of the charity, it can exercise draconian powers, including removing trustees.
In the case of St Margaret’s Hospice, however, the Charity Commission was satisfied that the trustees had complied with their legal duties in reaching the decision, and that they had undertaken a comprehensive review of services which resulted in a decision that was informed through accurate and up to date information. Ultimately, the Commission were satisfied that the trustees had taken “a decision that a reasonable body of trustees could make”.
Ways of challenging decisions
Complaining to the Charity Commission is only one way to challenge decisions of this nature. Another is through public campaigning, and charities considering a closure will inevitably face this to some degree, and therefore need to think carefully about how to engage with it. Having said this, one is seeing much greater appetite from claimants (and their lawyers) to use other legal routes to challenge.
Such challenges have included: threatened judicial review legal proceedings (on the basis that the charity was carrying out public functions by operating publicly funded care homes); claims for breach of residents’ rights under the Human Rights Act 1998; legal proceedings for breach of trustees’ obligations under the Charities Act 2011, and complaints to the Charity Commission itself.
There is a lot that a determined complainant can do in the courts to stymie a decision. These different legal routes can lead to different courts and different remedies, but what they all have in common is that they will be expensive, time-consuming and stressful to defend, and can fatally undermine the trustees’ decision, and ultimately confidence, in the trustees themselves.
It is therefore vital that trustees rigorously ensure that they comply with their legal duties in reaching a decision of this nature.
Making the right decisions
Trustees are under a legal duty to act in the best interests of their charity, which includes taking appropriate advice from experts where it would be prudent to do so. Decisions must be made by trustees collectively - having considered all of the facts, whilst disregarding irrelevant material - and this can be difficult to do where issues are emotive. Trustees need to make sure that enough information has been gathered and examined to ensure that they can take a reasoned decision.
Furthermore, conflicts of interest can be a significant concern in these areas, and trustees are reminded that they have a legal duty to avoid conflicts, noting that perceived conflicts can be as problematic as actual conflicts on occasion.
In the case of St Margaret’s, the Charity Commission noted that before reaching the decision to close the centre, the trustees had “over several years, undertaken a comprehensive county-wide review, consulted widely with stakeholders, undertaken research and taken advice from experts in palliative and end of life care”.
The Commission clearly relied on this in reaching their view that the trustees had obtained enough information from their stakeholders to enable them to take a reasonable and reasonably well informed decision.
There is no one-size-fits-all approach, but trustees should consider very carefully how they will engage with patients and other stakeholders before reaching a decision of this nature. There is a real risk that a decision taken without that engagement would not withstand legal scrutiny – whichever legal form that takes.
The Charity Commission also noted with approval that St Margaret’s had self-reported the proposal to the Charity Commission as a serious incident report. This underlines the fact that it pays to be on the front foot with the Commission. However, it is also an important reminder that self-reporting does not prevent or limit regulatory investigations; trustees must self-report where required and be prepared to prove that their governance stands up to scrutiny.
Careful risk assessment
Where there is a reconfiguration of services which results in residents or service users needing to move for their care, treatment or accommodation providers need to ensure that any transition is managed carefully to limit the risk of quality or safety failures, which could have a serious personal cost for the individuals in question and create risk for the charitable provider.
Residents often have complex and overlapping physical and mental health needs which are managed by myriad providers and any transfer therefore requires careful risk assessment and planning. Clearly, any transfer to a service less able to manage the individual’s needs is fraught with difficulty, but even when the service provider is well equipped to manage the service user’s needs it should have all the necessary clinical and other information to ensure a seamless transition.
The view from the CQC
There is currently a Care Quality Commission investigation into an alleged criminal failure to provide safe care and treatment, in circumstances where aspects of the patients care were not clearly communicated on transfer. The patient subsequently died very shortly after transfer in circumstances where it was not clear what level of observation was required at night, and this had in fact not been communicated clearly.
My colleague GILL WEATHERILL says: There are increasingly claims, inquests and other regulatory scrutiny of providers which identify risk assessment and information sharing as the root cause of service failures when vulnerable individuals are moved. Coroners, in particular, are fond of referring to the “cracks in the jigsaw” when failures in communication result in harm to patients and service users.
The Care Quality Commission (CQC) - as the regulator of health and social care services, and also the primary prosecution body in the event of failures to deliver safe care and treatment - will also focus carefully on the risk assessment and care planning of individuals. This may be as a part of routine inspection, following concerns being raised by family members, or as a result of particular incidents being reported.
Making the right choices
Trustees must be on the front foot when it comes to regulatory scrutiny by both the Charity Commission and the CQC. They should be ensuring due process is followed, understanding the risks and potential gaps in service delivery as a result of decision-making, and ensuring a proactive approach to the potential challenges that they may face – including self-reporting to the Commission.
Regulators are concerned with the safety of patients and service users, thus appropriate risk assessments are essential to fill any of the “gaps in the jigsaw” so often mentioned by coroners.
Good governance is fundamentally about ensuring trustees are making well informed decisions, and that the charity is prepared and proactive when demonstrating that the charitable objects and best interests of the charity’s service users sit at the heart of decision-making.
