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Updated Report on the O’Brien Inquiry

Proud to be in UNISONInquiry – General Comments

1.      Introduction

1.1. This response updates UNISON’s interim response of December 2003. Much of the content is similar, although specific sections have been updated (indicated in italics), an appendix outlining detailed examples of problems with the content of the O’Brien Report has been added, along with a ‘Conclusion’ section.

1.2. We also address some of the issues arising from the North East Child Protection Committee Inquiry into the death of Carla Bone, particularly in relation to resources and understanding of ‘risk’ and ‘concern’.

1.3. The full text of the O’Brien Report can be found at
http://www.edinburgh.gov.uk/social_work/calebness/calebness.html
and it is important that the full document is read to fully understand the issues outlined below.

1.4.  It is important to note that, following full consideration, the Branch cannot recommend this report as a benchmark for the development of Child Protection services in Edinburgh or Scotland. It is the branch’s view that, while the report addresses fundamental issues, there are sufficient flaws in its understanding, analysis of evidence and conclusions to encourage strong caution against it being used as a basis for changing elements of child protection practice without very careful consideration.

1.5. It is the Branch’s view that the report does not have the robustness or credibility of previous reports like the Edinburgh Inquiry or the Victoria Climbie Inquiry. Its approach means that it does not have the analytical weight of the North East Child Protection Committee Inquiry into the death of Carla Bone.

1.6. UNISON City of Edinburgh Branch has carefully examined the whole report and has spoken to many witnesses who gave evidence to it. As the report itself indicated, it only quotes parts of the transcripts selectively. This, we believe, has led to some witnesses having comments or answers published without the full context of their evidence.

1.7. The Branch believes that the Inquiry has addressed some fundamental issues which need to be addressed, particularly in relation to communication between Health Services and Social Work. It notes that, while the media coverage has focussed mainly on the Social Work role, the majority of recommendations in fact apply to other agencies.

1.8. The Branch supports the majority of the recommendations but has concerns about some and this is discussed below.

2.  General Comments

2.1.  Witness participation

2.1.1. Witnesses to the Inquiry were told the proceedings would NOT (in capital letters) be adversarial and were urged not to bring legal representation. Many chose not even to take UNISON representation. All regretted this. The predominant theme is that witnesses experienced the inquiry as hostile and combative. Many felt that the excerpts of their evidence which were published gave an unfair picture.

2.1.2. While the Inquiry recognised that witnesses genuinely attempted to fully co-operate and were genuinely committed to child protection, some have now found that their evidence and the evidence of others, in what was meant to be a quest to learn lessons, has resulted in disciplinary investigations. The role of the inquiry in this process is unclear.

2.1.3. This presents a considerable problem for UNISON in terms of what advice it may give to members asked to participate in any future inquiry.

2.2.  Selection of witnesses

2.2.1. Some key witnesses had to request to be heard. The Director was commented upon but not called as a witness. One professional was accused by the inquiry of not passing on information but from the report it appears they were never called to be asked whether this was the case or not.

2.3. Analysis of evidence

2.3.1. As outlined above, the Branch has concerns about the analysis of evidence. While we do not have access to the transcripts in their entirety (at the time of writing), a general reading of the report throws up a large number of inconsistencies in the inquiry’s conclusions from its own evidence. It throws up even more when witnesses have been debriefed.  While we cannot argue with several aspects of the conclusions it makes from its own evidence, there are significant areas where we do take issue.

2.3.2. The report often contradicts itself, it accepts evidence it has already rejected and it draws conclusions about some staff without even calling them to the inquiry. It chooses to believe evidence from some witnesses with no corroboration, yet rejects evidence from some witnesses despite corroboration. It, in some areas, makes recommendation based on no evidence apparent in the report.

2.3.3.  It is inaccurate in some areas and often displays a lack of understanding or cognisance of the law relating to child protection and the child protection procedures. In one statement it criticises for not following child protection procedures, yet in another it contradicts the existing child protection procedures.

2.3.4. It is the view of the Branch that several conclusions made by the inquiry are not based on its own evidence and are unfair on the people concerned who had no opportunity to rebut.

2.4.  Fairness to those most closely affected

2.4.1. The inquiry makes no comment at all on the sensitive and very difficult follow-up work done by professionals in this case

3. Comments on recommendations

In many cases, the recommendations make sense and provide a way forward to improve communication and support staff in this very difficult task. This is particularly true of those relating to monitoring and training.

However, in others, recommendations do not follow from the evidence.

3.1.  Senior Practitioners

For example, the inquiry report leads no cogent evidence for its recommendation that Senior Practitioners should not chair case conferences, other than an apparent hierarchical assumption. In Edinburgh, chairing case conferences is part of the job description of Senior Practitioners (paid on almost the same scale as Senior Social Workers). This recommendation has caused enormous problems in staff availability to chair case conferences within timescales. It also has implications for the important role of the greatly valued Senior Practitioner job.

3.2. Generalisation from the specific

Another example is that the Inquiry generalises across the Department from specific instances. Several recommendations were already practice over large parts of the Department.

3.3. ‘Culture’ issues

3.3.1 The inquiry made a major point of criticising an alleged ‘culture’ that children should be with their parents. It does not enlarge on this or lead any convincing evidence for this. It ignores a huge body of research that shows that children in general do far better in their own families (if they can live there safely) than they do in corporate care.

3.3.2. The Children (Scotland) Act presumes that legal parents have full parental rights and responsibilities.

3.3.3. To remove or keep a child away from the care of its legal parent, there needs to be current (not just past) evidence of a lack of parental care to a level causing harm. The medical reports on Caleb Ness’s development showed no such concern.

3.3.4. There is no legal or societal expectation (nor should there be) that parents require to be assessed before they can take their baby home from hospital. Obviously, if there are existing concerns, an assessment is required. On the basis of immediate action and investigation, past knowledge may have been enough to secure a Child Protection Order (although not with any certainty) but when it came to continuing to keep the child in care, the issue of current circumstances above would be the legal benchmark.

3.4.  Resources

3.4.1. The context of child protection in Edinburgh is that there are only 115 social worker and senior practitioner posts in practice teams. A 30% shortfall is predicted for 2004, leaving as few as 81 practitioners in post to deal with almost 3,000 children. It is likely that less than half of these will have the required child protection training.

3.4.2. The inquiry notes that no witness referred to ‘overloading’ as being an issue. Yet it failed to ask why certain staff were having to take on roles they should not have had to take. A long term starvation of resources is at the root of many issues mentioned by the report. Over time, a way of working builds up to accommodate the long term lack of resources and this does not appear to have been understood.

3.4.3. It is worth noting that Edinburgh lies bottom out of the four main cities in its expenditure per head of population for social work services. However, the Scottish Executive also has a role with Edinburgh lying 13th in the Executive’s Grant Aided Expenditure per head – third out of the four cities. This means that Edinburgh has to spend 14% (£20million) over this to provide its services. This is slightly less that the other cities.

3.4.4. So, while the Scottish Executive has been keen to make bellicose statements about improving child protection, it must share the blame for the long term underfunding of the services.

3.5.  Cause/Effect debate

When a child dies, there is often an assumption that something must have gone wrong. It is clear from the inquiry that a number of things across a number of agencies went wrong to some extent. It is difficult however to draw the absolute conclusion that this directly resulted in the child’s death. We note elsewhere the fact that even if legal measures had been sought, the situation might not have differed. This is a very difficult issue to debate with politicians and the public. However, it is important as a matter of fact to state that just because something went wrong, it does not in itself mean that it directly contributed to a death

4. Comments on the position taken by the City of Edinburgh Council

4.1. The City of Edinburgh Council took a decision to accept all recommendations of the Inquiry within hours of having received the report. Unlike in the Edinburgh Inquiry, it did not take time to consider the implications of the evidence base for the recommendations before committing to them.

4.2. As a result, as mentioned above, it has created a crisis in the chairing of case conferences with the removal of Senior Practitioners from a role that they were expressly created to fulfill.

4.3.  Call for resignations

4.3.1. The whole consideration of the report was marred by a ‘blood lust’ from the local media and some politicians for resignations.

4.3.2. The Branch took the position that the Director should not resign and had nothing to resign for. However he did resign which left the Department in a state of limbo, unable to fend off a series of political attacks and interference.

4.3.3. The Branch also took the position that the councillor responsible for Social Work should not resign. This was because of his reputation and the fact that he had delivered a real increase in resources for the first time in several years. This, in our view, was only limited by the previous unwillingness of the Labour Administration to allow more resources.

4.4. Statements by politicians

4.4.1.  Some politicians have been less than moderate in their statements. UNISON is taking advice on overt and unfair public criticism of senior and main grade officials by politicians of all parties.

4.4.2.  UNISON is particularly disappointed at comments made by the council leader about the worker at the centre of the issue and have already expressed a view that this may be prejudicial.

4.5. Allocation of new resources

4.5.1. The Branch has welcomed new resources in the form of long campaigned for administrative resources for case conferences and for extra inducements to retain and recruit staff in a situation where vacancies cannot be filled.

4.5.2. However it is extremely frustrated that such improvements were only recently rejected by the Council (before the inquiry) when put forward by the previous director.

4.5.3. It is the Branch’s view that the whole council (including each political party) has to take responsibility for long term underfunding of Childrens Services and it finds it galling that resources are only forthcoming after such a tragic event.

4.5.4. We also note above that Edinburgh is still bottom of the spending league on social work per head of the four cities and 13th in its allocation of funds from the Scottish Executive, meaning Edinburgh has to spend £20million over GAE. So the Scottish Executive must share the blame for the long term underfunding of the services.

4.6. Proposed reorganisation

4.6.1. While the Branch is not opposed to – and indeed has been pushing for – new ways of working, it considers that the political opportunism which has brought up the issue of restructuring at this time will only serve to further dash morale and hasten the exodus of staff from Edinburgh.

4.6.2.  The apparent preferred option of the Council Leader at this stage for abolishing the Social Work Department and merging elements with Education and Housing would seem to fly in the face of all the lessons from inquiries in recent years which all point to the need for better integration of community care, criminal justice and children and families services when it comes to child protection.

4.6.3. The crisis facing children and families social work is money, not organisation. Most staff are currently working exceptional hours with teams carrying unallocated cases. That is what needs to be addressed and not ducked by solely looking at further reorganisation.

4.6.4. Only when the allocation of resources is addressed can the detailed work on change being done by Children & Families workers and management be effectively implemented.

4.6.5. The existing (pre O’Brien) initiatives include a review of child protection, a review of duty systems and initiatives in staff development. Initiatives in many teams to make imaginative use of admin support and other non-social work qualified staff have been going on for some time and seem to have been gone unrecognised politically.

4.6.6. It is important to note that the most significant practice and organisational developments, along with initiatives to improve recruitment and retention, long pre-date O’Brien. However it is only since O’Brien that the funds are being made available.

4.7.  Management Structures

4.7.1. For years, political decisions have resulted in an unworkably slim management structure. The lowest graded member of staff responsible for all three specialisms (community care, criminal justice and children and families) is the second in line to the Director.

4.7.2. This means that many managers are bogged down with operational tasks when they should be concentrating on strategic tasks.

4.7.3. Many elements of the Scottish Executive supported reorganisation in Glasgow already existed in Edinburgh prior to an instruction from the politicians to cut back on management to save money. None of this is being addressed in the knee-jerk reaction to the inquiry.

4.8. Staff condition

4.8.1. The revised report on Remuneration and Retention has now been approved (after previously being rejected). It provides for a top scale of SCP 38 for main grade workers with the possibility of 6 month increments based, it seems, on competencies. This is very welcome but has devalued the Senior Practitioner role (already on this grade) and will leave Senior Social Workers on a lower wage than some of the staff they supervise.

4.8.2. There is a commitment to review the knock on effects for Senior Practitioners, Senior Social Workers and Practice Team Managers almost immediately. However, it may be that reorganisational elements may get in the way of this. The UNISON position is that unless these gradings are addressed urgently (particularly the key role of SSW which largely manages the unallocated work), we are heading for an even bigger morale crisis than at present.

4.8.3. This is further compounded by the suggestion that there is no money available to address the knock-on effects for other groups. If this is the case, there will be a management crisis at direct service delivery level. The likely outcome will be a huge increase in unallocated child protection cases.

4.9.  Unallocated cases

4.9.1. The Branch has been concerned that the real picture of unallocated cases, including child protection work, has not been made fully recognised by senior management or politicians. This has left main grade staff facing heavy demands and supervisory staff struggling to hold together what may be seen as a time-bomb. Teams reported 500+ unallocated cases in December 2003.

4.9.2. The Branch took a collective grievance against the lack of resources almost two years ago which was heard by councillors. The Branch position is that no councillor should therefore be able to say that they did not know the problem.

4.10. The future of child protection

4.10.1. The Branch welcomes the debate on the future of child protection. However it remains concerned that the focus has been on the investigative stage and the possibility of joint location with the police. There is no evidence to suggest that this would be a better way of working. Indeed there is evidence that addressing only this part of the process would not have prevented any of the deaths which led to inquiries in recent years.

4.10.2. The majority of evidence points to the need to have well resourced and organised risk assessment systems and therapeutic support after investigations. This is the phase when the real child protection work is done and the ongoing assessment and balance of risk becomes most important. It is therefore the area that needs to be addressed with more preventative services and community supports.

4.11.  Responses from management

4.11.1. Members have welcomed many of the immediate responses from senior management, in particular the audit of child protection cases which ensures that information (and therefore responsibility) is shared up the line. However there are concerns about the process and whether aspects which are related to systems rather than practice are being fully taken into account. The issue of resources is also not being taken into account. This all leads to individual staff members being left feeling they are holding the responsibility for matters well outwith their control.

4.11.2.  The lack of knowledge of the reality at the ‘coal-face’ has been evident in some of the instructions and staff have felt somewhat insulted by some very basic directives. While many measures have been seen as supportive, others have led to a feeling that staff on the front line will still be left carrying the responsibility for issues outwith their power.

4.12.  Staff morale

4.12.1.  Staff were shell-shocked by the report and by the hysterical local media coverage, reflected unfortunately by the reaction of some leading politicians.

4.12.2.  They initially felt encouraged that things would change to address the obvious resource issues that have left staff feeling they were practising unsafely for a long time.

4.12.3. Unfortunately, developments have been slow and if anything morale is even lower now, building to anger and calls for the union to take action to address resources and in particular, unallocated cases.

 

5. Staffing Inquiry

5.1. A staffing inquiry due to report by mid December will not report until late January at least. Stewards have been offered special training to represent the 14 or so members to be interviewed.

5.2. UNISON has made it clear, and received assurances on this point, that we will not tolerate any political interference in the process.

5.3. It has also made it clear that, if evidence from the inquiry is to be used, we would reserve the right to challenge the inquiry process and call witnesses from it.

5.4.  UNISON has cautioned the Council that, because of the shortcomings of the inquiry, it may find itself coming to different conclusions based on more robust evidence.

5.5.  The whole process does not sit easily with the inquiry’s finding that “No single individual should be held responsible.”

 

6. Professional issues

6.1. The inquiry and the comments by politicians have led to an important debate about professional child care issues.

6.2. We have mentioned above the issue of an alleged (but not evidenced) ‘culture’ that the child is always better with his/her parents. This is not the case in Edinburgh where staff would always qualify this with ‘safely’. We have also mentioned the body of evidence that shows that children generally fare better at home than in care.

6.3. However, another issue has arisen as to judgements about what might or might not be legal grounds to take a decision to remove a child from his/her family.

6.4. The ‘common sense’ position put by the report and the Council Leader is that where one parent had brain damage and the other was on a Methadone programme, they should never have been allowed to have the care of a child.

6.5. This may or may not be the case in any individual case. However, the Branch is sure that many families who have as one of their number someone with a brain injury or someone with a drug problem would not necessarily agree.

6.6. In any case, there is abundant evidence to show that disability or drug use alone do not define whether a child can be cared for safely. Indeed there is much local evidence that an alcohol problem in a family can be a far more critical situation.

6.7. Irrespective of all this, the question would arise as to whether under the current law, a Sheriff would have had grounds to issue an order to stop the child going home. We will never know because it was not applied for – but there is absolutely no guarantee it would have been granted.

6.8. The case has been put that if a Child Protection Order had been sought and refused, social workers would have been in the clear. This may have been the case, but it may also have meant that there were no protective measures whatsoever. Social Workers do not and should not think defensively. They must be given recognition for the fact they work with risk.

6.9. It is here where the inquiry falls far short of fair or informed. It implies, and does not qualify in not clarify in subsequent statements, that it would have been entirely within the legal power of social workers to stop the baby going home. This is not the case. It would have required a legal order.

6.10. The debate about whether (as the inquiry and politicians have expressed it) drug users should be allowed to have their children in general has been superseded by the Scottish Executive’s own work and its funding for projects designed to help parents address drug related problems at home with their children.

6.11. The Report does not take into account the medical approach to dealing with Methadone users. As far as UNISON can ascertain, the medical advice is that stability of use during pregnancy rather than repeated withdrawals is safer for the unborn child. The American Society of Addiction Medicine notes that withdrawal from Methadone during pregnancy is ‘rarely appropriate’. This has implications for the broad view that such drug use during pregnancy should be automatically seen as a lack of parental care.

6.12. However, there is a further debate to be had which was raised in the Council Chamber by Cllr Maginnis. That is, what are society’s views about what is good enough for children and where does this match with the law?  The NECP report addresses this important issue along with the plea that the CP Committee “should debate the need to develop guidance for staff in all agencies to identify a common understanding of what is meant by the terms ‘in need’, ‘vulnerable’, ‘neglect’ and ‘requiring protection’.” (See 1.1-1.4, pages 44-45).

6.13.   In the meantime social workers will always have to contend with the view from politicians that they should be able to take children away on ‘common sense’ grounds – unless of course it is their children. They will also have to contend with generalised but unspecific expressions of ‘concern’ from other agencies which do not accurately describe situations or prevent risk, but do serve to ‘cover backs’ if anything goes wrong.

6.14 For further comments on the legal context, see para 3.3

7.  Conclusion

7.1. It is UNISON’s view that the report paints an unfair picture of the circumstances of this case, the circumstances of the department and the practice of individual staff. In some cases this is a misleading picture.

7.2. The report does highlight important issues about multi-agency practice, specifically regarding Health and Social Work and in particular the problems of clear guidance in the Health Services about when patient confidentiality should come second to child protection. However these issues are also raised in much greater detail with more robust analysis in other inquiry reports.

7.3. The report raises important issues about communication and expectations between Social Work disciplines which need to be addressed in UNISON’s view via closer intra-departmental links and more resources for strategic management.

7.4. The report fails to fully appreciate the key role of the Child Protection Committee and its possible role in improving multi-agency responses to child protection. This issue is raised in Scottish Executive reports and in other inquiries. UNISON make constructive proposals on this in its response to reorganisation in Edinburgh.

7.5. The report states that the resource issue was outwith its remit, however it did comment and in doing so it failed to grasp or describe the resource context, probably due to its approach to witnesses who mostly felt that they were put on the defensive and could not fully express all the issues that faced them.

7.6. The report fails to grasp the legal issues, the concept of risk and the debate about the meaning of ‘concern’ and what is ‘good enough’ care. These are also much better addressed in other reports.

7.7 This failure led the report to make assertions that the parents should ‘never’ have had care of the child without addressing how this might have been achieved within the legal context.

7.8 The report uses sensationalist and judgemental language which implies an approach and atmosphere which affects its credibility.

 


APPENDIX A

UNISON CITY OF EDINBURGH BRANCH
Conduct of the O’BRIEN Inquiry

EXAMPLES OF CONCERNS

The report summary and the full inquiry report (264 pages) are available at http://www.edinburgh.gov.uk/social_work/calebness/calebness.html

The examples laid out below should not be construed as the only difficulties UNISON has with the report. They are merely some examples of the issues arising after several readings of the report and issues raised by members.

a. Experience of witnesses

i. The letter inviting staff to voluntarily attend the inquiry set a tone that was much different from the experience of members attending the inquiry (see P15 and Appendix A P256). They were largely given to believe that they did not need representation. The letter to them states, “The Inquiry team members will ask you questions, but there will be no lawyer (such as a procurator fiscal in a trial) putting any particular “case” to you. The proceedings will NOT (sic) be adversarial. We would therefore prefer you not to attend with a lawyer, but any witness may bring one friend, trade union representative, or lawyer if he or she chooses”.

ii. While it is true that proceedings were not technically adversarial in a strict legal context, there may have been more protection for witnesses if they had been. The experience of many witnesses was of aggressive questioning and occasional pejorative statements. Statements were put to or about witnesses with no opportunity for rebuttal.

iii. The Inquiry was presented as being a search for the facts to learn lessons. Witnesses voluntarily attended (there was no compulsion) with the aim of helping that process but experienced less as a search for truth and more as a search for blame.

iv. Some witnesses commented that they would have left the inquiry and sought to return with representation if they had realised what it was going to be like. It is perhaps significant that at least one commented that they felt too intimidated to do so. The inquiry itself comments on the co-operation of witnesses and their commitment to child protection, however the body of the report uses language that suggests otherwise.

v.  While the letter of invitation does refer to possible action by line managers, no-one was explicitly advised that what they or others said could be or would be used in future disciplinary proceedings against them. Witnesses were of course not permitted to challenge contradictory statements from other witnesses, despite the accusatorial position the inquiry seemed to be taking at times. This is an important issue in that the Inquiry in some sections chooses to believe one witness over another despite the absence of any corroborating evidence. While it was entitled to make such judgements, there are times when this appears to happen despite the weight of evidence.

vi. Pages 86 and 87 give an example of assumption and value judgement in the inquiry’s approach towards SW2, not least in selecting quotes out of context. The inquiry arrives at conclusions about other issues (ie ‘lack of coherent plan’) when at this stage that is not fully evidenced. Terms like (wrong) and (badly wrong) where inserted demonstrate a hostility to this witness’s honest recollection and an inappropriate use of pejorative language in such a document.

vii. P181 exemplifies an aggressive use of language towards a witness that is not justified from the inquiry’s own evidence. It mentions, for example, that the Social Work Department ‘doesn’t tumble’ to the fact that Ms Malcolm is expecting a baby. This sets a misleading and negative tone when in fact the inquiry itself finds that the Department was blameless and that health service did not alert the SWD. The SWD in fact only found out accidentally due to considerable alertness on SW4’s behalf.

viii. P233, 9.1.18 uses language which is quite sensationalist to describe the inquiry’s view of SW4’s actions based on questionable evidence (see below) regarding whether or not SW9 had passed this information on, or indeed if he/she had, and whether it ever got to SW4.

ix. P237 again uses very emotive language which suggests that the evidence to back up the inquiry’s findings is considerably more robust than it is. Indeed on this page, the inquiry expresses (in somewhat dramatic terms) some opinions based on no evidence at all recorded elsewhere in the report.

b. Evidence of SW9 and Nurse1

i. These are just some examples (although there are more in the report) specifically selected because they refer to the role of SW4 who has been placed by politicians publicly at the centre of ‘blame’ and is now facing a disciplinary investigation based, we are advised, on the evidence of the Health Visitor and SW9.

ii. We do not seek here to suggest that conclusions are necessarily wrong or that we have any other conclusion to make. However, we do question whether the Inquiry was justified in coming to the conclusions it did.

iii. SW9 from another authority is believed in a statement that information was passed to SW4 but not acted upon. By implication (and in a clear statement later) SW4 is disbelieved. The evidence the inquiry relies upon is that SW9 contemporaneously recorded this conversation (when doubt is cast later on whether he/she could have recorded this by date). SW4 did record a conversation but noted the term ‘no concerns’. The Inquiry stated this entry was illegible. (Several pages inc P94).

iv. P100 draws conclusions regarding SW9’s evidence on this matter and seems to rely on contemporaneous recording. Yet it accepts that the date SW9 is alleged to have phoned is unclear. SW9 is unclear about who he/she spoke to at first and when. That must throw a ‘contemporaneous’ note into doubt. This is crucial in that SW9 states that in previous calls he/she raised no concerns but did so only in this one which SW4 denies he received in the manner described and indeed records it differently from how SW9 describes. Again, we do not judge which may be the correct recollection, we merely demonstrate that the Inquiry is inconsistent.

v. The Inquiry reports Nurse1 (P128, 176, 229) did not record that he/she passed on concerns but was believed. He/she was believed to the extent that it was accepted he/she passed the concerns to a Liaison Health Visitor and Hospital Social Worker but the message did not get to SW4. However neither of these potential witnesses was called to confirm or deny that this was the case.

vi. Since the Inquiry reports Nurse1 also accepts he/she did not raise concerns in the case conference in the manner he/she was reported to have claimed previously and admitted he/she did not correct what she claimed to be an inaccuracy in the case conference minute, there must have been some doubt as to his/her recollection which was material in assessing whether SW4 was fully aware of hospital concerns.

vii. The Inquiry, however chooses to accept Nurse1’s explanation that he/she was not assertive enough, that he/he did not correct the minute because the child was no longer with him/her and, as above, that un-examined witnesses failed to pass on his/her concerns.

viii. Additional note: P163, we believe the reference to SW9 should be SW10

c.  The case Conference Minute issue

i. SW3 is adamant that she told the Inquiry that the case conference minute was never sent out and that the Inquiry found this to be the case in its report. If so, this casts doubt on Nurse1’s recollection and on the logic of the Inquiry’s findings.

The following extracts highlight the problem:-

ii. Page 163: The questionner says to Nurse1, “From what you have said you have obviously seen them (the minutes) before”.  Nurse1 is quoted in as saying,  “I remember reading them (the minutes) and thinking “That’s not accurate.” I didn’t do anything about it because we no longer had the baby, and that’s something I’ve learnt, but I just, well I just thought – “That’s it.”

iii. However on P234 L 9.1.20 the report notes “In view of the fact that the Minutes were not circulated, the Inquiry thought it had to find out what the normal expectations would be in this situation, in case this had a bearing on what was expected of SW7”.

iv. And on P241: 9.3.3 The report notes, “The Minutes for Caleb’s Case Conference ended up back on his file, without having been circulated to anybody”.

v. SW3 is adamant she advised the Inquiry that the minutes had never been sent out. How therefore could Nurse1 have remembered seeing the minutes?

vi. This is significant in that a major plank of the report is that SW4 and the case conference failed to take on board clear warnings from medical staff. Such evidence led to an early public view (and political view in the form of a Conservative motion to the Council) that social work had ignored health Service warnings. If the testimony as reported is so consflicting on the issues we have raised, how can it safely be relied upon? Why did the Inquiry not comment or inquire upon on these inconsistencies?

d. General conclusions drawn from specifics.

i. The Inquiry concludes that case conferences should not be chaired by Senior Practitioners, however it leads no evidence for this other than one newly promoted Senior Practitioner did not, in their view, chair the case conference well. This despite SP’s having this task in their job description.

ii. On the basis of interviewing witnesses largely from one context, the Inquiry concludes some practices are departmental wide and ‘endemic’. It leads no cogent evidence for this. Its ignorance on this matter is demonstrated in its recommendation that Senior Social Workers should attend case conference when this is in fact practice in many parts of the Department.

e. Witnesses it failed to call or properly examine

i. Apart from failing to call the liaison Health Visitor and the Hospital Social Worker as mentioned above, the following must be seen as significant. The Practice Team Manager for the team concerned was not called and had to ask to attend. The Director was not called but subsequently resigned as a direct result of the findings.

ii. Medical practitioners were asked hypothetically if they would have passed on information if asked regarding Mr Ness. While all admitted they would not have volunteered information to Social Workers regarding this case, most said they would have passed it on if asked. These hypothetical answers were taken as fact while Social Work staff’s factual experience that GPs hardly ever attended case conferences and that medical staff would rarely disclose patient information was ignored. There is considerable evidence of a continued refusal to disclose patient information in child protection cases even after the inquiry.

iii. The Inquiry’s own recommendation acknowledges this problem and it states “the knowledge of the GP that Shirley had developed post-natal depression, and further that she was refusing to take the drugs to ameliorate it, might not have been information which the GP could properly have disclosed direct to SW4 without her consent.” The issue in point ii) is therefore not one of whether medical practitioners would have disclosed, but whether Mr Ness would have given permission. The Inquiry decides he would have which is a hypothetical conclusion.

iv. While none of this addresses whether information was or was not requested, it does fail to set the context within which social workers were working. Overall in this area, the Inquiry has given no credence at all to the widely held experience of social work staff that such information is rarely forthcoming from medical practitioners. They appear not to have balanced the hypothetical answers from medical witnesses with the actual experience of social work practitioners.

v. In addition, it will generally not be possible for Social Workers to know who to ask in the Health Services. Each arm of the Health Service will not necessarily know who else may be involved. The Inquiry seems to have missed the clear role of the Zone Paediatrician in assisting in this process. Social Work staff cannot be expected to know the inner workings of the Health Service to find the ‘right’ person to ask. In a general climate of non-disclosure by most medical practitioners, how were Social Work staff expected to know let alone who was involved, but if a certain practitioner was involved. It seems that undue emphasis is placed on a Social Work responsibility that it cannot fulfil.

f. Lack of attention to legal context

i. The Inquiry concludes that neither parent should have been allowed to care for the child. It makes no comment on how this could have been achieved and has led the public and politicians to believe that the social workers could easily have stopped this had they chosen to. Reference to the Children (Scotland) Act 1995 would have informed them that, to prevent the child leaving hospital, a Child Protection Order would have been required. The test for that is a risk of imminent and significant harm.

ii. On the basis of all the information available at that time, eg Ness’s clumsiness with the baby as opposed to any ill-will, Malcolm’s initial progress in managing drug use etc, there is no guarantee that such an order would have been granted by a Sheriff.

iii. It does not take into account or question whether medical staff would have been prepared to make firm statements to the court to back up any opinions they may have expressed. A consistent problem encountered by social work staff is that verbal assessments genuinely made by medical staff are often refused in writing or considerably when formal evidence needs to be given. The assumption that social workers had the final say over this course of action is misleading.

iv. If a CPO had been applied for and not granted, there would have been a danger that services could have thereafter been excluded by the family.

v. The above is a constant concern for Social Workers who are not trying to practice ‘defensively’ or to ‘cover their backs’ but to genuinely protect children. If they are excluded from a family, they may be ‘in the clear’ because they have taken all the legal measures but that will not necessarily protect a child.

vi. 3.3.4 in the main response outlines the legal issues beyond the immediate phase which the Inquiry fails to address. On the basis of immediate action and investigation, past knowledge may have been enough to secure a Child Protection Order (although not with any certainty) but when it came to continuing to keep the child in care, the issue of current circumstances above would be the legal benchmark.

g. Unrealistic expectations of social workers

i. While criticisms are levelled at health services, the inquiry unreasonably lays the responsibility on social work staff (with no legal or ethical ability to do so) to obtain, collate and interpret medical information (see above). It fails to suggest how they might discover whether any such information might exist.

h. Apparent ‘pre-judgement’

i. It appears from the tone of the Inquiry that assumptions were made about the social work role. The tone of questionning to most social work witnesses seems more hostile than to others. Despite the weight of recommendations applying to other agencies, social work is singled out in the report for the greatest use of pejorative or value-ridden comments.

ii. We are concerned that generalised and unevidenced statements are accepted by the Inquiry in terms of criticism of Social Work but that there appears to have been a much harder test of proof when Social Work witnesses were asked to deal with those generalisations.

iii.  Unlike other agencies, very few Edinburgh social work witnesses are given the benefit of any doubts that arose. On the contrary, other witnesses seem to have been given undue benefit of doubt in some circumstances. This leads to at least a question as to whether the Inquiry had started from a position prejudicial to Edinburgh Social Work witnesses.

i. Lack of recourse

i. Several witnesses have been identified by the press as a result of the inquiry and statements have been made by politicians and the press which clearly refer to them.

ii. These witnesses have no recourse to ‘natural justice’ in that:-

a. They had no opportunity to rebut statements made in the body of the report by the Inquiry.

b. There is no forum to challenge the Inquiry’s statements and findings.

c. They are forbidden to speak to the press by their employer, while their employer (the Council and the Council Administration) have not laid such restrictions on themselves.