Thursday 19 September 2013

The death of Yuk Kiu Lee: Barnet Council contractors Fremantle in the dock

A visit to Wood Green Crown Court is a deeply depressing experience. 

*Updated Friday - more problems with Fremantle, see below: and Saturday

The gloomy, delapidated Victorian building accommodates several modern courtrooms, and endless corridors and lobbies, and possibly the worst canteen in the country, the 'Dick Whittington Cafe', furnished with wooden knives, plastic forks and paper cups, and tables and seats bolted to the floor because, as we were told, of the risk of violence from those standing trial, and their accusers. 

We sat there for hours today, drinking endless cups of vile coffee, as high above the yellow formica panelling, and the red chequered floor, lights swayed in the breeze, dangling on long cords from a framework of wooden beams, like hanged men. 

The endless corridors and lobbies of the courthouse are populated by groups of worried relatives surrounding young men on trial for relatively minor criminal charges, trying to assume an air of bravado, or indifference, attended by barristers who have seen it all before, and know what is going to happen to their clients, and frankly couldn't care less.

But in one courtroom today there was a case that was rather more unusual, and more serious, and in the dock stood no cocky young dealer, or mugger, but a party pleading guilty to a breach of the law that led to the most devastating outcome, the loss of a life, and worse still, a loss of life that should have been, as Judge Simon Carr observed, so easy to prevent.

Pleading guilty to charges under health and safety legislation which caused the death of a vulnerable elderly resident of a Barnet care home were representatives of Fremantle, a not for profit company which is used by Catalyst to run care homes in Barnet, including Dell Field Court, in Etchingham Park Road, in Finchley, a unit which accommodates 40 residents.

In December 2011, a seventy two year old woman called Yuk Kiu Lee fell out of the window of her first floor room at Dell Field Court, and died as a result of the terrible injuries she sustained. It has taken nearly two years for charges in relation to her death to come to court.

Representing Fremantle today was Chief Executive Carole Sawyer. On behalf of her trustees a guilty plea was entered, and the counsel for the prosecution proceeded to take the court through a resume of the events which had led to her fatal fall.

Carol Sawyer, Chief Executive of the Fremantle Trust, at an earlier hearing this summer. Pic Barnet Today

We were given what were the agreed facts of the case.

On the 1oth December 2011, Mrs Yuk Lee had fallen to her death, and died at the scene having suffered several injuries to her chest and abdomen. 

Photographs of the window of her bedroom showed the restrictor which should have prevented any opening further than 100 milimetres. The lock should have been disabled by a key, and this restriction was supposed to be ensured by checks carried out by staff. Records showed that those checks had last taken place on the 12th October. 

Since that time, it was alleged, contractors had had access to the room in order to carry out work. Mrs Lee took occupation of the room on the 22nd  of November. She was recuperating from having suffered a broken leg, was not very mobile, and spoke little English. She was obliged to use a wheelchair, and a zimmer frame. 

The window of the room, we heard, was only sixty centimetres from floor level. No one can be sure how or why it happened, but on way or another, Mrs Lee managed to push herself against the window of her room, and fell out. Despite the attendance of the air ambulance and medical staff, her injuries proved to be fatal. 

Investigations into the circumstances leading to this tragic incident revealed that Fremantle had only a four page safety policy, clearly inadequate in relation to the level of risk presented by the care of elderly and vulnerable residents.

In October 2010, it had been agreed that this policy should be updated. By February 2011, it was noted that this had not taken place. In October 2011, a draft had been created, but it was incomplete. At a local level, it seems, the manager of Dell Field Court had devised his own site specific policy, more demanding than the regime designed by head office. This schedule required checks of the window locks to take place on a monthly basis. 

The handyman who was responsible for these checks ceased to be employed directly by the home, for some reason which was not explained, but continued to work there on a self-employed basis, for only one day a week. His duties no longer included checking the window locks - and no one else was assigned to that task.

This meant that at points when safety assessments should have been made, after visits by contractors, before a new occupant moved in, and when the lock keys had been given out, no such procedures were followed. Such failure was clearly in breach of statutory duties under health and safety legislation, and had exposed Mrs Lee and other residents to risk. Although the breaches took place on a localised basis, the responsibility for the absence of checks lay with head office, which had provided an inadequate system of guidance and organisation of local procedure. 

As to the appropriate financial sanction that should follow such a breach, some discussion ensued regarding the status of Fremantle, and its means. Apart from turnover and assets, we learnt that the most highly paid employee, presumably the Chief Executive of this 'not for profit' charitable trust, had a salary of a no less than £100 to 110, 000 a year. In 2013, this salary was increased to a rate of £110 to £120, 000 a year.

Counsel for the defence said that Fremantle accepted responsibility for 'this tragic event'. She hoped that, in mitigation, 'full credit' would be given to the Chief Executive for her early plea of guilt and her co-operation with the police investigation.

The court was told that Fremantle had 25 years' experience in care and had faced no other prosecution in the last ten of those years. 

The barrister now sought to explain the circumstances of the fatal negligence. Using a clearly inappropriate turn of phrase, she referred to a 'window' between October to December in which Mrs Lee's window could have been inspected, but was not.  The unnamed contractors, and the handyman were mentioned, as well as an admission that 'the system was not sufficiently joined up'. Head Office had not anticipated the risks, but the failures in inspection had been an 'oversight, rather than a deliberate removal'. 

It was admitted that the manager of the home had instigated more frequent checks than the Head Office guidelines had required. There had been an intention to be compliant, indeed, 'more compliant' but 'that system fell down'. It was noted that one of the carers had commented that she was surprised that Mrs Lee had managed to reach the window.

We heard now about an 'overarching' checklist of new procedures. Staff alerts, higher on the safety agenda. An outside agency had been engaged for advice, auditing, compliance and training, and there was a 'more pro-active risk management structure', a 'more joined up approach', a commitment to improve ...

The defence counsel wanted to express on behalf of the Fremantle trustees that they were 'truly sorry for the distress caused to the family, and to express their sympathy to the family'.

They offered no financial mitigation, except to say that of course in a not for profit organisation, any fine will have an impact in the amount of money that can be ploughed back into funds.

Time for the Judge to give his findings.

Mrs Lee had been in extremely poor health, and had required care until her mobility improved. She had fallen from her room, and suffered catastrophic injuries. What led to her death was, he said, entirely preventable. He thought it most likely that the contractors had borrowed the key to the window restrictor from the manager's office, and that no one had checked that the window had been re-secured. 

He had seen the documents regarding guidance, and found them to be 'brief and generic'. They had required review, which had still not been completed in December. They gave managers only very general advice and left them to make checks, on a quarterly basis. This was inadequate. 

Nothing had been put in place at by head office, which had created failure 'at the most highest level'. What makes the case so tragic, he commented, was that it had been so easy to prevent.

He referred to the statement by Mrs Lee's son, in which he said that he found it very hard, if not impossible, to come to terms with what had happened. It was devastating, and, observed the judge, nothing I can do can begin to address that sadness.

The level of sanction he would apply would address the fact that there were wider implications beyond the individual responsibility in this case of Fremantle: this must act as a deterrent. 

Fremantle is a substantial organisation with 53 separate locations, employing 1700 people. It had an annual turnover of £40 million. He accepted it was a not for profit body, and acknowledged the early plea. There had been no recent health and safety breaches. The event had been 'an oversight' and there had been a 'step change'.

Despite these factors in mitigation, Judge Carr made an order for a fine of £175,000, with costs of £16, 904. 

Fremantle asked for time to pay. They must produce £75,00 by 16th October, and the balance by 13th November.

Dell Field Court

Now let us put today's findings in the context of a wider perspective.

This is not the first time that Fremantle has caused controversy over the running of care homes in Barnet. Catalyst, the company which owns the homes run by Fremantle, has had an interesting relationship with the authority - in 2011 it was revealed to have cost £10 million to resolve a dispute between the two partners, and in the same year three homes in the borough were found to have traces of legionella in their water supplies. There was great confusion over who was to blame for this, and indeed who should be responsible in future for preventing any further outbreaks. 

The confusion was a direct result of the devolution of direct control to the managing companies, and a stark warning of the dangers of privatisation of council services, the risks posed by the distancing of responsibilities and the potential lowering of standards in many vital areas, including, most significantly, health and safety. Were lessons learnt by this experience? The subsequent tragedy at Dell Field Court would suggest not, and yet ... here is the most astonishing part of this terrible story. 

In June, just as preliminary hearings in connection with the death of Mrs Lee were underway, Barnet councillors voted to extend another ten year contract to Fremantle. The unseemly haste to sign up with a company under investigation for failures which led to the death of an elderly and vulnerable resident was and is an extraordinary move. There could have been an interim agreement made, pending the outcome of the legal proceedings, or indeed a wider procurement of tenders for the contract. In fact it would appear from the report here:

that there was no full procurement of tenders as such, merely a 'soft market testing'.

What do we conclude from the tragic story of the death of Mrs Yuk Kiu Lee? 

Here was an elderly woman in poor health, a vulnerable woman, whose family entrusted her to what they thought was the safety and care of a well run residential home. Due to the failures of the senior management of the company responsible for the running of this home, her life was ended, needlessly, and her family are still grieving for her loss. 

If, like me, you have ever had to place a relative into care, you will understand only too well the terrible, unceasing anxiety you feel at the thought that they may not receive the loving care and support that they need. You will be horrified to learn how easily this fatal incident occurred, and it is likely that you will be angered by the relative lack of sanction that this company has received as a result of this case.

Fremantle have been fined £175,000, it is true. The 'highest paid employee' of this body, however, whether or not that is, as is most likely, the Chief Executive, earns £120,000 a year, and had a pay rise last year - and certainly Ms Sawyer has retained her position.

Fremantle have been rewarded by the granting of another ten year contract which will deliver the safekeeping of vulnerable residents of this borough into their hands. 

And there are many unanswered questions.

Who will be ensuring that they keep to all their eager promises, made in court today, of a 'commitment to improve' their standards of care? 

Why was their failure to issue adequate guidance to their homes on window safety not spotted by any contract montitoring? 

How many other areas, other potential breaches of health and safety will go undetected?

Even if new guidelines are issued, how can we be sure that these are put into practice, and regularly maintained?

The answer is we cannot be sure.

The unpalatable truth is that what happened in Dell Field Court could happen again, anywhere in this borough, now that so much responsibilty has been outsourced to private enterprise. We are now living in a brave new reality, a world of contracts and profit, and a commissioning council, a 'hollowed out' council, which creates an entire network of opportunity for error, and lack of scrutiny. This is the new reality of easycouncil, in short.

Are you scared? 

If not, you should be.

Postscript Friday:

Mrs Angry was reminded today of the Fremantle home 'Apthorp Lodge', which, according to the CQC report carried out on the 1st November 2012, ie a year after the death of Mrs Lee was found to be not reaching the standard for 

 'quality checking systems to manage risks and assurethe health, welfare and safety of people who receive care ...'

The report stated:

'The provider did not regularly assess and monitor the quality of services provided and 
did not have a system in place for analysing falls incidents. The service failed to identify,
assess and manage risks relating to health, welfare and safety of people who use the
We have judged that this has a moderate impact on people who use the service, and have
told the provider to take action ...'
The report continues:
'The manager told us that they did not have a formal system in place for assessing and
monitoring the quality of the service in relation to the numbers of falls involving people who use the service. Records held by the service showed there were forty incidents involving falls during October 2012 with seven incidents resulting in a serious injury 
and hospitalisation. 
Although individual risk assessments are in place the service has not completed any analysis or reviewed good practice guidelines to look at the cause and determine the changes needed to service delivery. This was highlighted as a concern to the manager 
who told us that they will be introducing a falls register to monitor this area'.
Forty falls within one month, and seven incidents resulting in a serious injury and hospitalisation?
In July this year, Tirza Waisel,  from Barnet Alliance, submitted the following Freedom of Information request to Barnet Council regarding Apthorp Lodge.
How many Safeguarding alerts have there been from Apthorp Lodge elderly care home since September 2012?  How many of these have been regarding concerns with employees of Apthorpe Lodge?  What has been the outcome or likely outcome of these alerts?

The rather extraordinary response was:

Since September 2012, there have been 9 safeguarding alerts relating to residents at Apthorp Lodge. This represents 1.5% of all safeguarding referrals received in Adults & Communities. 
Of the 9 safeguarding alerts, one of these involved a member of staff. The remainder were allegations against other service users or cases outside the venue.

The case involving the member of staff is ongoing. The outcomes of the other cases listed above involved an increased monitoring of the service user.

Tirza had also asked about legionella monitoring, and submitted this very important question:  

Did Barnet Council carry out their own full review of Fremantle’s Health & Safety policies and procedures before the report recommending a ten year contract with Fremantle was submitted to Cabinet Resources Committee?

Answer, from Dawn Wakeling:

Yes. The Council also reviewed health and safety practice immediately after the incident in 2011 and took steps to review service users to ensure they were not at risk.

On the 2nd September, Tirza Waisel asked for more detail of this review:

Who in the Council carried out this full review (job titles only) 

What was the scope of the review? 

What evidence did they consider?

I will be grateful if you provide me a copy of the full review.
There has as yet been no reply.

Clearly the crucial question is this: if the review of Fremantle's health and safety practices after the death of Mrs Lee was adequate in scope, how did Barnet fail to spot the lack of proper management of risks in Apthorp Lodge that arose after their assessment, and once those failures came to light, in 2012, in why did they then proceed, in June 2013, to extend a ten year contract to the same organisation? 
A woman lost her life in December 2011: have any lessons been learned by either Barnet Council, or Fremantle, or is the harsh truth that elderly and vulnerable residents of Barnet are still at risk of harm because of a failure in scrutiny and a deep seated culture of indifference in the management and political leadership of this authority which refuses to hold private contractors to account? 
With such demonstrable impotence by our council when required to exact the proper standards of care from the private companies already in place, how on earth will they manage with the monstrous sized contracts for service provision they have so complacently signed with Capita?


Anonymous said...

An opening window 600mm high off the floor is a hazard. Eliminate the hazard and there is no risk.
Solution - change the window or install a bar at 900mm.

Mrs Angry said...

I agree with you, Anon, that the low window was clearly hazardous,and it was in a purpose built home, too, which seems odd. But that hazard must or should have been assessed and created all the more reason for a stringent process of checking to be in place.

Anonymous said...

I totally agree Mrs Angry. The risk has been assessed (at least to a point) and hence the fitment of restrictors. However, restrictors are fitted as STANDARD practice for all occupied rooms 1st floor and above. Primarily for the benefit of small children, they can easily be overridden with some deft finger work, say by a fireman in the event of a fire, or the adult occupantant. Key operated window restrictors are a different matter, especially if the room occupant is NOT the key holder. Thus if the key operated restrictors were fitted POST construction, then the original Building Fire Plan proposed by the Architect and agreed by Building Control would need to be re-assessed to take this into account.

Further, it strikes me that 'tampering' with these restrictors should be obvious. In other words, anyone glancing towards the window should immediately be able to see the restrictor is undone. Otherwise and to my mind, in this particular environment they are not actually fit for purpose.

In addition, any glass less than 800mm off finished floor is deemed to be within the 'critical zone' and therefore must be of toughened glass.

Mrs Angry said...

I have to say that when I heard in court that the windows were only 60cms from floor level, I must have misheard, but it was repeated. It seems incredible to have such a design in relatively recently built home for elderly people, residents who are staying there because they are infirm, and many of whom may well be suffering from dementia. It seems there are still unanswered questions that someone should be asking.

Anonymous said...

While it may seem odd to have such low windows, this feature does give the bed ridden, or wheelchair bound occupant more light and more importantly a view on the outside world. Managed correctly there should be little or no risk.

However, I must admit I am shocked that these restrictors are only going to be (or supposed to be) checked monthly. Taken literally the occupant could be at risk for a whole 30 days!

I believe (as mentioned earlier) that it should be blatently and visually apparent that the restrictor is open or undone.

The purpose of the monthly check should therefore only be to confirm operation, not to check whether the occupant has been put at risk.

Assuming the restrictors are key operated then there should be a key register, not only to sign the key in and out, but also to thirdly (and most importantly) to sign that the restrictor is locked.

If operated correctly, the occupant should never be at risk.