Updated Report on the O'Brien Inquiry
Inquiry - General Comments
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'
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
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
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
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.
3.3.1 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.
3.4.1. 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
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
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
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
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
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
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
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
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,
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
6. Professional issues
6.1. The inquiry and the comments by politicians
have led to an important debate about professional child care
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
7.1. 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.
UNISON CITY OF EDINBURGH BRANCH
Conduct of the O'BRIEN
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
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
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
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
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
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
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
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
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.