IN THE FIRST-TIER TRIBUNAL 
(HEALTH, EDUCATION AND SOCIAL CARE CHAMBER)

[2008] 1221.PVA; 1220.PC

RHODORA CARRANZA
		Appellant
-and-

(1) 	SECRETARY OF STATE FOR HEALTH
(2) SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES
Respondents

[2008] 1217.PVA; 1218 PC
ELIZABETH GULZAMAN
Appellant
-and-

(1) 	SECRETARY OF STATE FOR HEALTH
(2) SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES
Respondents

Before:
Mr Laurence Bennett (First Tier Tribunal Judge)
Ms Bridget Graham
Ms Maxine Harris

Heard on 15 – 18 December 2008 
At Stafford Combined Court

Representation 

Ms Clare Price of Counsel instructed by the Royal College of Nursing (RCN) represented Mrs Carranza.

Ms Sarah Allen of Counsel instructed by Messrs Irwin Mitchell Solicitors represented Mrs Gulzaman.

Mr David Blundell instructed by the Treasury Solicitor represented the Secretaries of State.

Appeals

1.i	Mrs Carranza appeals under Section 86(1) of the Care Standard Act 2000 against the decision of the Secretary of State for Health under Section 81 of that Act to include her in the list of individuals who are considered unsuitable to work with vulnerable adults.

ii.	Mrs Carranza appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, Schools and Families under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.

2.i.	Mrs Gulzaman appeals under Section 86(1) of the Care Standard Act 2000 against the decision of the Secretary of State for Health under Section 81 of that Act to include her in the list of individuals who are considered unsuitable to work with vulnerable adults.

ii.	Mrs Gulzaman appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, Schools and Families under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.

Restricted Reporting Order

3.	On 29 September 2008 the Deputy President of the Tribunal made a direction under Regulation 18(1) of the Protection of Children & Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) in the following terms.  "I make a Restricted Reporting Order under Regulation 18(1).  This Order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any vulnerable adult.  This Order continues in force until the conclusion of the hearing and the Tribunal shall consider its continuation at the hearing itself."

4.	This order was extended by the Tribunal at paragraph 68.

Preliminary Hearing and Directions

5.	Following preliminary hearings in August 2008 the Deputy President made directions requiring the Respondents to provide details of allegations and a third party disclosure order requiring production of documents to the Applicants by BUPA Care Services.

6.	By directions made on 29 September 2008 the Deputy President made order in the following terms: "All four cases shall be joined and heard at the same time.  For the avoidance of doubt the lead case shall be [2008] 1221.PVA."

The Evidence Heard
	 
7.	Oral evidence at the hearing was on oath.

8.	Mrs Patricia Fox is regional manager for BUPA Homes, Central & Western region at the relevant time this comprised thirteen homes, although now ten.  She has responsibility for financial management and clinical and regulatory compliance.  This includes ensuring an appropriate staff and skill mix and responsibility for hearing internal staff appeals.

9.	Parklands Court is a 150 bed care home which consists of five units, each of thirty beds.  The units are organised to meet different specialist requirements e.g. dementia, intermediate care, behaviour.

10.	Mrs Fox stated that she is obliged to visit the homes at least once per month for "a Regulation 26 visit and sample audit" but if issues arose would visit more often, some times three times per week, to support management and staff.  She visited Parklands regularly because of difficulties that emerged around April 2006 when two residents were admitted to hospital with what she described as "basic issues," tissue injuries and hydration.  She became concerned with the quality of care, not least because of a number of safeguarding meetings and arranged for the Quality Manager to audit all care plans.  She agreed in discussion with her own line manager to suspend new admissions.

11.	Mrs Fox's investigation ascertained that the problems arose in one unit, the Harrison Unit (the Unit).  Mrs Elizabeth Smith, the Quality Manager drew up an action plan and Mrs Fox arranged for Ms Natasha Brannigan, a Deputy Manager from another BUPA home to be seconded to the Unit.  She also involved the Regional Support Manager, Mr Tim Hodgetts and HR Manager, Ms Tracy Johnson.

12.	After what Mrs Fox described as a "huge amount of time" the position improved at the Unit and by August/September 2006 she was "comfortable" about its operation.

13.	Mrs Fox acknowledged that if a nurse was upset by a manager, performance may be affected.  She would expect that nurse to put in a grievance which could be investigated.  If the nurse felt intimidated or unable to put in a formal grievance Mrs Fox might ask her department to meet with the nurse to give confidence to take the complaint forward.  

14.	Mrs Fox was not aware of any difficulty in relationships at Parklands, in particular arising from Mrs Rogers, the Acting Home Managers, management style.  Mrs Rogers had worked at Parklands for some seven years and was appointed Acting Manager in 2006 following a period as Interim Manager.  Mrs Fox had not noted that she had an "abrasive," confrontational or aggressive manner.  If complaint was made it would be investigated as each complaint was fully investigated.  Complaints to that effect by Mrs Roberts, a nurse dismissed from Parklands, were not upheld.  Whilst the outcome of that investigation was appealed under the Stage 2 process, Mrs Fox could not recall the result.  She was aware that Parklands could be a stressful environment in which to work, particularly when short staffed.

15.	Mrs Southall (nee Brannigan) who was previously Deputy Manager of a small BUPA care home, was invited by Mrs Fox to widen her experience and joined Parklands to shadow Mrs Guest, the Unit Manager.  She arrived at the Unit but soon after, Mrs Guest was dismissed; the shadowing did not take place before she took over the Manager's duties.  Mrs Southall divided her time between office and nursing work.  

16.	Mrs Southall did not consider comments that the Appellants suffered a lack of initiative significant and felt this could be addressed by increasing their confidence.  She said that the whole of the Unit lacked initiative, presumably as a result of the previous lack of leadership.  This did not merit formal investigation to establish the cause.

17.	Mrs Southall said that Mrs Carranza and Mrs Gulzaman. who had completed adaptation for UK registration at Parklands, were equally skilled nurses and aware of their duties.  When together on a shift that it was for them to divide the duties but each retained full responsibility as a nurse with a pin number. There are short and long shifts, occasionally staff work a short shift followed by a long shift.  Mrs Southall undertook the required nurse supervision meetings with Mrs Carranza and Mrs Gulzaman, these included discussion of new BUPA standard paperwork and would have been used to increase nurses' confidence.  Mrs Southall was not aware that Mrs Gulzaman and Carranza had any difficulties with Mrs Rogers' attitude which she described as forthright and blunt.  She did not know whether this was an issue taken up by BUPA.   

18.	Mrs Southall detailed how the nurse in charge of medication would check, dispense, record and move the medicine trolley around the Unit to administer the medication.  She said it is difficult to estimate how long this would take as sometimes residents were not ready for their medication and other staff may present queries.  Medication is normally given with a drink which should be noted on the fluid balance chart.

19.	Mrs Southall stated that A, a long-term resident in the Unit with dementia, heart problems and pressure sores was in bed throughout the day.  He had to be repositioned regularly and required catheter care for prostate difficulties. He required feeding and medication.  A was in a single bedroom of square layout with the bed in the centre of the rear wall and window and vanity unit on one side.  He had two catheter bags, a leg bag in the bed with him and a night bag hung at the side of the bed depending on which side he was positioned.

20.	On 10 September Mrs Southall arrived late morning when she learnt from Mrs Rogers that A been hospitalised.  She spoke to the Appellants but did not remember the details of what was said.  Subsequently she carried out investigations during which she interviewed Mrs Carranza and Mrs Gulzaman on two occasions.  While she could not remember specific details, she stated that she would have looked at the resident's records including transfer form, positional records, catheter care plan, staffing records and fluid balance chart. The investigation at the time was about care and not for disciplinary reasons nor focused upon the catheter.  As it was investigative, accompaniment of interviewees by a union representative or other person was not suggested but if requested, would have been accommodated.

21.	Mrs Southall could not recall in which order she interviewed the Appellants nor did she remember conversations on the morning of 10 September with Staff Nurse Ron Clenuar.  On the second occasion she spoke to Mrs Gulzaman, she became upset and regretful and after a brief discussion when Mrs Southall told her that she could not help without hearing the truth, made her second statement in which she admitted inserting a false output record in A's fluid balance chart. She did not state Mrs Carranza was involved in the entry         

22.	During Mrs Carranza's second interview on 17 October her conversation was not free flowing as usual and she was reluctant to provide information and gave only short answers.  This was the first time Mrs Southall had asked her about the false entry.  Mrs Southall said stated that as far as she could say Mrs Carranza believed she saw Mrs Gulzaman empty the bag.  Mrs Southall said that it was not unusual for one nurse to ask another how much fluid had been emptied.  If a nurse was changing A's heel dressings she might have been at the end of the bed and might not see another person at the bag side but they should have been aware of a catheter bag drain because the procedure is noisy and probably smelly.

23.	Ms Shelley Jane Barker, Care Assistant at Parklands described Mrs Carranza and Mrs Gulzaman as nice people with whom she enjoyed working and who were caring of residents and others.  Her duties sometimes involved emptying catheter bags and making a record in the fluid balance chart.  She identified her entry on A's fluid balance chart at 14.00 on 9 October when she gave him a cup of tea.  Nurses would know that she did this as part of her duties.

24.	Mrs Elizabeth Irene Smith's duties form part of BUPA's National Quality Scheme.  As Quality Manager during 2006 she was asked to examine the performance of the Unit and its Manager.  She noted that the majority of its nurses were adaptation nurses signed off by their manager, Mrs Guest, but did not find sufficient written evidence that they had received appropriate guidance.  In May 2006 she was involved in investigating events following a visit to the Unit by a Tissue Viability Nurse (TVN).

25.	Mr Clenuar took the night shift on 9 October at the Unit.  The following day he received a telephone call from Mrs Carranza and during which he also spoke to Mrs Gulzaman and was asked to go to the Unit.  He felt that he should go and "Help sort things out."  He called a taxi as his car was not available and took his child with him.  When he arrived at the Unit, the Appellants were present in the foyer and Mrs Brannigan had A's records.

26.	Mrs Carranza described events on 9 October 2006. She stated that Mrs Gulzaman was in A's room when she was changing the dressing on his heel.  She could not see Mrs Gulzaman who went to the bag side of the bed because of the bumper.  She assumed that Mrs Gulzaman was draining the catheter bag.  She had no reason to doubt what Mrs Gulzaman said about the fluid she recorded and considered it must have been true.  She said it was not possible to hear any drainage because of the type of bag which drained through a valve with minimal noise, there was no need to remove it and it was graduated.  As the television was on it could not be heard. Any smell would be masked by the smell of the heel wound which could be detected even outside the room.  Mrs Gulzaman subsequently asked her what could be done and told her that she had drained fluid.  She stated she did not take part in any conversation about adding to the fluid balance chart and did not encourage any falsification of records.  

27.	Mrs Carranza's witness statement includes: "I briefly spoke with Staff Nurse Gulzaman.  I said to Staff Nurse Gulzaman that there had been no output recorded on Resident A's fluid balance chart.  At that point Staff Nurse Gulzaman told me that there had been fluid output of 500mls on the previous day as she had emptied the catheter at 10.00am when I was in Resident A's room with her.  Staff Nurse Gulzaman said that she had forgotten to record it on the fluid balance chart and in front of me, she made the retrospective entry on the chart for 9 October 2006."

28.	Mrs Gulzaman said in her first statement to Mrs Southall that she was in A's room whilst Mrs Carranza was there and emptied his catheter bag of 500ml urine.  She repeated that she had done this until during the second investigation meeting.  

29.	Mrs Gulzaman said at the hearing that on 9 October 2006 she had not been in A's room at the same time as Mrs Carranza although she visited three times for medication.  She recorded fluid intake at 10.00 and 18.00 when administering soluble tablets although she had in error not recorded or totalled fluid for the afternoon medication.  

30.	Mrs Gulzaman stated that during interviews about the incident and when signing the statement requested by Mrs Brannigan she was so upset and distressed about what was the first professional difficulty she had experienced, that she did not mention the part played by others, particularly Mrs Carranza.  She was not asked to and concentrated only on her own involvement.  She wanted Mr Clenuar to come to the Unit on the morning of 10 October because no one had let her know if the catheter bag had been emptied and she wanted to ask anyone who might have done so.  Prior to his arrival she carried out shift duties but was concerned for him to know that she had recorded draining 500ml before his night shift started on 9 October so that he would know in the event he was asked to make a statement.  She stated that on the shift she was not caring for A but administering medication; which was why she did not provide catheter care.	 

31.	Mrs Gulzaman's witness statement includes: "I first discovered that (RF) had been admitted to hospital when I arrived into work the following day on 10 October 2006.  I was approached by Ms Carranza who was very upset about A's hospitalisation.  She told me that she had been asked by Ms Brannigan to produce A's records for consideration and that she had discovered that the Fluid Balance Chart did not contain any output during our shift.  She told me she was scared she would be shouted at by Ms Brannigan and that I too could face disciplinary action as I was the nurse in charge.  Ms Carranza asked me what we could do about the matter and we very stupidly agreed to falsify A's records to indicate that 500mls of urine had been drained during our shift.  This was a clear falsification.  I also inserted the words 'please observe output' on the Kardex Report which was also a falsification.  Ms Carranza and I had not discussed this latter falsification.  She had no prior knowledge of my doing this."

32.	Mrs Gulzaman expresses regret in her witness statement which includes: "The correct course would have been to immediately draw the absence of urine output to Ms Brannigan's attention but I regret that the relationship between her and I was such that I felt intimidated by her and felt unable to draw this matter to her attention."

33.	Mrs Gulzaman's statement also includes: "I accept and regret that I did not monitor A's catheter bag.  Nor did I at any time during the shift, drain any urine from A's catheter bag.  I had a genuine belief that Ms Carranza, being allocated to care for this patient, would have been seeing to this.  It was not reported to me at any point during the day by Ms Carranza or any of the care assistants, or indeed earlier at the handover meeting with night nurse Ronald Cleneur, that A's urine output was of concern."

34.	Mrs Alison Rogers was Acting Manager of Parklands in October 2006.  Although she did not give nursing care direct to residents her responsibilities including monitoring care at Parklands and on occasion she worked with Mrs Carranza and Mrs Gulzaman.  Mrs Rogers was available as a witness at the Tribunal on the second day but was not reached.  She telephoned that she was unable to attend on the third day and did not give oral evidence.  Her statement mentions problems at the Unit during 2006 following a number of patients' admission to hospital, the dismissal of Mrs Guest and the appointment of Ms Brannigan as Acting Unit Manager.  Whilst she noted contact with Mrs Carranza on 9 October 2006 regarding Unit staffing, originally seven, subsequently reduced to six, she stated she did not raise her voice or tell off Nurse Carranza.  She was firm during the short conversation that took place and does not recall an argument with Mrs Carranza.

35.	On 10 October at around 09.00 Mrs Rogers visited the Unit.  She was advised by Mrs Carranza that A had been admitted to hospital during the night and requested the transfer letter.  Mrs Carranza brought this to the office some five minutes later.  

36.	Ms Sandy Bradbury, a BUPA Home Manager undertook disciplinary hearings in respect of Mrs Gulzaman and Mrs Carranza on 27 October 2007.  She produced notes of the hearings taken by a note taker and letters notifying her findings.  She commented in her witness statement upon the duties of nurses when two are on present on shift, expected standard of care and division of responsibilities.  She includes: "…….. During the interviews it became apparent that Nurse Gulzaman thought Nurse Carranza should have been documenting A's care as the 'hands-on' nurse, whilst Nurse Carranza thought Nurse Gulzaman was responsible as nurse in charge…….."

37.	Ms Norma Morrison, Activities Coordinator at Parklands during October 2006 who did not give oral evidence stated that she believed, although could not be certain, that on 9 October 2006 she witnessed Mrs Rogers talking firmly to Mrs Carranza about staffing.  She stated that "she was not shouting and she was not being nasty but she was saying that a member of staff from Harrison House had to go back to another house."  Later that day she noticed that Mrs Carranza was upset and teary.  She was almost certain it was before 2.00pm on that day.

38.	Ms Karen Roberts a qualified nurse who advanced formal grievances whilst working at Parklands where she was employed between September 2004 and November 2006 latterly as Acting Unit Manager of the Unit where she worked with Mrs Gulzaman stated her observations that Mrs Gulzaman was adapting well to UK nursing and needed little direction or supervision.   Her statement mentions that after August 2006 after a change in management at Parklands she frequently observed Mrs Gulzaman being spoken to in a "less than pleasant tone by several members of the management staff" and that Mrs Gulzaman was under intense pressure.  On occasion she found her distressed.  She stated normal Unit staffing was two nurses and five care assistants, the second nurse supporting the lead nurse.  Few of the grievances on Mrs Rogers' extensive list were upheld by Mrs Fox.

39.	Mr Gulzaman Kahn, Mrs Gulzaman's husband submitted a statement which whilst "not condoning Elizabeth's dishonesty in any way" is supportive and comments upon her caring and compassionate nature.  Positive comments about Mrs Gulzaman were also submitted by her church pastor, a neighbour Mrs Janice James, children of a former Parklands resident, a friend of a Parklands resident and another neighbour.

Submissions 

Secretary of State 

40.	In relation to Mrs Carranza Mr Blundell submitted that: "The Respondents must now accept that they cannot discharge their burden of proof in terms of unsuitability."  Mr Blundell's submissions review the matters relied upon in resisting Mrs Carranza's appeals and subsequent evidence that came to light as a result of very late disclosure of documents and in oral evidence of witnesses, particularly Mr Clenuar and Mrs Southall during the hearing.  They include: "However, the Respondents wish to stress that they do not consider Mr Clenuar to have been in any way dishonest, either before this Tribunal or the NMC.  He is plainly deeply confused about what happened on 9 and 10 October 2006 but he is not a dishonest witness."

41.	In relation to Mrs Gulzaman Mr Blundell submitted that she is a dishonest witness and stated the evidence upon which he relied.  He reviewed the "four elements to the case she has presented to the Tribunal:
•	Inadequate catheter care
•	Allegations against Alison Rogers
•	Staffing levels
•	Dishonesty"
He commented upon the extent and repetition of Mrs Gulzaman's dishonesty and included; "It is the Respondent's case that Ms Gulzaman's dishonesty and stated demonstrates clearly that she is unsuitable to work with vulnerable adults and children.  She plainly has no insight into the seriousness either of her misconduct or the effect that her repeated attempts to shift the blame for what happened could have on other people.  She is quite willing to assert her truthfulness on the one hand whilst casting seriously damaging allegations against other individuals on the other.  Any notion of trust and confidence in her has been completely destroyed.  She cannot be trusted to work with either vulnerable adults or children.  Public confidence in the integrity of the PoCA and PoVA lists would be deeply damaged if her appeal were to be allowed.  This is classic case of unsuitability."

Mrs Gulzaman

42.	Ms Allen submitted that Mrs Gulzaman's dishonesty is a matter for disciplinary action by the NMC but that she is not unsuitable to work with vulnerable adults and children.  Any question over the care she gave could not amount to misconduct.  She submitted that failings in care must be seen in the context of a Unit that was failing.  Inadequate management had put unacceptable burdens on lower level staff and failed to provide adequate support.  This led to evidence of breakdown in communication and inadequacies in records and was compounded by the attitude of Mrs Rogers.  Ms Allen commented upon the failure of Mrs Rogers to give evidence. She drew attention to staff shortages, the division of labour and unacceptable requirements of Mrs Gulzaman such as clearing away boxes of Christmas decorations and rubbish.  She submitted that Mrs Gulzaman did not seek to export blame to someone else but that they were in it together and that her evidence at the hearing was truthful in contrast to that of Mrs Carranza.   

43.	Ms Allen emphasised that Mrs Gulzaman is aware that she has herself to blame but she also relied on colleagues.  She has accepted her responsibility and is sorry, scared and frightened of the outcome.  Mrs Carranza, who had been disciplined previously would also have worried and willingly joined in what happened.  Mrs Gulzaman admitted dishonesty when asked by Mrs Brannigan and this appeal is the first occasion she has been able to provide evidence to clarify the position relating to Mrs Carranza.  Ms Allen submitted that Ms Gulzaman's stance as a witness showed how scared and stressed she was.  She described her as immature and suggestible and that her responses during the investigation at a time she was upset were to leading and not open questions.

44.	Ms Allen summarised that:
•	Mrs Gulzaman has regretted her error which was a failure of care or incompetence but not misconduct
•	Dishonesty only relates to falsification of records
•	Mrs Gulzaman's suitability as a nurse is best determined by Nursing Council
•	Mrs Gulzaman has good referees and has cared for a great number of people without incident
•	Whilst Mrs Gulzaman was immature in her reaction in terms of care, normally her work is of a high professional standard

Application 

45.	On the third day of the hearing following notification of the Tribunal's decision to allow Mrs Carranza's appeal, Ms Allen applied on behalf of Mrs Gulzaman for a witness summons requiring Mrs Carranza to attend as a witness at the hearing.  The Tribunal granted the application but it is not clear whether such summons was correctly drawn and served.  In the event, Mrs Carranza gave evidence.

46.	Ms Allen requested permission to cross examine Mrs Carranza notwithstanding she was called as a witness on Mrs Gulzaman's behalf.  Taking into account the overriding objective of the Tribunal set out in the 2008 Rules particularly Paragraph 2(c) the Tribunal gave the permission requested.

Tribunal's Findings on the Evidence

47.	We find that A's catheter care was inadequate during the 9 October 2006 day shift staffed by Mrs Carranza and Mrs Gulzaman.  Whether or not all staff had the obligation to record fluid input and output, there was a lack of defined responsibility for the catheter care.  There is no evidence of regular overview so that concerns could be identified and timely action taken.  

48.	We accept from the evidence that there had been management difficulties at Parklands, particularly affecting the Unit prior to October 2006.  Both the Home Manager and Unit Manager were relatively recent appointments.  The evidence indicates that Mrs Rogers' attitude to those under her management was firm and her communication manner abrupt and blunt.  There was no evidence that Mrs Rogers prevented staff performing their duties for residents nor do we consider her presentation reason to justify or excuse failures by qualified staff to carry out their duties.  We have taken into account evidence of Mrs Carranza and Mrs Gulzaman and the statement evidence of Mrs Roberts.  We do not find that Mrs Rogers' actions or attitude led to a climate of fear in which staff could understandably feel obliged to cover up mistakes.  We find no justification for a lack of honesty or objectivity once a mistake had been made.

49.	Mrs Gulzaman did not monitor A's fluid balance but clearly felt she had responsibility.  This is evident not least by her admitted involvement in falsification of records.  We find that Mrs Gulzaman has been guilty of misconduct in that respect and the failure to monitor fluid balance was a contributory factor to harm caused to A which led to his hospitalisation.

50.	Whilst giving evidence at the hearing Mrs Gulzaman hesitated, was uncomfortable and reluctant to respond to questions, particularly so in respect of the important issue of the presence of Mrs Carranza whilst she was in A's room.  She contradicted earlier statements that she had made.  

51.	Mrs Gulzaman has admitted in her written statement and on oath at the hearing that she made false entries on the fluid balance chart and Kardex Patient Record System; actions she now very much regrets.  These falsifications are patently dishonest but we also found her dishonest in that she attempted to mitigate her own actions by shifting blame and shared responsibility upon Mrs Carranza and other Unit staff.

52.	We find despite what Mrs Gulzaman stated at the hearing, she was in the room whilst Mrs Carranza was changing A's heel wound.  She had not drained the catheter but subsequently told Mrs Carranza she had and on that basis falsified records.

53.	Mrs Gulzaman has compounded what may have been an oversight or mistake, albeit important.  In doing so she has aggravated her misconduct.  She has failed A and her professional colleagues.  She has acted such that information relevant to a vulnerable person's wellbeing could not be relied upon.  Whilst she gave evidence of pressures upon her, we do not for the reasons above find any reasonable excuse for her failings.

The Law

54.	The appeals are made under Schedule 5 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 and Section 86(1) of the Care Standards Act 2000. The conditions required to be met before an individual is included on the Protection of Vulnerable Adults list are set out in Section 82 of the 2000 Act. 

55.	By Section 86(3)(a) if "the Tribunal is not satisfied of either of the following, namely – (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult and (b) that the individual is unsuitable to work with vulnerable adults, the Tribunal shall allow the appeal ..…"

56.	In these appeals the decision to place the Appellants on the POCA List was as a result of their inclusion in the POVA List.  In that case, Section 97 of the 2000 Act and Section 2C of the Protection of Children Act 1999 provides that misconduct relating to a vulnerable adult for the purposes of the POVA List satisfies the requirement of misconduct relating to a child.  However, the issue of unsuitability to work with children falls to be considered separately.

57.	Under Section 1 of the Protection of Children Act 1999 the Secretary of State must 'keep a list of individuals who are considered unsuitable to work with children.  By Section 4(1) an individual who is included in the list may appeal to the Tribunal against the decision to include him in the list.

58.	By Section 4(3) if "the Tribunal is not satisfied of either of the following, namely – (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm, and (b) that the individual is unsuitable to work with children, the Tribunal shall allow the appeal and direct his removal from the list; otherwise it shall dismiss the appeal …"

59.	We consider that the Appellant’s suitability relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.

60.	The purpose of the listing scheme is to protect children from those who are employed to work with them and to maintain public confidence in the care provided to children.  Listing under the scheme involves a difficult balancing exercise between the safety of children and the rights of individuals to have their livelihoods and reputations safeguarded (see Lady Justice Hale in R v The Secretary of State for Health ex parte C (2000) EWCA 49).  We consider that this exercise is equally applicable for vulnerable adults.

61.	The burden of proof is upon the Secretary of State.  The standard of proof is the civil standard upon a balance of probabilities.

62.	On 3 November 2008 the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 came into force and regulated the Tribunal procedure from that time.  Paragraph 2(1) of the Rules states that: "The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly."  Paragraph 2(2) "Dealing with a case fairly and justly includes ………..(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings."

Tribunal's conclusions

Mrs Carranza
63.	We found Mrs Carranza's evidence to be forthright and convincing.  She was able to respond to questions put to her and the answers she gave were consistent with those given in her statements made during the contemporaneous investigations and at a RCN disciplinary hearing.  The evidence she gave was consistent with that of others and we conclude that we could rely on what she stated.  We also conclude that it was logical for her to maintain her description of events which was accurate from her view point.

64.	We accept as conceded on behalf of the Secretaries of State that the burden of proof to establish misconduct to the extent required could not be discharged by them and that the appeals could no longer be opposed.  We find it unsatisfactory that clearer steps had not been taken to define each nurse's duties on the shift and this remains an area of concern but does not amount, in our view, to misconduct that could lead to the conclusion that she is unsuitable to work with either vulnerable adults or children.  We conclude Mrs Carranza's appeal should succeed and her name should be removed from the relevant lists maintained by the Secretaries of State.

Mrs Gulzaman
65.	Whilst Mrs Gulzaman's involvement of Mrs Carranza who was also on duty at the time might be excusable; a deliberate falsification of two different records shows a degree of untrustworthiness and underlying lack of integrity that is disturbing.

66.	Mrs Gulzaman's references and lack of disciplinary history show that she is capable of providing care but failures in this instance and in particular her dishonesty and evasiveness afterwards lead us to the conclusion that she cannot be relied upon.  Her capabilities are outweighed by her lack of reliability and personal integrity.  Her personal responsibility for care and veracity in records; issues fundamental to the welfare of patients, particularly vulnerable adults, lead us to conclude that she is unsuitable to work with vulnerable adults and her appeal should be dismissed. For similar reasons we conclude that Mrs Gulzaman is unsuitable to work with children and her appeal should be dismissed.	

Restricted Reporting Order

67.	Taking into account the context of this appeal, the evidence of a personal nature relating to a vulnerable adult and the interests of that adult and his family, we continue the restricted reporting order in the terms set out in paragraph 3 save that it shall remain in force indefinitely.

Order

Our unanimous decision is that:

	i.	Mrs Carranza's appeals are allowed
	ii.	Mrs Gulzaman's appeals are dismissed

Mr Laurence Bennett (First Tier Tribunal Judge)
Ms Bridget Graham
Ms Maxine Harris

Date: 6^th January 2009