England and Wales Care Standards Tribunal

Quashed by Mr Justice Sullivan

J v National Care Standards Commission (Quashed) [2003] EWCST 0168(NC) (2 January 2004)

Application No: [2003] 0168.NC

J Appellant

and

National Care Standards Commission Respondent

Before: Mr. Andrew Lindqvist, Chairman
Mrs. Susan Howell
Dr. Christopher Treves Brown

On the 8^th, 9^th , 10^th and 12^th December 2003

This is an appeal made on the 30^th April 2003 by J against the refusal by the respondent National Care Standards Commission on the 4^th April 2003 to grant him registration under Part II of the Care Standards Act 2000 as manager of a care home at Middlefield House Nursing Home in Gainsborough, Lincolnshire. On the 11^th June 2003 the respondent gave notice of its opposition to the appeal and on the 7^th July and the 4^th August the President gave directions about the documentary and oral evidence, which it is not necessary to repeat in detail.

At the hearing the appellant was represented by Miss Melanie Macdonald, instructed by Carol Triplett and the respondent was represented by Mr. Bruce Silvester, instructed by Mills & Reeve of Edgbaston.

In refusing the registration and opposing the appeal the respondent relied on three matters,

i) J’s inadequate knowledge and understanding of the applicable legislation, regulations, standards and principles,

ii) findings of misconduct by J made by the Professional Conduct Committee of the Nursing and Midwifery Council in October 2002,

iii) J's failure to disclose those findings or antecedent investigations, principally but not exclusively on the form with which he applied for registration.

Background

J, the appellant, who is now 45 years old, joined the nursing profession some twenty years ago as a care assistant. He became an Enrolled Nurse (Mental Health) in 1985 and a Registered Nurse (Mental Health) in 1989. In August 1995 he took over the management of Lowfield House, a home for adults with physical and learning disabilities, owned and operated by a company called Prime Life Limited. Early in 1998 allegations were made about the appellant's conduct in 1996/7 towards service users at Lowfield House. The appellant made a statement to the police and in or about September 1998 he received a letter from the police indicating that, on the advice of the Crown Prosecution Service, the matter was to be taken no further. There would also have been investigations by the South Humber Health Authority and the North Lincolnshire Social Services Department, which the Tribunal heard produced similar results. The allegations were also investigated by Prime Life Limited.

In 1999 the appellant moved to Middlefield House, an establishment which, as had Lowfield House, needed a good deal of re-organisation to improve the management and provide a better quality of life for the residents. The appellant did not need formal registration under the Registered Homes Act 1984, then in force, but Lincolnshire County Council operated a voluntary registration scheme and the appellant achieved such 'voluntary registration'.

By July 2000 the appellant's professional body, formerly the United Kingdom Central Council for Nurses, Midwives and Health Visitors, had become the Nursing and Midwifery Council (hereinafter "NMC") and had decided to consider the allegations made against the appellant in early 1998.

In April 2002 the new regime of the Care Standards Act 2000 came into force, its regulations (unlike its predecessor) required the appellant to be registered and he applied for such registration on the 14^th April 2002.

The Professional Conduct Committee of the NMC held a hearing on the 14^th, 15^th and 16^th October 2002 about the appellant's conduct towards service users at Lowfield House in 1996/7, found the appellant guilty of four counts of misconduct and cautioned him as to his future conduct, the caution to remain on his record for five years. The four counts of misconduct were i) hitting a resident on the penis with a pen (to discourage him from masturbating), ii) wheeling a resident into the dining room with a waste-paper bin on her head, iii) forcibly administering medication to a resident and iv) kicking a resident on her buttocks.

As part of the standardised process of assessing 'fitness' which is being developed by the respondent, the applicant was sent a "Fit Person Questionnaire", which he completed on the 9^th January 2003 and he attended on the 22^nd January 2003 for the required interview with two officers of the National Care Standards Commission.

The evidence on behalf of the respondent

The Tribunal had written statements by Anne Carswell, Duncan Howells, Kathryn Emmons and Douglas Tunmore, all of whom gave oral evidence and were cross-examined.

Mrs. Carswell is an area manager for the respondent, based in Lincoln. She was not aware of the hearing before the Professional Conduct Committee of the NMC until Michelle Hurst, the respondent's area manager in Scunthorpe, sent her a copy of the front page of the Scunthorpe Telegraph of the 15^th October 2002 with a report of the hearing of the allegations against the appellant. Mrs. Carswell discussed the matter with Mr. Duncan Howells, locality manager, and suggested that he might contact Prime Life Limited about the possible suspension of the appellant pending the outcome of that hearing and about informing service users, carers and relatives.

Mrs. Carswell described how an application for registration is processed, in particular the interview stage. The whole process, she said, is an assessment rather than an examination. The interviewers (in this case Duncan Howells and Kathryn Emmons) have a proforma with tick-boxes. The interviewee does not see the proforma, the interviewers tick boxes to indicate appropriate responses given by the interviewee in answer to specific questions. She said that the appellant would have been refused registration on the basis of his performance at that interview, alone.

Under cross-examination Mrs. Carswell dealt with the appellant's responses to specific questions at his interview. She said that it had been decided to take no action after the announcement of the NMC findings despite the respondent's concerns. Positive aspects of the appellant's application for registration had been taken into account, including the comments of the Chairman at the NMC hearing and the satisfactory inspection reports about Middlefield House.

Re-examined she said that after the NMC hearing there was little the respondent could have done other than bring about the closure of Middlefield House and that it was obliged to continue with the fit person interview even if it did think the findings of the NMC enquiry alone sufficient to refuse registration. Mrs. Carswell thought the decision to refuse registration a balanced one, the imposition of conditions had been considered but rejected. In answer to a question from the Tribunal, she agreed that an interviewee who had managed to get hold of a copy of the proforma could, by learning the expected answers, get a high mark not necessarily in accordance with his ability or fitness but in general she thought that the standardised form worked reasonably well.

Mr. Duncan Howells, the respondent's locality manager, told the Tribunal about the fit person interview, conducted by himself and Miss Emmons on the 22^nd January 2003. He had read the appellant's application and references and a summary of the NMC hearing. It was decided that Miss Emmons would ask the questions and Mr. Howells would record the appellant's replies on the proforma. That was duly done. There was subsequent discussion about the matters on the self-assessment questionnaire and the findings of the NMC hearing. After the interview, he and Miss Emmons agreed that the appellant's replies did not demonstrate that he had sufficient knowledge and understanding of the role and responsibilities of a manager of a care home, found that the appellant had lied on his application form and considered the NMC findings to be a matter of grave concern.

Cross-examined, Mr. Howells said that there was little the respondent could have done after the NMC findings and referred to his correspondence with Mr. van Herrewege, managing director of Prime Life Limited. He said that his view was that the NMC findings were in themselves a sufficient basis for a refusal of registration and that however well the appellant's interview had gone, he could not have been granted registration. Asked specifically about the decision that the appellant had lied on his application form, Mr. Howell agreed that that had not been directly put to the appellant during the fit person interview. Miss Emmons had asked the appellant more than once if there was any information on his application form that he wished to change and the appellant had not indicated any such wish. Asked about any limitations of the proforma process, Mr. Howells said that he would need time to consider, but immediately, could see no problems. The process did depend on the skill of the interviewer, in particular in ensuring that the interviewee had understood the question. After the interview, he had drafted the report to Mrs. Carswell. Mr. Howells agreed that the Care Standards Act and its regulations and standards presented quite a challenge in the form of information to be absorbed and agreed that the inspection reports of Middlefield House showed improvement with time. He agreed that no formal feedback had been given to applicants, including the appellant although there were guidelines to the effect that that should be done.

Mr. Douglas Tunmore, an inspector employed by the respondents, gave evidence briefly on two matters, one of which was controversial. He said that he had carried out an inspection of Middlefield House on the 2^nd October 2002 and, although there had been ample opportunity, especially as abuse was discussed, the appellant had not mentioned the then forthcoming NMC hearing (on the 14^th ). He also said that on the 16^th October the appellant had telephoned him to ask for a copy of the 2^nd October inspection report (for the NMC Committee to consider in connection with the matter of "sentence", the four counts of misconduct having just been found proved). Mr. Tunmore was unable to help the appellant with the copy but said that he took advantage of the opportunity to ask why the appellant had not told him on the 2^nd October about the then forthcoming hearing. According to Mr. Tunmore the appellant's response was that he did not, on the 2^nd October, have a date for the hearing. He referred to a conversation with Mr. van Herrewege in which the latter had said that if found guilty by the NMC the appellant would be dismissed and his deputy would take charge. He did not agree that Mr. van Herrewege had said that that would happen only if the appellant lost his PIN number, which would have made him unemployable as a nurse manager.

Miss Kathy Emmons is also an inspector employed by the respondent. She described the fit person interview with the appellant on the 22^nd January 2003 much as Mr. Howells had described it and referred to certain specific questions and answers. After the questions on the proforma had been dealt with, Miss Emmons said that she asked the appellant if there were any changes he wished to make to the information on his application form. She agreed that there is no record of the question but is certain that she asked it. The response was in the negative. Miss Emmons explained that an applicant has to satisfy the interviewers of his fitness, the interviewers may prompt but do not cross-examine. She said that she gave the appellant three opportunities to correct the information on his application form and he accepted none of them, but she did not directly ask him about his negative reply to the questions about earlier complaints and investigations or give him his application form to look at to refresh his memory.

Under cross-examination Miss Emmons was asked about the recording of the interview and the notes taken. She agreed that the appellant had readily answered questions about the NMC proceedings themselves and might not have recognised as such any of the opportunities to correct the information on his application form. She accepted that perhaps she should have asked a direct question about that and agreed that in apparent breach of Fit Person Guidance, an internal guide used by the respondent, no feedback was given to the appellant.

In answer to the Tribunal's questions, Miss Emmons said that she had been trained to approach fit person interviews in a relaxed and informal way.

Both Mr. Howells and Miss Emmons were asked about the applicant's answers to a number of specific questions on the proforma. Some of them are of particular importance.

Question 11 is "What would you do if it were reported to you that an incident of abuse had occurred in the Home?" The appellant correctly answered that he would alert the police, contact the registration authority and 'significant others', but was criticised for saying that he would start investigating because his investigations might spoil or confuse important evidence.

Question 21 is "How do you respond to the service user who does not want you or the staff to be present when s/he has a consultation with the G.P.?" The appellant correctly answered that he would acknowledge the service user's right to privacy but added that he assumed that he would be told what medication had been prescribed, a remark which was seen as a potential breach of the service user's privacy.

The appellant's submission

At the conclusion of the respondent's evidence, Miss Macdonald submitted on behalf of the appellant that he had no case to answer. Such a submission is a feature of life in the criminal courts but a rare occurrence in the civil courts. Since the Tribunal was concerned with a dispute between the State and a citizen the outcome of which, if not a sentence in the criminal sense, was likely to affect the citizen's future, the proceedings before it seemed to the Tribunal to have characteristics of criminal rather than civil litigation. It seemed that Miss Macdonald's submission must be that there was no evidence upon which a reasonable Tribunal could properly deny the appellant his registration. The submission, however, relied heavily on the respondent's procedures. It was said that they were so flawed that the respondent had never put itself in a position to make a proper decision because the requirements of natural justice had been ignored or overlooked. Recognising that the criteria for judicial review were not relevant where the appeal process had not been exhausted, Miss Macdonald argued that the existence of that appeal process should not put the appellant in a worse position than he would be in if that appeal process did not exist and he were entitled to apply for judicial review. Although that argument has its attractions, the appellant before the Tribunal has the benefit of a rehearing - a very different matter from a judicial review. Which remedy is likely to be of more benefit to any particular appellant depends on the facts and circumstances of the particular case. The Tribunal had to conduct a rehearing and while it could consider procedural flaws as part of that, it could not grant a remedy based on procedural flaws alone. Miss Macdonald's argument was that the fit person interview was so flawed that the respondent could not rely on it as evidence of unfitness, the allegation of lying on the application form had never been put to the appellant so the respondent could not rely on that and the NMC findings themselves could not be considered because they were not given sufficient or any prominence in the relevant documentation, in particular in Mr. Howells's report to Mrs. Carswell of the 24^th January 2003. Mr. Silvester pointed out that the matter of the NMC findings was clearly set out at paragraph 8 of the formal notice of refusal of registration dated the 4^th April 2003.

Approaching the matter as it felt obliged to, on the basis of an assertion of no evidence on which a refusal of registration could properly be based, the Tribunal was obliged to reject the submission. There plainly was evidence of some unsatisfactory answers to questions in the fit person interview. The appellant had not been candid on his application form about the NMC hearings and the findings of misconduct themselves were a very significant piece of evidence. In the Tribunal's view, those matters could, at least together, if not individually as Mr. Silvester had suggested, constitute adequate grounds for refusal of registration. Whether or not they did constitute such grounds fell to be decided in the light of all the evidence including the appellant's. Any procedural defects resulting in that evidence not being fully to the fore in the respondent's considerations were remedied by the opportunity afforded to the appellant to put his case to the Tribunal.

The evidence on behalf of the appellant

The Tribunal had written statements by J the appellant, Peter van Herrewege, the managing director of Prime Life Limited, Benedicto Dawson, the director of adult services of Prime Life Limited and Helen Laverty, Health Lecturer at the University of Nottingham together with a letter from Mr. and Mrs. Duffield. The appellant and Mr. van Herrewege gave oral evidence.

J told the Tribunal about his experience in the nursing profession and said that he had recently undertaken a course in clinical supervision and current legislation among other things, at the University of Nottingham. He had also enrolled on a management course with a view to a National Vocational Qualification. Of the complaints about his conduct in 1998 the appellant said that he had first learned of them through an internal complaints procedure. He went voluntarily to the police station and made a statement about the incidents and about six months later was told that the police were to take no further action. Michelle Hurst, then of South Humber Health Authority, told the appellant that she would refer the matter to the UKCC (which later became the NMC). For a long time the appellant heard nothing and put the matter to the back of his mind. Then, in mid-July 2000 he received a letter indicating that the NMC would investigate the complaints which would then be considered by the Preliminary Proceedings Committee. He contacted his Union representative. The appellant said that there were large temporal gaps in the UKCC's correspondence, so much so that he hoped the enquiry would simply 'fizzle out'. A hearing was set for March 2002 but cancelled. That was the situation when he filled in the application form. He felt that he should have answered 'Yes' to the questions about complaints and investigations, but having doubts telephoned Mr. van Herrewege, whose advice was to the contrary. The matter proceeded and in September 2002 a further date was set for a hearing in October.

The appellant said that he loved his job of caring for learning disabled young adults. He loved the responsibility, working with good people and interacting with service users' relatives. The service users at Middlefield House are, he said, quite a challenging group. He rejected the suggestion that he was merely "going through the motions" of inclusion rather than genuinely trying to involve and include the service users in the running of Middlefield House and cited as an example his persuasion of Prime Life Limited to provide a vehicle for outings and trips by the service users. The appellant said that he did not regard supervision and appraisal of staff as a waste of time but was very aware that such things took staff away from the care of service users, which was their most important task.

Dealing with question 11 about action to be taken on learning of abuse, the appellant said that he would not cause investigative problems but would simply make a copy of the staff rota, ensure that the complaint book was completed and tell staff who needed to be informed. As to question 21 about the service user's relationship with the G.P., the appellant pointed out that unless he knew the outcome at least in terms of the medication prescribed, he could not monitor the situation. Dealing with question 23 about a sexual relationship between two service users, the appellant said that he would not intend to confirm the existence of the relationship, but would have to explain to the relative that service users have rights and it was not for him to report on or hinder their proper choices. The appellant accepted that his knowledge of relevant delegated legislation was deficient and prayed in aid, in exoneration, domestic difficulties and lack of time. As to the misleading application form, the appellant said that he did not know that Mr. Howells and Miss Emmons had the form in front of them at the fit person interview and the questions about changing information on it did not stand out in his mind. He did remember speaking with Mr. Tunmore on the third day of the NMC hearing but not specifically being asked why he had not, on the 2^nd October, told Mr. Tunmore about it. He explained that he had telephoned from the hotel where the hearing was taking place and was very stressed.

Cross-examined by Mr. Silvester, the appellant said that he had been confused by a certificate mistakenly issued to him to the effect that he was the registered manager. He could not explain why he had not taken that certificate with him to the fit person interview, although he had received a letter asking him to take documents including certificates, but did not readily accept the suggestion that he was aware that it was a mistake. He had had a lot of help from his Union representative and from Mr. van Herrewege among others, in preparing documents and writing letters. The appellant accepted that he should have disclosed the complaints and the police investigations on his application form, he said that he was not proud of his behaviour and regretted it. The NMC hearing had been quite widely publicised on the internet and in the local press, so he had had no hope of "getting away with it" and if the matter had been directly put to him he would have admitted that the form was inaccurate. In answer to the Tribunal's questions, the appellant said that although Middlefield House was registered for young adults (at least according to the establishment registration certificate dated 1^st April 2002), the service users actually ranged in age from the mid-twenties to 63. The appellant said that he had learned lessons from the last five years and he told the Tribunal about the students from Nottingham University who had placements at Middlefield House to learn about the health needs of people with learning disabilities. He had spoken with Helen Laverty and with Mr. van Herrewege about improving his theoretical knowledge.

Mr. van Herrewege said that Michelle Hurst had informed him about the complaints against the appellant. Two directors of Prime Life Limited were appointed to investigate including taking into account the findings of other investigating bodies. The inquiry concluded that there was no evidence to support the complaints. He requested but was not sent information from the enquiries.

The appellant had taken over as manager of Middlefield House in 1999, at which time the establishment had been in receivership and needed to be "turned round". He was approved under the Lincolnshire County Council voluntary scheme. In 2002 the appellant had told him of the NMC investigations. He, Mr. van Herrewege, thought that the outcome of those investigations was likely to be similar to that of the investigations of other authorities notably the police. In April 2002 when the appellant was completing the application form, Mr. van Herrewege had advised him that the 1998 complaints had no relevance. When, in July 2002, he had received a certificate of the appellant's registration, he believed the appellant to have been duly registered. He felt strongly that the appellant was a talented manager, both Lowfield House and Middlefield House had needed substantial reorganisation to produce their respective recoveries. He had no doubt that the appellant was committed to his client group.

Cross-examined Mr. van Herrewege admitted some misleading statements in his correspondence but denied any deliberate deception. He said that he felt "bloody stupid" about the advice he gave in relation to the application form but emphasised that there was no intention to conceal the NMC investigation. In answer to the Tribunal's questions he spoke of the appellant's strengths as a manager as manifested by the loyalty of his staff and the low staff turnover at the establishments he managed.

In their respective written statements Mr. Benedicto Dawson and Mrs. Helen Laverty gave evidence of the appellant's qualities and success as a care home manager. Mrs. Laverty referred to her sending of nursing students to the homes managed by the appellant. Mr. and Mrs. Duffield's letter testified to their satisfaction with the appellant's care of their son, Russell.

The Tribunal's findings

The Tribunal had reservations about the fit person interview and the use of the proforma. The standard proforma suffers from many of the disadvantages of what is fashionably called the "one size fits all" approach. Its most obvious danger is that any candidate with an average or better memory and a copy of the form could readily "mug up" the appropriate answers and thus achieve a high mark while having little or no real knowledge of the care of the vulnerable. An answer given by a manager who owns a home may be different from the answer of one who is employed by a company which takes overall responsibility for policies and training. An interviewee from one background may score highly when another equally or perhaps more competent may score badly. Question 21 about the service user who wants a private consultation with the G.P. affords an example. The 'correct' answer is that he should be allowed it. The appellant was criticised for his answer that he assumed that he would be told what medicine had been prescribed. However, in reality, none of the appellant's service users is capable of managing his own medication so the appellant has to be told what each service user is to take. It would obviously be a grave and potentially damaging breach of the duty of care to allow a person with serious learning difficulties to control his own intake of, for example, anti-convulsants. While that question was designed to elicit an answer about respect for service user privacy, another question, question 24, about repeated unannounced departures from the Home appeared to be intended to provoke a rather different response, involving a multidisciplinary team meeting to discuss the problem. In each instance there is a conflict between safety and confidentiality, the manager has to strike the right balance and in that respect there is no difference in principle between administering medication and walking abroad. In the case of the appellant's service users safety in the matter of medication almost always outweighed privacy. It probably did so also in the matter of walking abroad, but the point is that the needs, abilities and limitations of service users in general are so diverse that it cannot be suggested as a general principle that privacy should come first in the matter of medication, safety in the matter of walking abroad. To the extent that the proforma was based on such assumptions the Tribunal considered its approach to be misconceived. Question 23, which asks about the hypothetical service user's sexual relationship, poses similar problems. The question assumes that the service user's relative already knows about the relationship. While it would be wrong in most circumstances for the manager to divulge such a relationship to a relative, it is surely very much less serious to let the relative know that the manager is also aware. Indeed the relative might well query the ability of a manager in whose home such things happened without his knowledge.

Question 11 about action to be taken in connection with an incident of abuse gave rise to a different problem, but relevant to the other questions. The appellant correctly said that he would inform the police and others, but then said that he would start investigating. He was not asked what form his investigations might take but it was assumed that they would be such as might contaminate the evidence. It is difficult to see how that could be so if they were confined, as the appellant said in his evidence, to ensuring that relevant records were complete, making copies and ensuring that all who needed to know were informed. But as the matter was never put to the appellant, his explanation of the scope of his investigations was heard for the first time by the Tribunal. By then, of course the appellant was very much aware of the point of the question and, in that respect, in the position of the hypothetical candidate who has provided himself in advance with a copy of the proforma.

In a similar vein, the appellant was not asked in the interview for his account of the incidents of misconduct, nor, except in terms too oblique to make clear the purpose, for his explanation of the falsehoods on his application form. It may well be that those matters were not put to the appellant because Mr. Howells and Miss Emmons did not see it as their duty to interrogate or to cross-examine and had been trained to adopt a relaxed, informal and non-confrontational approach. If so, they strayed so far in that direction that they not only failed to indicate the respondent's view of the seriousness of the misconduct and to extract relevant information from the appellant, but also failed to provide him with a recognisable opportunity to give them the information they required.

The Tribunal found that the interviewers had to an extent before the interview formed a view about the appellant's fitness and that the consequent prejudice was reflected in some of the answers on the proforma.

The Tribunal therefore found the fit person interview to have serious inherent defects. It was also clear that the appellant whose background was largely 'hands-on' with a minimum of theoretical input was at a disadvantage in a theoretical discussion. The appellant is undoubtedly one of those who are much better at handling a situation than at putting that situation into its theoretical context.

Against these deficiencies in the respondent's procedures, there must be weighed the appellant's admission of substantial gaps in his knowledge of the legislative framework and, perhaps to a lesser extent, in his administrative work and supervision and appraisal of staff.

The four counts of misconduct are an obvious matter of weight against the appellant, involving as they do, abusive behaviour towards vulnerable service users. The Tribunal did not of course hear the evidence about those incidents and so felt bound to a degree by the conclusions of those who did. The NMC considered a caution to be the appropriate penalty, clearly taking the view that the offences were not so grave as to necessitate the end of the appellant's career as a nurse. The Professional Conduct Committee took into account the appellant's significant contribution to learning disability nursing and his commitment to practice development and patient care.

The Tribunal noted that the complaints were the only complaints to have been made against the appellant during a nursing career now of some twenty years, including eight as a manager, and arose on an occasion (rare in the appellant's career) of some staff discontent. The Tribunal did not share the respondent's view that it was effectively powerless to do anything after the findings were made known; it could, for example, have imposed conditions restricting or even suspending the appellant's activities at Middlefield House. That it chose not to do so indicates, in the Tribunal's opinion, the respondent's sharing of the NMC's view as to the proper reflection of the gravity of the offences.

That the appellant had been dishonest in answering the question on his application form about previous complaints and investigations was an inescapable conclusion. The appellant admitted as much and, to his credit, in the last resort did not seek to make excuses but said that he was not proud of his conduct, regretted it and would not do the same again. There were relevant features in the background to the falsehoods. The appellant, no doubt to a degree, saw the complaints as trouble-making by a disgruntled ex-member of his staff, as was suggested in the enquiry at the time by Prime Life Limited. Authority in general had not moved with alacrity to deal with the matter. The police and the Crown Prosecution Service had taken six months to decide to do nothing. If, as Mr. van Herrewege appeared to think, the South Humber Health Authority and North Lincolnshire Social Services had conducted any sort of investigation, neither had taken any apparent action as a result. Nobody had brought the matter to the attention of the appellant's professional body, the NMC, until July 2000, some two and a half years after the events occurred. The pace of its prosecution of the matter was such that, by April 2002 when the appellant filled in the offending form, the complaints had not been heard, a date set for the previous month having been cancelled. For what it is worth, Prime Life Limited too had carried out an investigation, though it is right to record that the Tribunal was not favourably impressed by either its thoroughness or its recording. It appears to have been conducted, in the main at least, by a personnel officer, whose qualifications and experience in such matters, were, to say the least, not obvious. By April 2002 the appellant was fed up with repeated and protracted investigations into the complaints, he felt entitled to have the matter concluded and to put it behind him so that he could get on with his life. He knew how he should have answered the question on the form, but felt irritated at this long-standing impediment to his career. The Tribunal thought it likely that the appellant telephoned Mr. van Herrewege in the hope of a sympathetic view, which he obtained. Thus fortified, he allowed his feelings to overcome his better judgement. Having embarked on that course, he stuck to his guns and did not mention the then imminent hearing to Mr. Tunmore during the 2^nd October inspection. Neither did he, the Tribunal finds, answer properly Mr. Tunmore's question during the telephone conversation on the 16^th October, though having just been found guilty and awaiting sentence, the appellant may well not have had the matter raised by Mr. Tunmore uppermost in his mind, in which case it may be that he has forgotten that part of their conversation.

Those matters, as Mr. Silvester rightly says, provide grounds on which the appellant could properly be refused the registration he seeks. On the other side of the argument are numerous indications of the appellant's success in the job for which he seeks registration. Prime Life Limited, his employer for the last seven years stands by him and speaks with appreciation of his efforts at Lowfield House and Middlefield House, where undoubtedly the appellant has effected great improvements. His evidence left the Tribunal in no doubt that the appellant loves his work and is devoted to his service users. The low staff turnover at his homes indicates a happy working environment, a feature in accordance with Mrs. Laverty's evidence that she sent nursing students to homes managed by the appellant to see the practical side of the subjects they were studying. That evidence impressed the Tribunal in the light of the high standing and reputation of the University of Nottingham in this field. The various inspection reports seen by the Tribunal show at the very least a satisfactory state of affairs with gradual improvement. It is noticeable that in a number of respects the appellant's scores on certain standards are much better than his scores on similar matters when discussed during the fit person interview.

There is no definition of 'fitness' at least for the purposes of Part II of the Care Standards Act 2000 and the regulations made under it. There is guidance in reg 9 of the Care Homes Regulations 2001, which refer to integrity and good character, qualifications, skills and expertise and physical and mental fitness. Although exploring synonyms can be a useful exercise, it is of limited assistance in this case. It is reasonably clear what standards have to be met. The questions for the Tribunal are whether the appellant's dishonest answers on the form impugn his integrity so that that standard is not met, whether the four counts of misconduct indicate that he lacks the required skills and qualifications, whether his poor performance especially on theoretical questions at the fit person interview shows that his qualifications, skills and experience do not meet the required standard.

In what is in the Tribunal's view a finely balanced decision, having considered all relevant matters and reminded itself that the burden is on the respondent to prove the appellant's unfitness on the balance of probabilities (the civil standard), the Tribunal's decision is that the balance favours the appellant. He is now, if not before, aware of the areas in which his knowledge needs to be improved and has already taken steps, by enrolling on courses, to improve it. The Tribunal is confident that he will continue to do so with the support of Prime Life Limited, his employer. The appellant has come close to causing serious damage to his career and in the Tribunal's view has learned from the experience.

For those reasons the Tribunal unanimously allows the appeal.

The Tribunal gave some thought to the possibility of imposing conditions, but concluded that useful conditions would be extremely difficult to draft and equally difficult to enforce. It therefore decided that the imposition conditions would not be appropriate.

Andrew Lindqvist
Nominated Chair

2 January 2004