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England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Knoote v Commission for Social Care Inspection [2003] EWCST 137(EA-JP) (11 March 2005)
URL: http://www.bailii.org/ew/cases/EWCST/2005/137(EA-JP).html
Cite as: [2003] EWCST 137(EA-JP)
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- The Respondent seeks to strike out the Applicants' appeals in these cases. The Applicants appeal against an order made by a Justice of the Peace on 24th January 2003 cancelling the registration of a care home under the emergency procedure under s 20 Care Standards Act 2000.
- I heard Mr I Mayers, Solicitor of Mills and Reeve on behalf of the Respondent, and Mr K Knoote appeared in person on behalf of himself and his wife, at an oral hearing of the application on 11th March 2005.
- The facts of this matter are that the Applicants were charged with and pleaded guilty to a number of serious criminal offences as set out in the letter dated 30th April 2004 from the CPS. Both Applicants received custodial sentences. The indictment contained counts relating to failure to conduct a business in such a way as to ensure that persons not in employment were not exposed to risks to their safety and health; wilfully neglecting named patients; administering a poison or noxious substance with intent; and administering a medicinal product other than in accordance with the directions of an appropriate medical practitioner.
- The Respondent submits, both in the skeleton argument and in the oral submission, that the decision to continue with the appeals is misconceived or frivolous or vexatious and that therefore the appeals should be struck out.
- The Respondent acknowledges that the decision to strike out an appeal at this early procedural stage is a draconian measure and should not be exercised lightly. The Respondent accepts that the position adopted by the Tribunal in Hall v CSCI [2003] 242.EA promulgated on 17th August 2004 is correct: "An application to strike out an appeal under the Regulations is a procedural devise that should be exercise with caution…It does not seem to us to be the appropriate forum for considering the detailed provisions of the Care Standards Act 2000."
- Mr Mayers submits, however, and I agree with him on this submission, that the facts in this case are very different to those of Hall. In this case, there is no issue about the interpretation of the Care Standards Act; for example the Tribunal is not faced with considering the question whether premises are an essential component for continued registration.
- This is a case where the Justice of the Peace was concerned with the question whether, unless the order were made, there would be a serious risk to a person's life, health or well-being.
- I was told, and Mr Knoote did not demur from this, that Mr and Mrs Knoote had been arrested, that they had been kept in custody during questioning by the police, and that they had then been released at that stage without any conditions.
- Mr Mayers submits that the Justice's conclusion has been confirmed by the outcome of the criminal proceedings; that the existence of a serious risk has been proved to a criminal standard; and that the risk would have continued unless the order cancelling registration had been made. In these circumstances, Mr Mayers submits that if the appeals went to a full hearing, the Tribunal would have no alternative but to dismiss the appeals. Accordingly, he submits, this is a case where the strike out provisions should be exercised.
- I have read carefully the letter from Mr Knoote and listened to what he had to say on his and his wife's behalf. He went through the background history of this matter, and he suggested that the decision to seek an emergency order was made because the Commission were faced at that time with a situation of a number of residents who did not want to leave. Even if I were to accept all that Mr Knoote told me about the historical background to the matter, I am still faced with the fact that both he and his wife pleaded guilty to counts in an indictment of serious criminal conduct related to the running of this home, and that these counts referred to incidents right up to the moment that the emergency order was applied for.
- The Tribunal cannot reopen an examination of the facts underlying the criminal convictions. In this situation, I have no doubt but that if the case went to a full hearing, there is only one result and that is to dismiss the appeals.
- Having reached this conclusion, I have to consider whether to allow the case to proceed would be misconceived or frivolous or vexatious. I must weigh a number of factors in the balance. First, the cost to the parties and indeed to the Tribunal is an important consideration that cannot be overlooked in a case such as this, especially bearing in mind the fact that any costs warning would not be a realistic alternative. Secondly, although a draconian remedy, there will be some cases where an early "closure" may actually be in the interests of the Applicant. Although the Applicant should of course be allowed to make up his or her own mind on what is in his or her best interests, the Tribunal cannot ignore the fact that continued worry and stress of protracted proceedings may, in some cases, have an adverse effect on the health of an Applicant. I have heard no evidence on this matter in this case and it plays no part in my decision.
- In this case, cost is an important consideration. It is essential that the Tribunal's resources are devoted to cases where there is a real issue that requires a decision. It is not a good administrative practice to allow a case to continue where only one result can be made. I am satisfied also that in this case, a costs warning, as an alternative to a strike out decision, is not a realistic option.
- I have reached the conclusion that, as a result of their criminal convictions, and weighing all the factors account, that the Applicants' cannot succeed in their appeals. In these circumstances, to continue with the appeals would be pointless, or in the words of the Regulation, certainly misconceived, and possibly also frivolous. A strike out at this stage is a proportionate response.
Accordingly, the Appeals are struck out.
In accordance with Regulation 4A(4), where the President has made a determination to strike out an appeal, the Applicant may apply to the President for the determination to be set aside. Such an application must be made not later than 10 working days after the date on which this determination was sent to the Applicant, and must be in writing stating the grounds in full. If an application is made under Regulation 4A(4), the application will be sent by me to another Chairman not involved in this case who will issue any further Directions.
His Honour Judge David Pearl
President
11th March 2005.