England and Wales Care Standards Tribunal

Bhatnagar & Ors (Park Manor) v Commission For Social Care Inspection [2002] EWCST 360(EA) (30 March 2005)

BETWEEN
MR R.K. BHATNAGAR, DR M. BHATNAGAR & DR J. RANDHAWA (PARK MANOR)

Appellants

-and- THE COMMISSION FOR SOCIAL CARE INSPECTION

Respondents

[2002] 0360.EA [2002] 0361.EA [2002] 0362.EA
Before: Mr Ronald Coia, Chairman Mrs Jenny Lowcock Dr David Cochran
DECISION

Heard at the VAT & Duties Tribunal Manchester at West Point, 501 Chester Road, Old Trafford, Manchester between 31 January and 8 February 2005.

The Appellants were represented by Mr Michael Curtis and Miss Rebecca Taylor of counsel, instructed by Robert Campbell & Associates, solicitors.

The Respondents were represented by Mr Simon Burrows of counsel, instructed by Hill Dickinson, solicitors.

The tribunal heard oral evidence from:-

Mr David Whyte
Ms Pamela Jean Smith

(both attending by witness summonses issued by the Appellants)

For the Respondents –

Ms Julie Hunt
Mr David O'Connor
Mr Peter Cresswell
Mrs Jeanette Oatway
Mrs Linda Sinnott
Mrs Brenda Jenkinson
Mrs Judith Glassbrook
Mrs Janice Lamb

For the Appellants -

Dr Madhu Bhatnagar
Mr Rajindra Kumar Bhatnagar
Dr Jogindar Singh Randhawa
Mr Thomas Eyres

In addition there was a considerable quantity of written material before the tribunal which was considered, including witness statements which were not in issue.

UNANIMOUS DECISION

The appeal is allowed. The Notice to Cancel Registration as a residential care home by Warrington Borough Council dated 15 February 2002 shall have no effect.

1. BACKGROUND

1.1 Park Manor Nursing Home (the home) has been registered as a residential care home and a nursing home, in Warrington since 1990. It was formerly known as The Old Warps, but changed its name shortly after registration. Because it has been dual registered, two registration authorities have been involved with the home, North Cheshire Health Authority (NCHA) regulating the nursing residents (patients) and Warrington Borough Council Social Services Department (WBC) regulating the care residents (residents). Both of those roles were subsumed by the National Care Standards Commission (NCSC), which body has itself been subsumed by the Commission for Social Care Inspection (CSCI), who is the Respondent in this appeal.

1.2 The home has been owned since 1990 by a partnership between Dr Madhu Bhatnagar, who practices as a GP, Mr Rajindra Kumar Bhatnagar, a consultant Ear, Nose and Throat surgeon , and Dr Jogindar Singh Randhawa, who also practices as a GP, all in Warrington (the proprietors). Dr Bhatnagar was the person registered in respect of the home. Dr Bhatnagar was the most involved of the proprietors in the day to day running of the home.

1.3 There have been three earlier appeals heard by the Registered Homes Tribunal, which concluded its hearings on 10 March 2004. Those decisions are recorded by the RHT at decision 457. That tribunal was constituted of the same members who constitute this tribunal, and it was the expressed wish of the parties, their counsel and the President of the Care Standards Tribunal that the same tribunal should sit on this final appeal.

1.4 The earlier appeals were in relation to:

(i) A notice of cancellation of registration by NCHA dated 10 May 2001 under s 31 Registered Homes Act 1984 (the Act) in respect of Part II patients.

(ii) An emergency closure order dated 15 January 2002 made by a magistrate under s 30 of the Act, in respect of the Part II patients.

(iii) A further s 31 notice issued by NCHA following the events giving rise to the emergency closure, to support that emergency closure of it not being upheld on appeal, again in respect of PartII patients.

(iv) A further notice under s 31 of the Act by WBC in respect of the Part 1 residents.

The appeals under (i) and (ii) were allowed by the RHT. It was conceded by counsel for the Respondents that (iii) was the "ordinary route" closure by NCHA riding on the s 30 Order. It relied on the same evidence as appeal (ii) and was on even narrower grounds. It was right to withdraw the opposition to that appeal.

1.5 It therefore falls to this tribunal to hear this final appeal (iv). See 2.0 below for reasons.

1.6 There is no dispute that the level of care being provided at the home was the subject of criticism on the regular inspections made by the regulators, and frequent Requirements were made, which in the main were complied with by the proprietors and their nursing and care staff.

1.7 On 10 May 2000 NCHA issued a Notice of Intention to Cancel registration under s 31 of the Act in respect of the nursing registration. The proprietors lodged notice of appeal against that Notice, and therefore were able to continue to operate the home as a dual registered home pending the outcome of their appeal. Whilst proceeding to a scheduled hearing of their appeal in January 2002, the second appeal against emergency closure arose because of events surrounding the death of Mr C, an 82 year old patient at the home. He had been there for more than three years, and had a history of self neglect, alcohol abuse and was a heavy smoker. He had also suffered from a stroke some time before, and was bed bound and incontinent. He was seen regularly at the home by his son, who was satisfied with the care that his father received.

1.8 On the morning of 6 January 2002 Mr C was found by care staff to be very ill in his room. He was unable to communicate, was having difficulty breathing and his blood pressure was not recordable. The home summoned the emergency services and he was taken by paramedics to Warrington General Hospital, where he was seen in the A & E Department, and his generally very poor condition was noted. This included signs which were interpreted at the time as neglect. The A & E doctors were clearly alarmed by what they saw, and quite properly registered their concerns. The result of that was that a series of multi disciplinary meetings were convened involving NCHA, WBC, medical representatives, and also the police following the death of Mr C on 8 January 2002. A post mortem examination was carried out by a Home Office pathologist which showed that the cause of death was pneumonia and that there was evidence of clinical and pathological neglect not explained by the underlying pathology.

1.9 These events led to the meetings calling for nursing assessments of all of the residents in the home which were carried out by two RNs who were community nurses for NCHA.

1.10 On the information obtained from those assessments NCHA unilaterally applied for an emergency cancellation from a magistrate on 15 January 2002, and obtained the Order on an ex parte application. WBC continued to monitor the situation, but took no immediate enforcement action.

1.11 The two appeals concluding on 10 March 2004 were long contested hearings. The tribunal excluded the evidence of the assessing nurses in written form because they were not satisfied that it had been obtained with the proper consent of the patients who were being examined. The nurses themselves were not prepared to give oral evidence having been warned of the danger of incriminating themselves, and having taken advice on the point. Counsel for the Respondents therefore withdrew the Respondents' objections to the Emergency Closure of the home. The appeal continued against the s 31 Cancellation Notice. The tribunal allowed the appeal.

2. THE LAW

The Registered Homes Act 1984 (the Act) provides –

Section 10. The registration authority may cancel registration in respect of a residential care home –

(a) on any ground which would entitle them to refuse an application for his registration in respect of it.

Section 9 (1) The registration authority may refuse to register an application for registration in respect of a residential care home if they are satisfied –

(a) that he or any person concerned or intended to be concerned in carrying on the home is not a fit person to be concerned in carrying on a residential care home;

(b) that for reasons connected with their situation, construction, state of repair, accommodation, staffing, or equipment, the premises used or intended to be used for the purposes of the home, or any other premises used or intended to be used in connection with it, are not fit to be used; or

(c) that the way in which it is intended to carry on the home is such as not to provide services or facilities reasonably required

Section 12 (4) …registration authority shall give to any person registered in respect of a residential care home notice of a proposal –

(a) to cancel the registration

(5) A notice under this section shall give the registration authority's reasons for their proposal.

Section 13 (1) A notice under section 12 above shall state that within 14 days of service of the notice any person on whom it is served may in writing require the registration authority to give him an opportunity to make representations to them concerning the matter.

(2) Where a notice has been served under section 12 above, the registration authority shall not determine the matter until either –

(a) any person on whom the notice was served has made representations concerning the matter.

(5)Representations may be made …either in writing or orally.

Section 14 (1) If the registration authority decide to adopt the proposal, they shall serve notice in writing of their decision on any person on whom they were required to serve notice of their proposal

(2) A notice under this section shall be accompanied by a notice explaining the right of appeal conferred by section 15 below.

Section 15 (1) An appeal against –

(a) a decision of a registration authority

shall lie to a Registered Homes Tribunal

The chronology of events in this appeal bridges the transfer of function between the Registered Homes Tribunal and the Care Standards Tribunal. WBC issued its Notice of Proposal to cancel registration on 15 February 2002. Part II of the Care Standards Act 2000, and specifically the right to appeal under section 21, commenced on 1 April 2002. The representations hearing in respect of the WBC Notice of Proposal was conducted on 21 July 2003, and the (undated) notice informing the appellants of the decision from that hearing informed of a right of appeal to this tribunal.

The Notice of Proposal dated 15 February 2002 was issued under the then current Registered Homes Act procedure. By the time that the representations hearing took place on 21 July 2003, the appropriate regulatory body was the NCSC, and the Appellant was correctly guided to make any appeal to the Care Standards Tribunal.

3. PRELINARY MATTERS

3.1 Counsel for the Respondents made an application at the commencement of the hearing that the tribunal should consider the evidence of the nursing assessments obtained by the community nurses Galloway and Edwards without the informed consent of the residents. Although this evidence had been excluded by the RHT, it should be admitted to this hearing because (1) it was indicative of poor management in the home, and (2) it was indirectly relevant because of the hostile animus to the proprietors being alleged by the Appellants.

3.2 The application was opposed by counsel for the Appellants.

3.3 After adjourning to consider the application the tribunal decided that the nursing evidence was not relevant to the present appeal. The bona fides of the regulator were not dependent on that evidence and not a matter of relevance to the tribunal. We consider that our fact gathering should properly be restricted to issues concerning the Part I residents and that part of the registration. Nursing responsibility for the Part I residents was not the responsibility of the Appellants.

4. THE PRESENT APPEAL

4.1 There is a long and complicated background to the present appeal. It is common ground that the appellants enjoyed a better and more constructive relationship with the regulators/inspectors from WBC to that which they experienced with NCHA. A summary of the main events in the year before WBC issued their Notice of Intention to Cancel on 15 February 2002 is as follows

4.2 An announced inspection was conducted on 19 September 2000, which included a pharmacist consultant. Generally the report noted that with regard to the standards, that adequate arrangements were being made for recording, safekeeping, handling and disposing of drugs. Requirements were made to

Improve the storage and security by keeping internal, external and medicines for return, separately

Improve records of receipt, administration and disposal of medicines

4.3 On 15 December 2000 there was a joint unannounced inspection to investigate an anonymous complaint that alleged that a resident had been assaulted by a member of staff. The report of the visit dated 5 January 2001 perplexingly makes no reference to the complaint being investigated, but notes that commodes were in a poor state and three sluices were heavily stained with rust. The regulators made Requirements that

The home replace discoloured commode pots

Clean the upstairs sluice

Ensure that used commodes are emptied and placed in the sluice for a hot wash

To ensure satisfactory levels of cleanliness at all times

4.4 An unannounced follow up inspection was conducted on 5 January 2001 by NCHA and a pharmacist consultant. The main issues were documentation and recording.

4.5 WBC served an Enforcement Notice on 12 February 2001, specifying the following shortcomings:

Mr Q injured on 24 December 2000, and the home failed to notify the Inspection Unit until 31 December 2000, when asked to do so. The police were not informed.

An allegation that a member of staff had abused at least one resident (unidentified). You were informed of the allegation but did not inform the Inspection Unit or the police.

On an inspection on 4 October 1999 the medicine trolley was left unlocked for a period, and blister packs of tablets were left out in the Clinic Room.

The Community Services Pharmacist was informed that a resident (unidentified) was given his night time medication at tea time, to take at the time he wished to. No written assessment of his ability to self medicate.

Medicines had been re-dispensed/decanted by staff, therefore not administered directly. Once decanted they were not kept securely, but left in the resident's (not identified) bedroom.

WBC inspection on 3 August 2000 it was observed that medicines in two paper bags were left in the Medicines Room (sic – Clinic Room?). On the worktop were three bottles of Temazepam, one Butabarbitone, two Trimethoprim. Dates on the bottles indicated that none had been given on a regular basis. One resident was keeping his medication in an unlocked drawer in his unlocked bedroom. Reconciliations for sleeping tablets did not tally.

Joint inspection 15 November 2000. Records of returned medicines were inadequate and sporadic. Running totals of hypnotics were not carried over from the previous month.

WBC inspection 13 December 2000. Medications prescribed for some residents were being used for others as "homely remedies". Disposal records were incomplete. Matron was unable to find the records of medication for previous month.

Inspection by NCHA on 5 January 2001, which made the following Requirements:

1. Make adequate and suitable arrangements for safekeeping medicines.

2. Provide evidence of formal assessment and review of residents who self- administer.

3. All medicines must be administered directly from the container.

4. MAR sheets and Disposal Records must be fully and accurately completed.

5. Medicines to be administered only as prescribed.

6. Medicines held must be accurately reflected in records.

7. Medicine must only be administered to those for whom it was prescribed.

8. Retain all records for three years.

4.6 Unannounced inspection by WBC 1 March 2001. The inspectors, O'Connor and Cresswell, noted good practice in that residents spoke favourably on the quality of the catering, and they also noted that the home continued to show evidence of a flexible response to residents' individuality, preferences and wishes and the promotion of choice. They raised Requirements

1. To have emergency lighting tests every month.

2. To clean the extractor fan vent in upstairs sluice.

3. Cease use of communal soap and razors.

4. Room 20, thoroughly clean the walls, replace the carpet and repair small chest of drawers.

5. Affix the headboard in Room 10 and in all other rooms where they are loose.

6. Fasten the headboard in Room 25 to the correct end of the bed.

7. Repair the alarm call point in Room 14.

8. A requirement concerning Room 9 (which was a nursing bed not the subject of this appeal).

9. To make safe exposed pin nails in vinyl flooring of upstairs bathroom.

10. Clean medi-bath.

11. Provide appropriate non-slip and non-trip rug in Room 1.

12. A requirement concerning Room 3 (which was a nursing bed).

13. In bathroom 5 to replace missing ceiling tile, clean bath, dispose of dirty toilet brush and holder, dispose of stained commode frame, replace stained floor covering.

14. Maintain accurate daily register of residents.

15. Record names of staff taking part in fire practices.

16. Ensure that staff transport residents safely in wheelchairs.

In addition. It was noted that there were still outstanding Requirements from the previous inspection visit.

1. To request an assessment by the Continence Advisor and to effectively use the advice given.

2. To ensure satisfactory arrangements for safe keeping of medicines (a GTN spray and Aveeno cream – a non prescription preparation of colloidal oatmeal and an emollient base).

3. To revise the direction to staff and the accompanying care plan to ensure a more appropriate response to the resident's varying circumstances, providing flexibility whilst ensuring consistency (that is verbatim what was written in the report, and is incomprehensible to the tribunal).

4. To ensure that the Registration Authority is informed within 24 hours of their occurrence, of all notifiable occurrences.

5. To repair or replace a loose headboard in Room 26.

6. To provide a hold-open device on bedroom doors of residents who want their doors to be left open.

4.7 The inspectors O'Connor and Cresswell wrote to the home on 18 April 2001, following a follow-up unannounced inspection on 3 April 2001. Many of the Requirements had been met in whole or part. A small number remained outstanding, and concerns were expressed and Requirements raised in respect of medication. They said in their letter that the registration authority was currently seeking legal advice with respect to the need for keeping medicine locked away or on the person of a resident considered suitable to self administer his medication.

4.8 There was produced in evidence a document (484) which purported to be a draft letter from David Whyte, the Assistant Director of WBC Social Services Department, apparently addressed to the proprietors, which was described as having been written after a meeting which took place on 5 March 2001, and was between members of the registration staff and the proprietors. No minute has been produced of that meeting, and no evidence has been produced of the actual letter sent, and its receipt is denied by the Appellants. In the document Mr Whyte says that "we may have grounds for canellation of your registration…it would seem appropriate to delay making a final decision…propose to review the position in the first week of June 2001". It has not been established whether that letter was ever sent.

4.9 Further unannounced inspections were carried out by WBC on 15 May and 6 June 2001. Various points of good practice were noted. Fresh requirements were raised in respect of odour control, recording and safekeeping of residents' money and valuables, appropriate use of cot sides, to repair/replace a damaged bath (it was noted that a walk in shower had been ordered), and to maintain satisfactory odour control in a corridor.

4.10 A meeting was convened at the Inspection Unit on 11 July 2001 at which the proprietors attended, and Mr Whyte, Ms Hunt and Mr O'Connor. The stated purpose was to review progress since the meeting on 5 March 2001. The Respondents undertook to try and find the minutes of that meeting, but have failed to do so. It was stated that the meeting acknowledged improvements, and that the Inspection Unit would define what standards were not acceptable, and to inform the proprietors of WBC's proposals regarding the home's registration, and to explain how monitoring would continue, to discuss the management of the home, and to seek improvements in:-

Medication issue

Risk assessments completed

Premises/environment; requirements met with one exception

The overview was that the proprietors have made efforts, but have been reactive rather than proactive. Unacceptable standards were the proposed use of "linoleum" in a bedroom, and Mr U's finance records. The Inspection Unit were awaiting the application of Michael Cocker as manager of the residential home. They would meet again in October 2001.

4.11 Following that meeting Mr Whyte wrote to the proprietors on 16 August 2001, and said, "we do not presently see a case for the Council as registration authority to take steps to cancel your registration, but do still consider a need for the Authority to monitor standards at the home more closely than at the mandatory interval of twice yearly inspections…Overall…the Registration and Inspection Unit staff and myself would like to recognise your willingness in working with us to bring this matter to a positive conclusion ultimately for the benefit of the residents."

4.12 A further unannounced inspection took place on 29 August 2001. There were no unmet Requirements from previous inspections. New Requirements were raised on manual handling of residents and staff training in that subject.

4.13 The final unannounced inspection took place on 12 December 2001. Requirements were raised to:-

Reduce hot water temperature

Repair flex (in a nursing room not the subject of this appeal)

Repaint bare plaster in Room 1

Ensure that medi bath adequately cleaned

Repair door handle to en-suite to Room 18

Ensure fire exits are free of obstruction

Lock up cleaning products

Three unspecific (in terms of identity of resident or room) requirements concerning cot rails and bumpers

Ensure the privacy/dignity of residents at all times

There were no unmet Requirements from previous inspections.

5. REASONS FOR THE DECISION

5.1 The very clear picture that emerged from the evidence presented to the tribunal of what was happening at the home during 2001 was that 28 residents were receiving a standard of care which was meeting their needs. A number of the residents were presenting needs which were different and probably more demanding than that which is normally met in a registered home. All appeared to be happy with the standard of care which they were receiving, and their families seemed to be satisfied also.

5.2 The history of Mr C (who was a patient) illustrates that fact clearly. Expert medical opinion before the RHT was that his life expectancy when he entered the home was 18 months, and he in fact survived for more than three years. He and his son were happy with the care which he received at the home.

5.3 Mr Whyte, Assistant Director of Social Services at WBC confirmed during his oral evidence that the opinion expressed on 16 August 2001 was the situation at 11 July 2001, that there was no evidence to justify cancellation of registration. He also confirmed that at the meeting on 19 December 2001 it was WBC's view that the home was continuing to function (at an only acceptable level). His view was that he was anxious that an only acceptable level of functioning caused concern about future capacity to function. However, from then until 14 January 2002 there was no regulatory action, and no letters of warning.

5.4 Putting the matter another way, Mr Whyte confirmed to the Appellants by letter on 16 August 2001 that the Respondents did not presently see a case for the Council as registration authority to take steps to cancel the home's registration. They would continue to monitor standards and review the situation. Effectively, this means that the Respondents have set themselves the task of demonstrating that there was such a decline in standards from August 2001, that cancellation of registration was necessary by 15 February 2002. The only significant event which occurred in the intervening period was the death of Mr C, which at the time was a cause of great concern to the regulators, but which was misunderstood because they did not have a complete understanding of Mr C, his condition and the circumstances surrounding his death.

5.5 There is an abundance of evidence that the standards in the home were variable and not to the highest standards which might be looked for. But there is also evidence that the Appellants were willing and able to improve when asked or directed to, and several Respondent witnesses said that they were keen to co-operate with the inspectors. What is clear is that the home was not failing. In fact the summary of events at 4.0 would seem to indicate a pattern of improvement rather than a failing home.

5.6 . Many of the observations were reported by Mrs Sinnott. The Tribunal did not find her to be a reliable or credible witness. Her observations were recorded contemporaneously in a "note pad" that she used in her normal duties with a formal note prepared "two or three days later". The note pad was destroyed by Mrs Sinnott "two or three years later", knowing that she might be called to the Tribunal to give evidence, and long after the Respondent knew that the Appellants disputed Mrs Sinnott's observations. She was unaware of any policy of her employer regarding the preservation of contemporaneous records that could have assisted any enquiry. It was not clear from any evidence brought to the Tribunal why it was necessary for Mrs Sinnott and her colleague (both Care Assistants) to work at Park Manor at that time, when Part 1 Registration had not been cancelled.

5.7 Of the grounds relied on by the Respondents, we make the following findings

5.7.1 Item 7 – Some clients were being manually lifted by staff, without the use of aids to moving and handling, thereby residents and staff were being put at risk. There has been no specific evidence of who needed the use of a hoist.

5.7.2 Item 9 – Staff were not following assessments, thus causing anxiety, distress and/or pain to some clients. This appears to be an error. No specific evidence has been adduced in respect of this allegation. The Tribunal assume that the Respondents were wishing to rely on Item 8 – There was inadequate moving and handling assessment in the case of three clients. It was alleged that Mrs G and Mr H (N) were injured by the use of the hoist in the home. There has been no evidence produced to us of where the alleged injuries occurred, when, or what the injuries were. If they were injured, they could have been injured in the home to which they were moved. There was no proper documentation or investigation of the injuries alleged. Such lax procedures by the Respondents were potentially in conflict with elder abuse protocols. We were not satisfied that what was alleged had occurred at the home.

5.7.3 Item 12 – During the Inspection undertaken on 29^th August 2001 a requirement was made, to ensure that residents are transferred safely at all times after a member of staff was observed to use a "drag lift" method. Items 7 to 11 (inclusive) above indicate that this requirement has not been met. This requirement was not raised during the inspection, but referred to later in a typed report when it was not possible to identify who was lifting or lifted. There is a lot of written evidence, which has not been challenged, that manual lifting techniques were given in training, and that drag lifting was not permitted. We are not satisfied that this complaint has been made out.

5.7.4 Item 13 – Chairs were in use, placed against beds, because the home did not have an adequate supply of cot sides. This was never an issue arising from inspection visits. There was an adequate supply of cot sides in the home. The observation was made on the night of 15/16 January 2002, which was wholly untypical following the emergency closure of the Part II registration. The observation was made by Mrs Sinnott, who was not wholly convincing in her evidence about a number of matters. The tribunal was not satisfied that what she described had actually occurred.

5.7.5 Item 14 – was withdrawn at the end of the hearing.

5.7.6 Item 15 – Clients were sharing commodes. The allegation was made during the hearing that there were only 9 commodes which were not sufficient. This complaint was not made out. No evidence was called to demonstrate how many residents had a need for this facility. The number of commodes alone is meaningless in this context.

5.7.7 Item 16 – There was no spare mattress to exchange, when one was wet due to a resident's incontinence. There is in fact no regulatory requirement for there to be spare mattresses. In any event there was no evidence of any one from the Respondents enquiring as to how many mattresses there were, and where they were stored.

5.7.8 Item 17 – There were no night drainage bags for use with a catheter. This complaint relied on the evidence of Mrs Sinnott on the night of 15/16 January 2002. Her evidence was that she did not look in the wardrobe. Our experience is that this sort of item is often kept in the resident's wardrobe. The absence of this item has never been discovered in any of the many inspections of the home.

5.7.9 Item 18 – There was an absence of adequate and readily available disposable gloves and wipes. Again, based on the evidence of Mrs Sinnott on the night of 15/16 January 2002. There was clearly great tension in the home that night, not least between the Appellants' employees and the Respondents' employees. This witness'reliability has already been commented on. She is not supported by Sister Carroll who was on duty with her. A shortage of these items has never been found on inspection, and the Appellants insist there was a plentiful supply in the store, and have produced items to the tribunal which they say have remained in the store since the home closed, and were brought straight to the tribunal from there.

5.7.10 Item 19 – There were no towels or face cloths in clients' rooms. Again, based on Mrs Sinnott's evidence. This has never been noted before, is strongly contested by the Appellants, and is not supported by any other witness. Mrs Sinnott does not claim to have checked every room. Because of the way the matter has been raised it was not possible at the time for the Appellants to look into the matter. We are not satisfied that this complaint is made out.

5.7.11 Item 20 – There were no sanitary bins. Again based on the evidence of Mrs Sinnott. It seems incredible that this could be missed in all the inspections which have taken place. Alternatively, it seems incredible that they should have been removed after emergency closure. The Appellants maintain that there were bins in every room. We are not satisfied that the complaint is made out.

5.7.12 Item 21 – There was no soap in dispensers. Again based on Mrs Sinnott's evidence. Her evidence was opposed by Mr Eyres, the Appellants' handyman, who said that he topped up the soap dispensers every Friday and Monday. He was a straightforward, consistent and reliable witness. Where there is conflict between what he says and what Mrs Sinnott says, we have weighed the two accounts given to us, and we prefer his account.

5.7.13 Item 22 – In the course of the nursing assessments some of the residents' beds were moved and the area underneath found to be unclean. A Warrington Social Services Department worker, in the home on 16^th January 2002, found the area around where a resident would sit all day to be very dirty with rotten food. During a nursing assessment a resident's sheets and pillowcases were noted as dirty. This allegation is very general. Some of it appears to emanate from the night of 15/16 January 2002. Some from several years ago. It was certainly not something that was highlighted in recent inspection reports. There is no complaint of this sort of general lack of cleanliness going back to December 2000. We are not satisfied that the complaint is made out.

5.7.14 Item 23 – On 8^th February 2002, a Social Worker employed by Warrington Borough Council confirmed that, when she assisted a nursing care client to move out of the home, she and a colleague found soiled clothing and bedding in his wardrobe. This allegation concerns Mr H, who was a nursing patient, and is therefore not concerned with Part I registration. This allegation was in any event raised in a manner that it could not be investigated at the time.

5.7.15 Item 24 – After a number of specific requirements were made, relating to unsatisfactory standards of cleanliness and hygiene at the home, requirements were made during Inspections carried out on 15^th December 2000 and 30^th March 2001 to maintain satisfactory standards. The items cited in 15 to 23 (inclusive) above indicate that these requirements have not been met. As all of the above items have not been proved, there is no substance to this complaint.

5.7.16 Item 34 – On the night of 15^th January 2002 a member of Warrington Social Services Department staff observed a member of Park Manor's staff leave the medicine cabinet in the lounge with the keys in the lock whilst she went to the office. There were residents in the lounge at the time. This alleged incident occurred on the night of the emergency closure, when the Respondents had provided staff to run the home. There was considerable confusion and upset about the situation, and there appears to have been real confusion as to who was responsible and for what. It could be reasonably argued that as the Respondents had provided staff (both nursing and care) to run the home, that it was either their responsibility, or as their staff was observing the medicine cabinet, there was no risk.

5.7.17 Item 35 – On the 8^th February 2002, a Social Worker employed by Warrington Borough Council confirmed that a nursing care client's family told her that on several occasions, they had found the client's tablets on the floor of his room and complained to staff about this. The Social Worker stated that it appeared the the client's tablets were left for him to take independently, although he had poor dexterity. This apparently relates to Mr H. No direct evidence has been given on what was alleged to have happened, and the complaint is not made out.

5.7.18 Item 36 – There was evidence that one client had not received the medication prescribed for him by his doctor. This was again possibly Mr H. The medication described was to help him sleep at night. His prescription was PRN, and the evidence was that he was sleeping, so did not need to take it. The complaint is not made out.

5.7.19 Item 37 – During Inspections undertaken on 19^th September 2000, 1^st March 2001, 3^rd April 2001, requirements have been made regarding the safekeeping, handling and administration of medicines. Items 34 to 36 are evidence of failure to meet these requirements. There is no dispute that these requirements, concerning management of residents' medication, were met by about June 2001, and they can hardly be relied on in February 2002 as a ground for cancellation, when on 16 August 2001 Mr Whyte is on record saying that he can see no case to cancel registration.

5.7.20 Items 38 and 39 – [38]On 29^th January2002, a Social Worker employed by Warrington Borough Council telephoned the Manager of Park Manor, to arrange to collect pension books, accounts and outstanding monies in respect of two residential care clients. The Manager informed the Social Worker that the home's handyman had the pension books and she would arrange for them to be delivered to a local authority establishment that day. This did not occur. The following day, the Social Worker obtained the handyman's telephone number from the home and arranged for him to deliver the books. He had no receipts for monies paid from the residents' benefits, as cashed and paid in for their accommodation fees. The handyman also said that he had "about £200" of one of the resident's money, at home. The Registered Manager of the home told an Inspector employed by Warrington Borough Council, on the 6^th February 2002, that she knew nothing of this arrangement. [39] Requirements were made during Inspections undertaken on 15^th May and 6^th June 2001, regarding the safekeeping of residents' monies and accompanying records. Item 38 above is evidence of failure to meet theses requirements. The arrangement by Mr Eyres to help two male residents with their financial affairs was a private one between the individuals concerned. It was not known to the Appellants, nor has it been alleged that it was. If Dr Bhatnagar had been aware, she says she would not have allowed the arrangement to continue, and we accept that that is the case. As has already been stated, the tribunal were impressed by Mr Eyres as a witness. We are satisfied that he behaved perfectly properly and honourably in relation to the finances of his two friends, and did not suspect that what he was doing might be considered dangerous in some circumstances. The matter only came to light after the de facto closure of the home.

5.7.21 Item 40 – There were insufficient numbers of commodes. Not made out, see item 15.

5.7.22 Item 41 – The home only had one hoist. Staff did not move the hoist from room to room to facilitate its use where needed. Neither was a further hoist provided. This overlaps item 7. On the evidence we have seen, there did not appear to be a lifting belt or banana board, which we would have expected to be available. It is apparent that when Karen Burroughs provided training that some members of staff had not previously had any training, but we do not know who they were, how long they had been at the home, and why they had not had any training. Dr Bhatnagar said that matron provided training for new members of staff until the regular annual training came round. Ultimately, the ground is not made out because the Respondents have failed to establish how many residents needed help, and what that help was. The number of hoists required is entirely dependent on those unknown factors.

5.7.23 Items 42 and 43 – [42] There were insufficient incontinence aids in use in the home and some of those that were there were used inappropriately in that they did not relate to the the individual needs of the residents, or were not suitable to meet those needs. [43] There was inadequate pressure relieving equipment in the home, some of that which was in use was used inappropriately or was used in such a way as to limit its effectiveneness, or even increase the risk of pressure sores. Item 42 was abandoned because it relied on the excluded nursing evidence. No evidence has been produced to support the contention being made in item 43. We have looked, and can see no basis for the allegation.

5.8 For all of the reasons given above the appeal succeeds.

Signed

R A Coia

Chairman

Date: 30 March 2005