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Cite as: [2005] EWCST 492(EA)

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Partington v Commission for Social Care Inspection [2005] EWCST 492(EA) (3 January 2006)

Gary Partington

v

Commission for Social Care Inspection

[2005] 0492.EA

-BEFORE-

Mr Laurence J Bennett (Chairman)

Ms Bridget Graham

Mr John Hutchinson

DECISION

At Cunard Buildings, Liverpool on:

2, 5, 6, 7, 14, 15 and 19 December 2005

The Appeal

Mr Gary Partington appeals under Section 21 of the Care Standards Act 2000 (the Act) against the decision of the Commission for Social Care Inspection (the Commission) to cancel his registration as Manager of Barton Park Care Home (Barton Park), 15-17 Oxford Road, Southport, Merseyside PR8 2JR on the ground contained in Section 14(1)(c) of the Act; that the establishment has been carried on otherwise than in accordance with the relevant requirements.

Notice of Cancellation of Registration dated 6 April 2005 given to Mr Partington by the Commission states that he is in breach of Regulations 9(2)(b), 13(1)(b) and (2), 14(1)(a)(b)(c)(d), 14(2)(a)(b), 15(1)(2)(b), 18(2)(3)(4) and Schedule 4(7) of the Care Home Regulations 2001 (the Regulations) for reasons specified in the notice.

Some of the allegations upon which the Commission relied were withdrawn. A re-amended Schedule of Issues agreed by the parties sets out in short form the matters upon which the Commission relied at the conclusion of the hearing. References are to the Regulations.

BREACH OF REGULATION 9 (2) (B) "a person is not fit to manage a care home unless (b) having regarding to the size of the care home, the statement of purpose, and the number and needs of the service users – (i) he has the qualifications, skills and experience necessary for managing the care home".

	In support of this CSCI have relied on: -
9	Lack of skill, evidenced by poor responses to questions asked at interview of 3 December 2004	LIVE
10	Specifically Mr Partington was unable to demonstrate he had kept himself professionally updated with regard to the care of people requiring terminal care	LIVE
11	Mr Partington admitted to not having attended any courses or partaking in any training.	LIVE
12	Mr Partington failed to demonstrate that he had the necessary qualifications and skills required for managing the care of service users who suffer from dementia, in particular this was evidenced by his responses to questions asked at the interview on 3 December	LIVE
13	Mr Partington was unable to demonstrate that he had kept himself professionally updated with regard to care of people with dementia and had not attended any courses or partaken in any training.	LIVE

BREACH OF REGULATION 13 (1) (B) AND (2) "Further requirements into health and welfare,
(1) the registered person shall make arrangements for service users
(b) to receive where necessary, treatment, advice and other services for many health care professional.
2. The registered person shall make arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines received into the care home."

	In support of CSCI rely on the following: -
13A	Failure to provide specialist support for JS and TA namely McMillan Nurses or similar	LIVE
15	Unable to demonstrate that he was aware of how to obtain emergency supplies of the drug.	LIVE
16	Failed to take appropriate action regarding the non-administration of insulin to JS on 21 August 2004 and 2 September 2004. When questioned Mr Partington identified that Nurse JG would have administered this, and that although not signed for on the MAR chart, the insulin would have been given. JS was hospitalised on 2 September as a result of raised blood sugar, thus requiring an insulin drip.	LIVE
	Failed to complete accurate returns of drugs to pharmacy, in particular:
18	Promazine for BD, WR, EB and EM. No audit trail for 4,240mls (but now amended to 4488mls) New issues re Promazine P has accounted for the estimated amount of missing Promazine of 4,395mls for period Feb 03 – October 03. MAR sheets evidence say returns should have been made during 2004. P has not accounted for returns that should have been made during 2004 There are a number of inconsistencies and discrepancies between the MAR sheets in relation to the 4 service users referred to. CSCI maintain that evidence produced by P to evidence the returns of these drugs is false	LIVE LIVE LIVE LIVE
19	Oramorph – 21 vials unaccounted for in relation to JS from the 13 – 23 September 2004. New issue re Oramorph P has produced documentation which he purports evidences the returns of these drugs from July – September 2004. The documentation relied on by P is however dated 2.10.03 and not 2004. CSCI maintain that evidence produced by P to evidence the returns of these drugs is false	LIVE LIVE LIVE
21	(d) Trifluoperazine – 373 tablets unaccounted for in relation to JS from 24 July – 23 September 2004 New issue re Trifluoperazine P has produced documentation which he purports evidences the returns of these drugs from July – September 2004. The documentation relied on by P is however dated 2.10.03 and not 2004. CSCI maintain that evidence produced by P to evidence the returns of these drugs is false	LIVE LIVE
23	You failed to safely store medicine as evidenced by the inspection on the 4 November when medicines were found stored in an unsecured cupboard.	LIVE
27	You administered to service users as 'discretional medicine' Fletchers phosphate enemas without recording consent and why such treatment was necessary and/or desirable. There was no risk assessment recorded in relation to this procedure for example, the treatment was given to KQ on 5 and 6 November 2004.	LIVE

BREACH OF REGULATION 14 (1) (A) TO (D) AND 14 (2) (A) TO (B) – Assessment of Service users

	In support of these breaches CSCI rely on the failure to identified from pre-admission assessments how Barton Park can meet the care needs of service users clearly assessed as having mental needs such as:: -
29	MMc – assessment carried out on 24 July 2004 indicates no other care needs apart from history of depressive illness	LIVE
30	BD – pre admission assessment (not signed or dated) identifies clear needs around dementia with agitation and wandering. Admitted directly from hospital ward specialising in care for dementia;	LIVE
31	DH – assessed 15 September 2003 as confused with Alzheimer's and wandering.	LIVE
32	In all of above assessments (i.e. numbers 21 – 23) no indication how Barton Park can meet these needs. No record on assessment of any liaison with any person trained in aspects of mental health care. No independent assessment by person trained in mental health for the purposes of admission to the home. No indication of assessment being carried out with a representative of the service users. No written confirmation to the service users or representatives of how the home is suitable to admit and meet the needs of service users. No evidence of these or other service users' care plans being kept under review or revised when necessary.	LIVE

BREACH OF REGULATION 15 (1) AND (2) (B). Breach of service users plans in support CSCI rely on the following:-

33	JS admitted to home with terminal condition. Care plans failed to demonstrate any audit or benchmark of the care given to either of these service users and no care pathway had been developed. This was further evidenced by the daily evaluations of care which were reported as 'care as plan'. There was no plan for either service user reflecting their terminal condition or even the common symptoms which the dying patient may experience. There was no plan or record of vigil care to meet their needs during hours preceding their death.	LIVE
36	You failed to complete adequate care plan documentation for EC – assessed as imagining people in her room, shouting and attention seeking. Care plan addresses none of these issues.	LIVE
37	You failed to complete adequate care plan documentation for PAS – service user who experiences periods of agitation. Again, no planned interventions in the care plan for staff to refer to.	LIVE
38	You performed per rectum examinations on service users, for example, KQ and AH on 11 February 2004 and 30 December 2003. Care plan documentation failed to identify a clinical reason or direction for this procedure or that informed consent had been given.	LIVE

BREACH OF REGULATION 17 (2) (3) (4) SCHEDULE 4 (7). Breaches in respect of maintenance of records within the home

	CSCI rely on in support: -
39	Failure to maintain in the home and available for inspection copies of the homes duty rosters from April 2001 to November 2004	LIVE

The Appellant, Mr Partington was represented by Mr Roger McCarthy QC, instructed by Messrs Platt Halpern Solicitors of Manchester. His witnesses who provided oral evidence at the hearing were Sister JG, Ms CM, Mr DD, Miss NP and Ms Cath Fairhurst.

The Commission was represented by Mr Peter Anderson of Counsel, instructed by Messrs Hill Dickinson & Co Solicitors of Liverpool. Its witnesses who provided oral evidence at the hearing were Mr Michael Perry, Mr Simon Hill and Nurse Esther Kirby.

The parties' prepared consolidated bundles extending to 5,400 pages which included material arising from directions made prior to the hearing. Additional statements were admitted during the hearing.

Preliminary

Restricted Reporting Order

On 30 July 2005 upon hearing representatives of both parties in telephone conference, the President of the Tribunal His Honour Judge David Pearl made a restricted reporting order under Paragraph 18(1) of the Protection of Children & Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Tribunal Regulations). "There be 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 the Applicant or 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."

Mr McCarthy applied for the enlargement of that order in terms agreed with Mr Anderson and outlined the nature of the evidence, issues and allegations to be considered during the hearing. He mentioned potential consequences of the identification of relevant individuals.

We accepted that it was appropriate to continue and extend the reporting order in the terms agreed by the parties and ordered as follows:

There be 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 & Wales of any matter likely to lead members of the public to identify:

The Applicant

Any Vulnerable Adult

Any person who is resident in the Care Home at which the Applicant works

Any person who works at the Home

Any person who visits the Home

Any CSCI officer as a person who has dealt with, visited or inspected the Home

This Order continues in force until the conclusion of the hearing when the Tribunal will give further consideration to the need for continuation of an Order.

Exclusion of Evidence

Mr McCarthy applied under Paragraph 14(3)(a) of the Tribunal Regulations for exclusion of evidence in particular specific parts of the statements of Mr Michael Perry dated 3 November 2005 and Mr Simon Hill 1 November 2005. He submitted that the evidence he wished excluded was available prior to the Respondent's decision to cancel Mr Partington's registration but had not been specifically notified. He drew attention to the 'extended' period the Commission had to investigate matters and made submissions about the source of information contained within the statements. He suggested that insufficient weight had been placed on these matters or notice given to enable Mr Partington to properly respond. He suggested this gave rise to unfairness. The subject evidence related to drug records particularly Promazine, the involvement of MacMillan Nurses for service users and a curriculum vitae submitted by Mr Partington.

Mr Anderson submitted that part of the evidence sought to be excluded formed comments that could be made in the event by Counsel for the Respondent. He relied on four main points:

The hearing is a de novo hearing and is not a review of R's original decision, see Appiah-Anane v NCSC (2002) 0096NC.

There would be scant need for the power the tribunal has to amend the B4 if R is limited to the original cancellation case. Indeed any B4 that did more than exhibit the original cancellation notice would be unfair

It does not follow that evidence is unfair/unhelpful simply because it could have been raised earlier

The primary function of the legislation is the protection of service users. The tribunal's main concern should be to resolve the case on the facts not on a view of the facts restricted by an error made previously by R.

When addressing these points he stated that previous information had been found to be in error and in consequence it was necessary to consider matters such as the drug records afresh.

When considering the application we kept in mind that it was not appropriate to consider the quality of the evidence. It was open to the parties to make later submissions and in its determination of the appeal the Tribunal must weigh the evidence and consider the extent that it can contribute to its decision. Mr McCarthy's suggestion that it should be excluded at this stage is not accepted.

We find no authority for the view that the Respondent is prevented at the hearing of the appeal from relying upon 'post-cancellation' evidence and facts. We are not required to consider whether the Respondent made the correct decision at the date of the cancellation but must take into account the facts when reaching our own conclusion at the date of hearing. This seems accepted by the Appellant, illustrated by Mr McCarthy's submissions that we might take into account for instance the "smooth running" of Barton Park since the Respondent's notice.

Paragraph 14(3)(a) of the Tribunal Regulations contains the word 'unfair.' The word is not further defined. We have considered whether the Appellant has reasonably been able to prepare to meet the allegations made against him or whether because of inclusion of this evidence he is prejudiced or prevented from properly presenting his case. With that in mind we have considered whether this evidence is new or is such it would not be reasonably possible for him to have considered and responded. The parties accept that the underlying issues are not novel. The details may have been refined or augmented. We do not consider the Appellant would have been unaware of the nature of these issues and not have had opportunity to investigate and respond to them. Indeed the drug record issues arise from a response he provided and he has submitted some further evidence and comments upon each matter. We do not consider that inclusion of the evidence is unfair or that it would be unfair in all the circumstances to consider it. It was not obvious to us what further information he might have provided if the issues had been presented earlier in their current form.

In the light of our inclusion of these items it has not been necessary to separately consider whether parts of the statements are in effect submissions and should be disregarded.

At the conclusion of the Respondent's case Mr Anderson applied for the admission of a witness statement by Nurse Esther Kirby, Lead Cancer Nurse. He explained that further consideration has been given to this aspect of the Commission's case in the light of information provided in Mr Partington's fourth statement admitted during the hearing which refers to a relevant record. He proposed to call Nurse Kirby.

Mr McCarthy objected to the inclusion of Nurse Kirby's statement or oral evidence on the basis that it was unfair within Paragraph 14(3)(b) of the Tribunal Regulations. He submitted that although her evidence might be the 'best evidence,' that did not provide justification. As her statement was served immediately prior to that part of the hearing, the Appellant had not had time to prepare or react. This would inevitably be prejudicial.

Mr McCarthy suggested that the Commission had not followed fair procedure. The evidence was not submitted in accordance with directions. Having had the opportunity of considering the statement, Mr McCarthy stated that prejudice would arise from the mere fact of delay. The witness was produced more than nine months after the allegations were made, memory would inevitably be more difficult.

We noted that the issue itself was not novel. It formed part of the Commission's notice of cancellation and some evidence and submissions had been provided earlier during the hearing. The application was for the witness to attend in person which would give an opportunity for cross examination on behalf of the Appellant. We concluded that allowing this evidence to the extent it was in variance with directions made, would not be unfair such that it should be excluded under the Tribunal Regulations 14(3)(a) and (b).

Witness Summonses

During the hearing Mr McCarthy applied on behalf of Mr Partington for witness summonses under Paragraph 16(1) of the Tribunal Regulations against the following persons who had been expected to attend as witnesses but had not appeared.

Ms Cath Fairhurst, the Commission's Business Relations Manager.

Ms Elaine Halsall, Pharmacist

Mr Stan Partington, Pharmacy driver

He referred to their importance to the Appellant's case. Mr Anderson had no comments.

The Chairman granted the applications taking into account the relationship and relevance of each witness to the events and issues under consideration. Subsequently during the hearing following a request by Ms Halsall the Chairman set aside the witness summons relating to her.

The Law

Section 11 of the Act imposes an obligation upon "Any person who carries on or manages an establishment or agency" to be registered and contains provision for summary conviction in default.

Section 14(1) of the Act provides that: "The registration authority may at any time cancel the registration of a person in respect of an establishment or agency – (c) on the ground that the establishment or agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements. – (d) on any ground specified by regulations."

Section 14(3) of the Act defines relevant requirements as: "(a) any requirements or conditions by or under this Part; and (b) the requirements of any other enactment which appear to the registration authority to be relevant."

Section 21(1) provides that an appeal against a decision of the Registration Authority shall lie to the Tribunal.

Section 21(3) states that: "On an appeal against a decision of the registration authority the Tribunal may confirm the decision or direct that it shall not have effect."

Section 21(5) states that: "The Tribunal shall also have power on an appeal against a decision or order – (c) to direct that any such conditions as it thinks fit shall have effect in respect of the establishment or agency."

Paragraph 9 of the Regulations provides that: "(1) A person shall not manage a care home unless he is fit to do so. (2) A person is not fit to manage a care home unless:- (a) he is of integrity and good character."

Relevant paragraphs of the Regulations are set out at 3. above.

Parts of National Minimum Standards for Care Homes for Older People published by the Secretary of State under Section 23(1) of the Act are relevant to the issues.

Burden and Standard of Proof

The parties agreed the burden of proof in respect of the allegations is upon the Commission and that the standard is the civil standard "adjusted to a level that reflects the gravity and consequences of the allegations."

Mr McCarthy addressed the standard of proof which he stated should be at the "highest level of the civil standard of proof – it is an allegation of forgery and attempt to pervert the course of justice which such a highly implausible allegation, the difference between civil and criminal standard may be very slight." He cited H&R 1996 1 FLR80 and Re O and N; Re B (2003) UKHL 18, 2003 1FLR 1169.

Mr Anderson submitted that the standard of proof is as set out in Corville Brown & Marion Brown (High Ridge Children's Home) v NCSC [2002] 83.NC. "When assessing the probabilities the court will have in mind as a factor, to whatever extent it is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability...."The more the improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."

Our conclusions have been reached upon balance of probabilities taking into account the Authorities cited as have clearly been applied by the Care Standards Tribunal in Corville Brown & Marion Brown (High Ridge Children's Home) v NCSC [2002] 83.NC.

Facts

Mr Gary Partington is the Registered Manager of Barton Park. On 30 December 2004 the Commission served Notice of Proposal to Cancel his registration.

The grounds upon which the Commission served Notice largely arose from information and documents obtained during an unannounced inspection of the Home on 4 November 2004. This was planned by the Commission in conjunction with other agencies following an anonymous complaint taken by them to relate to the Home but stated against the Oxford Road Nursing Home now closed but which operated in the same road as Barton Park. Subsequently Mr Partington was interviewed by the Commission.

Mr Partington was not present on 4 November 2004 when Commission Inspectors including Mr Hill and Mr Perry arrived at the Home. He was at his doctor's surgery as he was unwell. When he arrived at the Home during the inspection, he was not invited to contribute to the inspection save for provision of a list of documents sought. He was excluded from his office.

The interview took place on 3 December 2004 in strict circumstances; questions had been devised with other agencies and were to a strict format. They were not circulated in advance to Mr Partington or his advisers and he was not given access to relevant documents prior to the interview. His solicitor prepared notes but he was not given access to a note taken by the Commission at the time.

Ms Fairhurst took the view that it was not appropriate to invoke Section 20 – Emergency Closure Procedures but to proceed by what she described as "slow route cancellation." Her concerns decreased as Police communicated lack of suspicious criminal activity. Meetings with other agencies took place under "Vulnerable Adults Procedures."

Mr Perry and Ms Fairhurst stated that the Commission's investigations had been carefully planned to avoid "contamination" of particularly any Police enquiry into events at the Home. There was considerable liaison to that end. Subsequently, investigations by other agencies including Police, PCT and Social Services have concluded without any known action against Barton Park or persons connected. As the original complaint was made after a Granada Television programme there has been an element of press interest.

Following written representations made on Mr Partington's behalf, the Commission decided on 7 April 2005 that allegations of breaches of Regulations 9(1), 9(2)(a), 12(1)(a) 18(1)(3)(a) and (b) were not upheld.

Besides its attendance in November 2004, the Commission has inspected Barton Park announced and unannounced on two occasions in 2002; one in 2003; two in 2004 and three up to July 2005 when the majority of standards were met at Level 3 and some at Level 2.

Relatives and friends of service users have written favourably about the Home and its care.

Regulation 9(2)(b)

The alleged breach arises from answers given by Mr Partington during the interview on 3 December 2004 about his curriculum vitae and continuing professional development. The Commission considers his answers misleading and that he has not attended courses or training for persons who require terminal care or dementia.

Mr Partington explained that his experience includes time at a hospice and training to develop his skills. He has previously completed self-study in care of the elderly and dementia. At the time of the hearing he was booked to attend training for dementia. He drew attention to the range of relevant courses and the need to prioritise the competing requirements upon professional development time.

Regulation 13(1)(b) and (2)

The Commission considers that service users Ms JS and Ms TA required specialist palliative nursing support when it became clear they were terminally ill. Evidence was given by Nurse Kirby, a Palliative Care Nurse (MacMillan Nurse) who visited the Home for Ms JS following referral by her GP but was advised she did not wish to be seen by her. Nurse Kirby did not consider this unusual and was content that she was in the care of a Registered General Nurse. She remembered meeting Mr Partington at the Home on the single occasion she visited and identified him at the hearing.

Mr Partington did not recall Nurse Kirby's visit which her service's records indicate took place on 2 August 2004. Her name was noted in Barton Park's visitors book without specifying she was a nurse. Mr Partington recalls a visit on 15 September 2004 by two people he assumed were "MacMillan Nurses." This visit was not recorded in the Palliative Care Service records nor in Barton Park's visitors book. Ms NP, Senior Carer, on duty that day recalled the two visitors whom she showed in to Mr Partington. She stated they introduced themselves as nurses and that she particularly recalled the event because it happened the day after she had been told of Ms JS's illness. She and Mr Partington described her as an independent and strong character who did not want her illness known. Nurse Kirby was unable to speculate as to whom these other visitors might be.

Mr Partington stated that he was aware of how to obtain emergency supplies of drugs and had experience of doing so. This was not contradicted on behalf of the Commission.

The medication administration record (MAR) sheets for Ms JS service user do not record administration of Insulin to her on 21 August and 2 September 2004. Sister JG gave evidence that she administered the Insulin but in error forgot to complete the record. She stated that Ms JS would not have allowed non-administration. She was a robust character and would not have had her lunch without it. She recounted that when Mr Partington noticed the error, she was given a verbal warning "for the first time in her career." Although no written record of this warning was made available, Mr Partington recalled that he gave her a verbal warning but did not find it necessary to give a warning to Nurse Hibbert, who had recorded administration of Ms JS's Insulin on her daily evaluation record sheet kept separately.

Both Sister JG and Mr Partington are of the opinion that Ms JS's raised blood sugar and hospitalisation on 2 September 2004 arose from a urinary infection and not omission of Insulin. They stated this is a common effect of an infection.

The major ground informing the Commission's decision to cancel Mr Partington's registration related to the drug records kept by the Home, particularly for drugs returned. Specific issues were identified regarding records of liquid Promazine, Oramorph and Trifluoperazine. Mr Simon Hill, Pharmacy Inspector with the Commission took part in the inspection of the Home on 4 November 2004 and has subsequently examined additional records made available. He found that volumes of Promazine were unaccounted for. His initial calculations disclosed to Mr Partington included a missing 4,395 ml Promazine, 21 vials Oramorph and 373 tablets of Trifluoperazine. Taking into account clarification of MAR sheet entries and additional records, including a blue book containing mid and end-cycle returns which has become loose and broken and may have missing pages, it was not possible to exactly calculate quantities unaccounted for. This depended upon pre-2002 records, quantities brought by service users on admission and unrecorded breakages and spillages.

Mr Hill stated that he believed he asked staff at the Home for all records during the 4 November 2004 inspection. He was given MAR sheets and he looked in other places in the office although not certain whether this included the third drawer on left-hand side of Mr Partington's desk in which Mr Partington said the additional records were kept.

Since initial notice was given Mr Partington supplied return sheets kept separately from the MAR sheets stated by him to be an efficient and convenient way of recording returns, showing collections by Mr Stan Partington on behalf of Moss Pharmacy of various drugs including a total of 4,395ml Promazine. These original sheets have since been lost.

During the hearing Mr Partington made a fourth statement which appended a copy of his diary for 15 September 2004 in which was written: "Dropped bottle of medicine – EB (Promazine)."

Evidence was given about the four service users prescribed liquid Promazine during the relevant period and an analysis of MAR sheets. Mr Partington stated it was given "as required" although some users required relatively regular administration. He was unable to explain the discrepancies but emphasised the veracity of the separate drug return sheets showing 4,395ml had been collected by pharmacies between 2 March 2003 and 10 March 2004. He explained an error on one of the sheets dated October 2003 rather than 2004. This sheet contained two separate returns which included Oramorph and Trifluoperazine. Mr Partington gave his reasons for a separate record kept in his desk for mid-cycle returns but not end-cycle returns which were recorded on MAR sheets. He pointed out that Moss Pharmacies MAR sheets did not have a place to record breakages.

Mr Hill stated that he would have expected all records to have been given to him on 4 November 2004. He said he asked for them but his attention was not drawn to additional records which he would have expected to have been handed over so that he had a complete picture. He recalled asking Mr Partington, who presented at the Home about an hour after the start of the inspection, obviously showing signs of a bad cold but no additional documents or records were produced. His subsequent audit taking into account additional information from Mr Partington did not account for the missing liquid Promazine. Pre-2002 returns recorded in the blue book would increase the discrepancy. Mr Hill explained the logic for starting his calculations from the date of an order for 500ml Promazine which indicated to him at that point the Home did not have stock. Any additional records that came to light showing disposal of liquid Promazine would only serve to increase the unexplained volumes as they would indicate an excess of returns over receipts.

Mr Partington accepts that the drug records and other necessary records may not have been ideal but were modified over time to become more efficient. He could not explain the discrepancies or coincidences in missing figures. He acknowledged that calculations by Mr Hill utilising additional information he provided indicate greater unexplained quantities.

Mr Partington emphatically stated that he had not fabricated documents; particularly the diary entry and drugs return sheets signed by Mr Stan Partington, the Moss Pharmacy driver. The records were contemporaneous although a few drug returns were compiled on Sunday but receipted on Monday when collected. He found it convenient and efficient for mid-cycle drug returns to be recorded on separate sheets to avoid the Pharmacy driver having to sign the MAR sheets. This would potentially require, if for a number of service users on multiple prescriptions, some 480 signatures.

On 4 November 2004 when the unannounced inspection took place, Mr Hill was shown into Mr Partington's office; he found that drugs were not in the medicine room/drugs cabinet but were in a locked stationery/louvred cupboard which also contained cleaning materials. Mr DD, Cleaner at the Home explained that at the time of the inspection he was in process of cleaning the medicine room which accommodates the medicine stock and trolley. As is his usual practice, whilst a nurse was present, he had placed them in the locked cupboard to enable him to carry out his cleaning duties. This was interrupted by the inspection when he was asked to vacate the room. He left some of his cleaning materials in the louvred cupboard.

The Commission alleged that certain service users have been given invasive treatment, such as 'Per Rectum' examinations and enemas without records of consent. Mr Partington stated that treatments had been given on the advice of service user's GPs and that evidence of consent was kept on separate documents. Individual service user's files were kept brief and comprised those sheets used regularly. Less frequent information such as consent to such treatment was recorded separately on records kept by him in his office. The consents were to be found in the clinical procedures/medical record sheets.

Regulation 14(1)(a)-(d) and 14(2)(a) and (b)

The Commission concluded that service users Ms MMcC, Ms BD and Ms DH were admitted by Barton Park out of category in that they had mental health needs and/or dementia. The Commission found shortfalls in the pre-admission assessments carried out by Barton Park.

Mr Partington explained the Home's pre-admission assessment procedures which he stated included an assessment by the transferring hospital. In each case he did not consider that the service users mentioned were out of category or outside the scope of the Barton Park's capabilities. They did not in the opinion of the professionals involved require an assessment or liaison with any person trained in aspects of mental health care or other specialist assessments. Diagnoses were made by the individual service user's doctors, clinical decisions had been made that Barton Park was an appropriate placement.

Mr Partington stated that service users had originally been given generic information about their assessment and the Home's services. Since becoming aware of the requirement for individual information, specific assessments are now provided. Similarly, service user's plans have been improved. Mr Partington stated that Barton Park has improved its processes as it gained experience of new requirements and responded to information and advice given by inspectors, particularly Mr Perry.

Regulation 15(1) and (2)(b)

Mr Partington made similar comments about care plans for Ms S, Ms A, Ms EC and Ms PA-S. He referred to the separate sheets containing less frequent information which together with service users files gave a complete picture. He denied that any service user was admitted for terminal care but some had died after a short period at the Home. He considered that a ninety-four year-old service user who had a diagnosis of breast cancer but whose sole treatment was a single daily tablet prescribed by her GP died of "old age." He described some of the service user's behaviour which arose from their individual characters, circumstances and life experiences.

Regulation 17(2)-(4) and Schedule 4(7)

Ms CM joined the Home as Administrator during 2004. On starting at the Home she decided to tidy and reorganise the office. In doing so, she destroyed around twelve to thirteen sheets of paper forming the rosters for the period January to April 2005. She retained five weeks records because the salary cycle was monthly. She had not been made aware of regulatory requirements for retention of rosters and certain other records for a five-year period. She and Mr Partington also detailed the theft of a filing cabinet temporarily removed to neighbouring premises whilst the office was redecorated. Documents in the cabinet included other staffing rotas and records. The Police recorded the theft but did not specifically note the missing filing cabinet or contents.

Submissions made on behalf of the Commission

Mr Anderson's overarching submission on behalf of the Commission was that whilst other breaches of Regulations had import, the issue requiring cancellation of Mr Partington's registration involved his integrity. It was apparent to the Commission that the handwritten drugs return sheets and diary entry produced by him in response to the unaccounted liquid Promazine and other drugs were fabricated after the events to explain them. He suggested "bizarre" and "incredible" that mistakes in calculation by Mr Hill should have been reproduced in these documents.

With reference to the (Re-amended) Schedule of Issues, he submitted "that the Respondent maintains the other breaches set out in the opening but wishes merely to repeat the opening submissions with a few additional points. The main significance of the additional points is to demonstrate A's lack of credibility which is probative of the allegation that he has dishonestly manufactured the handwritten sheets." The Commission believes Mr Partington is "lying" in his response to these breaches.

Submissions made on behalf of the Appellant

Mr McCarthy drew attention to the wider pattern of events or "broader agenda" which gave rise to the inspection and interview. He submitted that this agenda and methodology was oppressive, involving several agencies, including the Police, with little if any information given to Mr Partington to prepare in advance for the interview or a prior opportunity to see the documents mentioned during the interview.

Mr McCarthy drew attention to the several allegations which were not upheld by the Commission's Regional Director and positive comments by friends and relatives of residents and staff. He drew attention to factors surrounding the drug returns which made Mr Hill's audit unreliable. He suggested that if the figures did not add up, that would be a result of poor recording or poor system but not proof of forgery.

Mr McCarthy submitted that if any breaches are found, resultant action should be proportionate. He listed persons who might be affected by cancellation of Mr Partington's registration on the basis that this would have effect on Barton Park. He suggested that consideration might be given to the imposition of relevant conditions upon the registration.

Tribunal's conclusions

We have carefully considered the extensive written evidence provided and the oral evidence and submissions given at the hearing. We set out our conclusions in the sequence of and with reference to the numbered paragraphs in the Re-Amended Schedule of Issues reproduced above.

CSCI's approach:

Paras 6 – 8

a. We find it appropriate for information obtained during a broader enquiry into matters relating to Barton Park but which is relevant to activities and requirements of its Registered Manager to be considered in that regard. There is no compelling reason to overlook or ring-fence such information so that the Commission or at this stage the Tribunal could not consider whether the Registered Manager has fulfilled his role. We find it neither unfair, onerous or an abuse of process. Mr Partington has had an opportunity to consider both information and his response. The action taken by the Commission was not immediate; they did not close the Home. He has had opportunities during the appeal process to present additional information in the light of the full disclosure given by the Commission in accordance with directions made by the Tribunal. We conclude it irrelevant that any broader agenda has motivated, inspired or influenced the inception of the Commission's consideration of Mr Partington's registration.

Regulation 9(2)(b):

Paras 9 – 13

b. The interview on 3 December 2004 was unusual in its circumstances. It was clearly planned and defined as part of a broader enquiry involving other agencies. Evidence was given by Mr Perry and Ms Fairhurst that the questions were drafted, amended, agreed and scripted. There is no dispute that Mr Partington was not given prior access to relevant documents or the list of questions and was not briefed about the underlying purpose of the enquiries. This was deliberate to avoid "contamination" of the enquiries by other agencies, particularly a Police investigation. We accept that the circumstances were such that Mr Partington could not have given his best and that assertions relying solely upon information he gave during that interview would not be balanced. We do not conclude that this renders the enquiries during the interview invalid or that assertions that arose from it which have later been investigated and the subject of further opportunity to explain by Mr Partington are unfair. They have been specified in the Notice of Proposal and the Notice of Cancellation. Mr Partington has had opportunity to respond in his subsequent objections and appeal to this Tribunal.

c. The information given during the interview about Mr Partington's professional development and attendance on courses together with the explanations and clarification he has subsequently provided leads us to the conclusion that he has attended appropriate training, is aware of the need to update skills and knowledge and has demonstrated that he has fulfilled his professional requirements. We accept as he stated that the range of courses is such that it would not be possible to have recently undertaken training in each topic. We do not consider that he lacked required qualification or awareness in meeting the needs of people with dementia. We believe that this allegation would have been avoided if Mr Partington had compiled and kept available a formal professional development plan.

Regulation 13(1)(b) and (2):

Para 13(a)

d. There is confusion regarding the visits of Nurse Kirby, Palliative Care Nurse and the two other visitors whose identity and purpose were unknown. There are some discrepancies in the timing of these visits. We are unable in the light of this confusion to conclude whether or not there was an inappropriate or even deliberate refusal of specialist support. The parties did not dispute that referral to the Palliative Care Service came from a service user's GP and Nurse Kirby stated that it is not unusual for help to be refused, especially where "a registered general nurse has care responsibility." We accept that Ms S did not want the involvement of MacMillan nurses or disclosure of her illness. By all accounts she was an independent lady. Little information was given regarding Ms A; we do not find sufficient evidence to establish a breach of regulations.

Para 15

e. Mr Partington specifically stated that he was aware of how to obtain emergency supplies of drugs. This does not appear to have been an issue in practice. We find no persuasive evidence to the contrary and conclude that a breach of requirement is not established.

Para16

f. Sister JG's evidence was confident and credible. We are satisfied that Insulin was given to Ms JS on 21 August and 2 September 2004 by Nurse H and Sister JG respectively, although not recorded on MAR sheets. Nurse H's record was on the daily evaluation sheet. We accept from Sister JG that she received a verbal warning for this omission and conclude that appropriate action has been taken by Mr Partington.

Para 18

g. The Commission placed particular emphasis on breach of Regulation 13(1)(b) and (2) and in particular in relation to Promazine records. This was central to the case and expressed to be so by Mr Anderson. The true position is confusing; evidence given by Mr Hill shows he had to take an arbitrary base for his audit and at time of audit not all factors were able to be taken into account such as residual drugs within the Home brought by service users or from previous periods.

h. It is common ground that in excess of 4 litres of Promazine were not accounted for save by drug return sheets produced by Mr Partington as he stated from his desk drawer. It was not in issue that the original sheets are no longer available but we have copies. Issues surround the circumstances of their production and whether they are genuine records made at the time of returns or compiled to explain the discrepancies after the event. Similar submissions were made in relation to the copy diary sheet produced by Mr Partington with his fourth statement dated 9 December 2005.

i. We find it surprising in view of the importance the Commission placed on these allegations it did not earlier see fit to expressly pursue grounds under Regulation 9(2)(a) which relate to integrity and good character. They have now chosen to do so as stated in Mr Anderson's submissions and also submit that the breach of Regulation 13(2) and attempt to cover up that breach alone gives grounds for cancellation. The details of this allegation have been obvious to Mr Partington for some time. He has had the opportunity at least since documentary disclosure by the Commission to consider and prepare his response. He gave his explanation in his statements and in evidence given on oath.

j. Neither party suggested a purpose or motive for failing to record the Promazine or some alternative outlet for the missing amount. We have not in our consideration taken the view that there is any sinister event or unexplained purpose but have concentrated on Mr Partington's responsibility as Registered Manager of the Home for ensuring appropriate records were kept in accordance with the Regulation. We do not accept this is the case. Neither party was able to ascertain exactly the amount that was required to be accounted for or ultimately the shortfall. Whilst an explanation might have been given for 4,395 ml which could subsequently be adjusted by information from the blue book and breakages, we are not satisfied that the amount explained this way amounts to all the Promazine at the Home over the relevant period. We conclude this results from an improper system of recording and failures to record. We do not consider separate records for mid and end-cycle returns and separate sheets to avoid entries on individual patient records a satisfactory system in discharge of requirements. The difficulties in audit are amply illustrated by the problems that have arisen.

k. Turning to Mr Partington's explanation of the returns to Pharmacy of the 4,395 ml of liquid Promazine and other drugs, it is necessary for us to form a view whether the return sheets are a genuine record of what took place. Mr Partington stated why the sheets were compiled and the method followed. Mr Stan Partington, who was summonsed to give oral evidence but was not called, gave relevant evidence in his written statement. Miss Halsall, whose statement also relates to returns, did not present oral evidence. The Commission submitted that the information she held was based purely upon Mr Partington's handwritten records rather than her own direct knowledge.

l. In the light of the information given we find the drug return sheets and diary entry exhibited to Mr Partington's fourth statement are not contemporaneous records that comply with either the Regulations or National Minimum Standards. We conclude they are false. We have applied the civil standard of proof detailed above.

i. We do not consider it highly improbable that an individual of a certain frame of mind faced with the requirement to explain apparent inconsistencies or shortages might unwisely attempt to do so by producing documentation containing an apparent explanation.

ii. Taking into account the serious consequences of which an informed individual such as the Registered Manager of a care home would be aware for failing to comply with a fundamental regulatory requirement; accurate drug records and the size of the discrepant amounts, particularly Promazine, being a significant proportion of the total prescribed over the period, we consider that it would not be highly improbable that such individual might attempt to document an explanation.

iii. The explanation supported by the drug return sheets contains coincidences, it repeats exactly, as submitted by the Commission, a basic mathematical error made which subsequently became apparent. We do not find credible that a diary entry should emerge with Mr Partington's statement dated 9 December 2005, during the hearing, evidencing a record of breakage. The diary entry also provides information about another alleged breach. We conclude it extremely unlikely and improbable that either drug return sheets or diary entry are a contemporaneous record.

iv. When it was pointed out, Mr Partington said that some return sheets although dated Sunday, were prepared in advance of collection.

v. The records were not offered during the inspection, or shortly afterwards, notwithstanding a request by the Commission at the time in writing for "drug records."

vi. Mr Partington stated that one sheet relating to two individual returns was misdated. We consider that such record is of importance and it is unlikely such a simple error would have been made at that time of the year.

vii. Neither Mr Stan Partington nor Miss Halsall's written evidence contains persuasive detail to reach an alternative conclusion to the above.

viii. We are not persuaded by Mr Partington's explanation that it would have been impracticable to record Pharmacy returns on MAR sheets. He illustrated this by stating the theoretical possibility of the large number of signatures that might be needed. We do not accept in practice that this would have been the case. The number of service users for whom returns would be necessary at any particular time are relatively small and their records could be managed.

ix. The lack of a single complete record of drugs is consistent with other controversial aspects of the Home's paperwork such as care plans. This indicates a relatively awkward system of recording which we consider bound to be ineffective and in practice has proved to be so. We conclude that the drug return sheets and diary entry were records produced to answer particular criticisms.

x. In summary whilst Mr Partington's evidence was given assertively, we do not find his explanation credible. It contrasts with the general impression of firm and orderly management of the Care Home he otherwise gave. Whilst we have no doubt service users care needs were met as evidenced by many references and the relatively positive inspections, in this aspect we consider Mr Partington failed and the relevant records cannot be accepted as accurate registers of the events described.

Paras 19 and 21

m. The Commission did not provide detailed evidence relating to Oramorph and Trifluoperazine. The separate drug return sheets accounted for the unexplained amounts. The parties concentrated upon issues surrounding the unaccounted Promazine liquid. For reasons set out above we cannot accept the drug return sheets as valid records and find there is a breach of regulation requiring accurate records for these drugs. Mr Partington's evidence was that the position could not be seen on MAR sheets or other records without taking into account the drug return sheets.

Para 23

n. We heard the explanation by Mr DD which was cogent, convincing and corroborated by Mr Hill's description of what he found when he entered the office. We are satisfied that drugs were stored safely, they were placed in a locked cupboard and there was no evidence of long term failure to store. A medicine cupboard requires cleaning on occasion. We conclude that requirements have not been breached.

Para 27

o. We are satisfied from Mr Partington's evidence that the administration of discretional medicine, particularly enemas was consensual. The Commission did not find a record of the consent. Mr Partington explained that this was not in service users' files as he considered such information to be occasional or infrequent. The documents in which the consent is recorded have not been the subject of evaluation or criticism by the Commission save that it was submitted that it was improbable that such important documents would not be in service users files. We note that Mr Partington stated they were kept in his desk drawer. We do not find the records false or unreliable. We accept Mr Partington's explanation although we consider the record system was fragmented and inappropriate. To the extent they include evidence of consent to treatment, we conclude that they are a sufficient record and do not find a breach of requirements.

Regulation 14(1)(a)-(d) and 14(2)(a) and (b)

Paras 29 - 32

p. We accept from Mr Partington's evidence that pre-admission assessments of potential service users were carried out although the resulting documentation is not clear or satisfactory. We do not consider than further independent or specialist assessments were necessary. We are satisfied from Mr Partington's evidence that hospital assessments will have taken place before transfer and service users and relatives were sufficiently informed of the Home's services and arrangements. We note he is now aware of the need for individualised information to be provided to service users.

Regulation 15(1)and (2)(b)

Paras 33 - 37

q. We have perused the copy care plans provided and taken note of the evidence of the parties. We find the plans insufficiently detailed and note that essential information was recorded elsewhere. They are not in themselves complete. Barton Park was the subject of frequent inspections by the Commission, announced and unannounced and this issue was not highlighted to the extent of assessment at say Level 1. On balance, we accept the care plan documentation was adequate, although barely so and do not find a breach of regulations or requirements substantiated. We expect the inspection process to ensure improvements if they have not already taken place.

r. The evidence indicates that service users were well cared for and staff were familiar with their needs and requirements. They were seen by their GPs. References reflect well on the Home. We make no separate finding about lack of adequacy of particular service users care plans relating to mental or terminal aspects of their care.

Para 38

s. We reach similar conclusions to those set out in paragraph 27.

Regulation 17(2)-(4) and Schedule 4(7)

Para 39

t. Duty rosters for the appropriate period are not available. Evidence was given that they have been destroyed. The explanation was that some were cleared during office reorganisation and the earlier records contained in a filing cabinet that was stolen. We accept this explanation, whilst they should clearly have been retained, in the light of the circumstances do not find a breach.

Summary

u. We have concluded that Mr Partington has breached the Regulations as set out above. We find the production of records which we consider were drawn to answer queries rather than as reliable and contemporaneous documents, an indication that he is not of the integrity and good character which renders him fit under Regulation 9(2).

v. We consider that the lack of accurate drug records required by Regulation 13(2) and National Minimum Standards is a serious breach taking into account the quantities and period involved. This alone indicates a lack of responsibility which reflects upon Mr Partington's qualifications, skills and experience for managing a Care Home.

w. It has not been necessary for us to calculate the precise discrepancies; in any event we do not think it is possible, there are too many variables. That factor does not cause us to doubt our findings, to the contrary, it illustrates the importance of complete drug records and in this instance, the absence of same.

x. We conclude that Mr Partington does not fulfil the requirements to manage a Care Home contained in Regulation 9(2).

Adverse findings:

Para 40 - 43

y. In the light of our findings we conclude for the reasons set out above Mr Partington's registration should be cancelled. We consider our findings u., v., x., above of such severity that it inevitably brings into serious question his suitability to be Registered Manager of Barton Park. Whilst we accept that other shortfalls are capable of improvement and would not themselves have led us to cancel his registration, these findings are determinative.

z. We do not consider that any condition could be imposed that might adequately protect service users or others interested in the management of the Home or that our conclusion is disproportionate in the light of the breach that has occurred. Mr Partington's failure to maintain adequate drug records and attempt to hide the true position or mislead the Commission is such that it raises severe questions about his integrity and reliability. We find it no longer possible to have confidence in the records he is required to maintain and the information he is required to provide. This is a basic requirement of the Manager of a Care Home and a fundamental part of his responsibility to service users.

aa. Our conclusions are unanimous.

Order

Mr Partington's appeal is dismissed.

Restricted Reporting Order

We conclude that the Order should continue as follows: