Kalchev v Secretary of State for Education [2005] EWCST 589(PVA) (26 July 2006) 

RUMEN KALCHEV
v
THE SECRETARY OF STATE FOR EDUCATION AND SKILLS 
[2005] 589.PVA 
[2005] 590.PC

On 26 July 2006 sitting in Oxford County Court.

BEFORE

Mr I Robertson
Mr D Allman
Mr B Cairns

REPRESENTATION

Mr Kalchev in person

Mr Auburn of counsel instructed by the Treasury Solicitor for the Secretary of State

PRELIMINARY MATTER

1.	This matter was initially listed for hearing on 4 May 2006. At that hearing Mr Kalchev indicated through his interpreter that he wanted the assistance of a lawyer. In light of the fact that the issues he had to deal with were complex and went to the heart of his ability to maintain himself, and of his own limited grasp of the language, such an adjournment was granted. The Tribunal further assisted Mr Kalchev by giving him details of local lawyers in the area who undertook Publicly Funded work and Mr Kalchev was sent details by the secretariat of how the Public Funding scheme applies to POCA and POVA cases ( see  L v Secretary of State 2005 547 PVA) 
 
2.	We were surprised therefore when he appeared before us on 26 July unrepresented, He told us that he had been quoted £5000 for representation as he was told his means rendered him ineligible for Public Funding. We are surprised at this and would once more try and bring practitioners attention to the existence of the scheme in such cases. We had made clear on 4 May that we would not countenance a further adjournment and to be fair Mr Kalchev did not seek one. The matter therefore proceeded with Mr Kalchev acting in person assisted by an interpreter.

BACKGROUND

3.	Mr Kalchev is a Bulgarian national aged 42 years. He came to this Country at the end of 2003. Prior to this he told us that he trained as a Doctor and qualified in 1987 working as an Anaesthetist. In 1996 he became head of the department of Anaesthetics at an Oncology Hospital. He did not explain why he left Bulgaria but from the papers it appears to have been for economic reasons. He did not seek employment in England as a Doctor as he said that his English was not good enough. Instead he worked in a number of relatively low paid jobs until seeking employment at a Nursing Home (referred to as X) near Oxford in May 2004. 
 
4.	He started work as a Care assistant on 5 July 2004. He received at least a days induction training. On 3 August 2004 a roll of undeveloped photographs were taken to a shop with a photographic mini lab for developing. A number of the images when developed caused shock at the shop and the manager having deduced that they related to Residents of a Care Home known to him contacted the Home and showed the photos to its manager. They did not in fact relate to that Care Home but the staff there quickly deduced that they in fact related to X. They contacted management at X and a meeting was convened with Mr Kalchev who admitted taking the photographs. He said that he had taken the photographs of staff and patients to show to his mother in Bulgaria. He also wanted to show working practices. He handed over the deposit slip and the photos were collected by staff the following day.

5.	The majority of the photographs were entirely innocent but at least three caused major concern. We have been hampered to a degree in this case by the fact that the photographs have been destroyed but Mr Kalchev to his credit has accepted the descriptions of what the photographs contained. For the purpose of this decision we will concentrate on just two photographs both of Mr CG, although there were clearly photographs of another Resident Mrs HW which paid little regard to her dignity.

6.	 Mr CG is now dead. At the time the photographs were taken he was aged 94. He had serious medical difficulties and was certified by his GP as having been severely mentally incapacitated for at least two years. Staff described him as having dementia which at the time was very progressed. He was unaware of any events or interactions taking place around him. At that time he did not speak and needed total nursing care. 

7.	 The photographs involving him were described to us by Mr Ellis who is employed as the Vulnerable Adult Protection Worker for Oxfordshire County Council who along with CSCI had been contacted by the home. Photograph 1 showed Mr CG lying in the sling of a hoist. Beside him was a woman in uniform. She was smiling at the camera and was holding an incontinence pad which was collecting faeces which were seen to be coming from Mr CG’s bottom. He was clear that the photograph must have been posed. Photograph 2 showed Mr CG sat back in his wheelchair. He appeared partially dressed wearing a shirt or pyjama top, and his face and his genitals were clearly visible in the photograph. Mr Ellis told us that, in his view, although CG was not posing for the photograph it could not have been taken by accident.

8.	 On 4 August a strategy meeting took place at the Offices of CSCI. Mr Kalchev was notified on 5 August that there was to be a disciplinary hearing convened on 11 August. At that meeting Mr Kalchev admitted taking the photographs. He said he had not meant to cause harm but had not thought through the consequences. The managers at the home found Mr Kalchev guilty of gross misconduct and dismissed him forthwith. They also made a referral to the Secretary of State for inclusion on the POVA list. 

9.	Following the strategy meeting on 4 August Mr Ellis also contacted the police. An inspector from the Thames Valley Police attended a further strategy meeting on 13 August and took away the photographs, which were apparently destroyed by the police after the conclusion of their investigation. On 20 August 2004 Mr Kalchev was arrested and interviewed by police. He admitted taking the photographs. On 25 August he was formally cautioned in the following terms;

“On or between Tuesday 20 July 2004 and Wednesday 11 August 2004 at X in the County of Oxfordshire, ill treated or wilfully neglected a patient receiving treatment for mental disorder as an inpatient at X Contrary to Section 127 Mental Health Act 1983.”

10.	Mr Kalchev accepted the caution. 

11.	 On 17 September 2004 The Secretary of State wrote to Mr Kalchev indicating that he was being provisionally placed on both the POVA and POCA lists. The letters clearly set out the serious consequences that flow from inclusion and ask for representations from Mr Kalchev as to why he should not be included in the lists. No representations were received from Mr Kalchev and he was confirmed on both lists on 31 January 2005. It appears that the notification letters went to an old address and Mr Kalchev only formally became aware of the decision on 14 September 2005. He appealed to this Tribunal against inclusion on 9 November 2005. His grounds of appeal included;

“I now realise that I made a mistake in taking photographs of the Residents in X (though I did ask their permission first) but this would have been acceptable in Bulgaria and I was not aware at that time that this was not acceptable in England because it violated the residents expectations of confidentiality, dignity and privacy”

In a letter to the Tribunal dated 27 April 2006, however, Mr Kalchev presented an opposing view, namely “There is not a country of the world wich acceptable to take photographs of the people without their consent (sic)”.

THE LAW

12.	The Secretary of State has a duty under S81 Care Standards Act 2000 to;

“…keep a list of individuals who are considered unsuitable to work with vulnerable Adults”

13.	The effect of inclusion on the list is spelled out by S89 which, to paraphrase, effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.
 
14.	 As indicated a referral was received from Mr Kalchevs  employers in August 2004 under S82 Care Standards Act 2000. This places a duty on employers to refer if; 

“(2)(a) that the provider has dismissed the worker on the grounds of misconduct …………which harmed or placed at risk of harm a vulnerable adult.”

15.	On appeal the tribunal has to consider the matter as follows;

“S86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
 
(b)	that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individuals favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list”

16.	In this case as set out above Mr Kalchev was cautioned for an offence under S127 Mental Health Act . This amounts to the equivalent of a conviction. By S86(4) Care Standards Act 2000;

“Where an individual has been convicted of an offence involving misconduct (whether or not in the course of employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination”

17.	There is no doubt in our mind that the Caution involved misconduct and actual or likely harm to Mr CG. We consider that the caution satisfies the first two limbs that we have to consider on Appeal. Furthermore we consider that given the presence of the caution the onus in the case switches and it is for Mr Kalchev to satisfy us in the circumstances that he is a suitable person to work with Vulnerable People (and Children in the case of the POCA listing).  

THE EVIDENCE

18.	We had before us a bundle containing witness statements from persons working in the photographic shop, from the care home, the police and authorities. It appeared to us that little of this was contentious providing as it did a chronological reference point for the admissions that followed. There was one bone of contention and that related to the nature of the induction course provided to Mr Kalchev. For the reasons set out below (see para. 23) we do not consider this to have any significant relevance to the case before us. 
 
19.	We have already set out the oral evidence given by Mr Ellis. This was not contested by Mr Kalchev. The main evidence came from Mr Kalchev himself. He gave evidence through an interpreter. He told us that he was sorry for what had happened and wanted to apologise for damaging the residents’ dignity. He gave us his personal history as set out above.  He presented various points in mitigation of his actions.  He told us that in his induction he was not told it was unlawful to take pictures of Residents. He said that he was using an old camera and it was not possible to check what was in the frame when the photograph was being taken. He said he did not mean to take a picture showing faeces emerging. He told us in any event he had the permission of the Residents to take the photographs. 

20.	In cross examination he said that he took the photos to show people in Bulgaria work practices here and also to send to his mother. During cross examination in our view he attempted to justify the pictures in three ways;

i)	That they were innocent and just showing colleagues, residents and work practices
ii)	That he had the residents permission
iii)	The two highlighted photographs were taken by accident

21.	It was only when the Chairman asked him to reflect on the photographs and reflect how he would have felt if they were photographs of his mother that he accepted that they were undignified and that it was wrong to take the photographs. He accepted he had been wrong to take the photographs. He also accepted that permission was irrelevant and that it was unacceptable anywhere in the world to take such photographs

DECISION

22.	In taking those pictures Mr Kalchev made a huge error of judgment. Despite having heard from him at length and seen what he said on various previous occasions we are not in a position to answer the fundamental question as to what motivated him to take the pictures. They are objectively obscene. Photograph 1 was posed in a manner that subjected Mr CG to the ultimate degradation and humiliation. The fact that he was completely helpless and in greater need of compassion and protection only aggravates the offence. Time and again we come back to the question why this photograph in particular was taken and we cannot answer that. 
 
23.	 Throughout his evidence we found Mr Kalchev to be dismissive and disingenuous. He attempted to justify the unjustifiable at every turn, by claiming consent from a person patently unable to consent, blaming the camera for not showing him what he was taking, blaming his managers for not holding proper induction training. We were led to infer that he expected to be told that taking such pictures compromised dignity rather than applying any form of individual responsibility. He expressed remorse but exhibited none. He claims to be a Doctor who has held a senior medical position. He produced documentation to this effect. This makes his offence all the greater. He must be an intelligent man whose professional training should have led him to understand what human dignity means who does not need it spelling out. 

24.	As we are unable to explain why the photographs were taken we cannot begin to understand the thought processes that led to them. The photographs are objectively obscene: accordingly it follows in the absence of explanation and real remorse that there must be a danger that there will be repetition of actions that profoundly affect a persons dignity, not necessarily by the taking of a photograph but also in other ways. If a person demonstrates such a profound lack of care and sensitivity as we find Mr Kalchev did, then there is a real danger that this will manifest itself again. We find therefore that he is unsuitable to work with Vulnerable people (our emphasis) and accordingly it is appropriate for him to remain on both the POVA and POCA lists.

APPEALS DISMISSED
This is the unanimous decision of the Tribunal. 

Mr I Robertson
Mr D Allman
Mr B Cairns