England and Wales Care Standards Tribunal

D v OFSTED [2006] EWCST 650(EY) (19 September 2006)

D v OFSTED [2006] 650.EY

On 28 September 2006 sitting at the Care Standards Tribunal

BEFORE

Mr I Robertson Chairman

Ms M Halstead

Dr N Merali

REPRESENTATION;

Ms D in person

Mr P Greatorix of Counsel appeared on behalf of OFSTED

THE BACKGROUND

1. Ms D registered as a Childminder for two children under the age of 8 in April 2003. As a result of checks with her GP concerns were raised regarding episodes of psychotic illness in 1994/95. As a result it was recommended that the registration be reviewed annually. On 8 June 2004 Ofsted received a referral from a psychiatric social worker expressing concerns as to Ms D's suitability as a childminder in the light of her recent admission to hospital. An inspector made a visit on 25 June 2004 but was unable to assess as no child were present. There were no records to indicate that Ms D had actually ever actively minded
2. In December 2004 Ms D moved addresses but did not notify OFSTED as required. The same inspector visited this new address in March 2005 but again could make no assessment as no children were present. Again there were no records to suggest that any childminding had actually taken place. As a result of concerns raised by social services about the nature of Ms D's illness the OFSTED medical adviser arranged for an Independent medical assessment by Dr Adrian Winbow a very experienced Consultant Adult Psychiatrist. He met with Ms D and arranged top see her medical records. As a result of this he recommended that she should not be allowed to Child mind.
3. As a result of this the OFSTED medical adviser categorised Ms D as being medically unfit to childmind. On a visit on 15 August the inspector offered Ms D the opportunity to resign. She refused to do so. On 1 September 2005 OFSTED served Notice of Intention to Cancel Registration upon Ms D. Ms D wrote a letter dated 15 September which was taken as a letter of objection and accordingly arranged an Objections Panel hearing for 7 December. Ms D was notified of her right to attend that panel in three letters dated 6 and 28 October and 18 November. She did not respond to these or attend the Panel. The panel refused to uphold Ms D's objection as set out in her letter of 15 September and on 3 January 2006 OFSTED sent her a letter notifying her of their decision to cancel her Registration. On 1 February 2006 the Tribunal Office received an undated Notice of Appeal from Ms D. The matter was set down for a hearing on 31 July 2006. On that day this Tribunal allowed an Application for an adjournment to allow Ms D to see if she could obtain legal representation and also obtain evidence in rebuttal of the medical evidence filed by OFSTED. In the event when the Tribunal reconvened Ms D had not been able to obtain representation nor file any further medical evidence.

THE LAW

4. By S79G (1) Children Act 1989 OFSTED may cancel a Registration of a person registered for childminding if they are of the opinion that the person has ceased to be qualified for such registration.
5. By S79B a person is qualified if, inter alia, the person is suitable to look after children aged under 8.
6. Ofsted's case is therefore very simply put. The nature of Ms D's mental illness is such that she is not suitable to care for such children.

THE EVIDENCE

7. We had before us Ms D's medical notes, 2 reports prepared by Dr Winbow and a full witness statement from Ms Wilson OFSTED area manager. We also had letters from Ms D and testimonials provided by friends. We also heard oral evidence from Dr Winbow and Ms Wilson, Ms D and her friend and supporter at the Tribunal Ms A.
8. This is a terribly sad case. Ms D came across as a very caring and child centred person. She was quietly spoken and patently honest within her own limitations. We heard glowing testimonials about her qualities as a parent and supporter of the local church and children both from the church and the neighbourhood. What became increasingly obvious through the hearing was her complete lack of insight into her illness and how this impacted upon her inability to understand how this in turn effected her ability to care for children as a childminder.
9. On 18 August 2004 Ms D underwent a Mental Health assessment as a result of a police referral following an assault by her upon a stranger in a bank. Earlier that year she had been referred to the psychiatric services and had been diagnosed as suffering from "Emotionally Unstable Personality Disorder". On 29 August she was re referred by her mother and a friend who were concerned that she was becoming increasingly aggressive and hostile. In addition to the Personality disorder she was diagnosed as having "Acute Transient Psychotic Disorder". During her illness Ms D had a lengthy admission under Section and her records indicate that for much of that time was very disturbed and displaying bizarre behaviour.
10. Dr Winbow saw her on 10 June 2005. At that stage she was in a normal mental state at interview with no symptoms of depression or psychosis. Dr Winbow diagnosed three areas of ill health;

i) Emotionally unstable personality disorder

ii) Psychogenic Psychosis

iii) Atypical Anorexia Nervosa

Following interview he concluded;

"In my opinion she is fit at present to look after children but there is a real risk of relapse of mental illness under times of stress."

11. He made clear however that he wished to review Ms D's medical notes. Following this review he concluded;

"After careful consideration, including my clinical examination as well as examining the previous notes, I feel that this patient is not fit to look after children under the age of 8 as there is a real risk of relapse of mental illness under times of stress"

12. We heard from Dr Winbow. He was a very impressive witness and all that one would expect from an expert. He has been a Consultant for 28 years. He told us that he had been instructed 30 times by OFSTED and that this was the first case he had assessed where he had reached this conclusion. He told us that his major concern was the diagnosis of Psychogenic Psychosis. He said that the onset of this can be sudden and even in patients with insight into their illness it can take them unawares. He indicated that Ms D had no such insight in any event. He accepted that there had only been two such episodes one in 1994 and one (or more) in 2004 and that the chances of relapse were between 10 to 20% although this was dependant upon stress factors and one of the untested stress factors was running a business as a childminder. He said that the onset of illness could place children at serious risk.
13. A number of factors quickly became apparent when Ms D gave evidence. It was clear that whilst she had been registered for over three years she had never actually minded for money on anything but an ad hoc basis. She had been actively involved with children in the local community and assisting in care for the children of family and friends but had never undertaken minding as a business. We felt as a result of hearing from her and Ms A, that this was because her life was actually too chaotic to be able to offer consistent caring. The second issue that quickly emerged was a complete lack of insight into her illness. She accepted that she had an eating disorder and insisted that it was this, coupled with the medical services failure to help her, that led to hospitalisation. She could not accept that she had become aggressive or acted out of character and saw no prospect of relapse. The third issue that concerned us deeply was her inability to understand the impact her illness may have upon the children she was caring for. She seemed to think that there was no difficulty if she did not feel well on any given day simply turning the child or children away.

THE DECISION

14. Although this was a desperately sad case the Tribunal had no difficulty coming to the conclusion that the appeal should be refused. Dr Winbow's evidence was clear, compelling and medically unchallenged. When Childminders are registered parents have a right to have confidence that the Registered person has been fully checked and is safe to care for their children. Our primary duty in considering an appeal is to have clear regard to the purpose of the legislation and that is to protect children. In considering suitability we have to have this at the forefront of our mind. The risks to children from any relapse in a person so lacking in insight as Ms D are real and substantial and accordingly we refuse the appeal

This is the unanimous decision of the Tribunal

APPEAL DISMISSED

Mr I Robertson Chairman

Ms M Halstead

Dr N Merali