England and Wales Care Standards Tribunal

AWL v The Secretary of State [2007] EWCST 1080(PVA) (18 December 2007)

A W L -v- The Secretary of State [2007] 1080.PVA [2005] 1081.PC Before:
Ms Maureen Roberts (nominated chairman) Ms Heather Reid Ms Christa Wiggin
Heard on 18^th December 2007 at The Guildhall, Carmarthen.

The Appellant appeared in person and was assisted by Ms Sarah Phillips of the advocacy service, Carmarthenshire People First.

Ms Zoe Leventhal of Counsel appeared for the Respondent instructed by the Treasury Solicitor Ms Catherine Saunders.

For the Respondent, we heard evidence from Mr Sion Davies the registered manager of Dan Y Graig home, Ms Charlene Williams a care worker at the home in 2006, and Mr Lee Brooks a senior care worker at the home.

The Appellant gave evidence.


Decision

1. The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 6th July 2007 (the decision letter); firstly (the first appeal) to confirm him on the Protection of Vulnerable Adult's List (the PoVA List) and secondly (the second appeal) to confirm him on the Protection of Children Act List (the PoCA List).
2. The decision letter also notified the Appellant that the effect of inclusion on the PoCA list also meant that the Appellant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that his name had been added to the Education Act List.
3. The tribunal makes a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations), restricting the reporting of the names of residents involved in the case and directing that reference to them shall be by their initials so as to protect their private lives. We further order that the decision be published in an anonymised form, under Regulation 27 to protect the private life of the Appellant.
4. Ms Phillips informed the Tribunal that the Appellant was profoundly dyslexic which meant he had difficulty reading documents and it was agreed time would be given for her to read out documents to him if needed, and to take instructions.

The law

5. The first appeal (the PoVA Appeal) is brought under section 86 (3) of the Care Standards Act 2000 (CSA 2000) which states;
   " 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 duty) 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 individual's 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.

6. The second appeal (the PoCA appeal) is brought under section 4 (3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86 (3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4 (3) of P0CA 1999 with unsuitability to work with children.
7. In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We noted the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review tribunal (Northern Region) [2006] 4 All ER 194 where all the recent cases on the standard of proof were considered. In this case Richards LJ said" Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities."

Late evidence

8. The Tribunal was asked to accept as late evidence a witness statement from Ms Williams, dated 18 December 2007, and was told that it had not been possible to prepare the statement earlier. Ms Phillips was given a copy and confirmed that she did not object to its inclusion in the papers. Accordingly the Tribunal allowed the application.

Facts

9. The Appellant was employed as a support worker for Maesteilo Care Homes from January 2004 until 15 May 2006.
10. On the7th May 2006 the Appellant was at Pembrey beach with one senior support worker and two junior support workers and seven clients. One client, MM, a vulnerable adult, became aggressive. He was pinching, spitting and throwing sand at one of the workers. The Appellant pushed MM gently on the back to encourage him to join the others and MM fell to the ground and became aggressive. The Appellant and another worker, Charlene Williams, restrained him by holding his wrists. A senior carer, Lee Brooks, came to help them. He placed MM on his back to stop him spitting and talked to him to calm him. Although calm, MM continued to flick sand. The Appellant then scooped some sand and threw it at MM. The other carers told the Appellant he was 'out of order'. The Appellant apologised immediately to MM. MM was shocked but unhurt.
11. The Appellant was suspended on the 10^th May 2006 when the matter came to the attention of his employers. The Appellant resigned from his job on the17th May. The matter was referred to the Police. They interviewed the Appellant who denied the matter in the first interview. The police interviewed other members of staff and at a second interview the Appellant admitted that he had thrown sand at MM. He was cautioned on 6^th July 2006 for common assault.
12. On 15th February 2007 the Appellant was referred to the Pova team. He was provisionally listed and notified in a letter dated 26 February 2007. He was invited to make submissions and it appears that he did not do so. The letter confirming his listing dated 6^th July 2007 concluded; "a) Your former employer reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by physically assaulting the service user and b) that you are considered unsuitable to work with vulnerable adults because you received a police caution."

The evidence to the Tribunal

13. Mr Davies gave us some background information about the home and the training programme for staff. Dan Y Graig was one of seven homes all providing care for adults with learning disabilities many of whom were autistic and with challenging behaviour. Some clients in 2006 were cared for on a two to one basis i.e. two members of staff to the individual client. MM had started on 2-1 ratio but that had been reduced to 1-1.The witnesses gave us a description of MM as a young man with autism; he had no speech but could sign and make sounds to make his needs known. He understood what was said to him. Ms Williams described him as a charming cheeky chap but who could suddenly present with very challenging behaviour.
14. Mr Davies described in some detail the NAPPI training given to staff to manage challenging and aggressive behaviour. For example such intervention should be in a wholly non-abusive way, not involve pressure on joints, and not place the client prone, on the floor. He stated that he would not normally place a client on his back to restrain him.
15. From the records we saw it was clear that the Appellant had completed his induction and NAPPI training in February 2004 shortly after he started work at the home. There was no record of any refresher course done by him. We also saw his Performance Appraisal Forms which were uniformly good noting that he was a reliable member of staff and had not had a single sick day off work.
16. Mr Davies described the policies and procedures in place and that every member of staff was given a copy of the policies and that they were signed for, by members of staff. He said that in these circumstances there should be an incident report, a body chart, and a record of restraint. It was unclear what forms had been completed and when they had been done. The forms could not be found and we did not see any forms for this incident. They should have been on the resident's file. Mr Davies thought that the originals might have been removed as part of the police investigation, but said that a copy should have been retained on the file.
17. Mr Davies confirmed that the Appellant had completed his training and probationary period. He had been liked by the service users and was a valued member of the team and that the incident was both isolated and out of character. There had been no other complaint or concern about his work.
18. Ms. Williams and Mr Brooks had both been on the beach on the day of the incident. They had both written a short account of what had happened on the 10^th May 2006 and later they had given longer statements to the police, Mr Brooks on 23rd June and Ms Williams on the 27^th June 2006.
19. Ms Williams said that the four staff and seven clients in the home went to the beach at about 6-00pm on Sunday 7^th May 2006. They had called at her house to pick up a football and a kite. Initially they were all playing football. MM then did not want to join in with the others and she and the Appellant were encouraging him to join in. MM was sitting down and he had thrown sand at Ms Williams. They pulled him up to his feet. The Appellant was pushing MM, to get him to walk along the beach. Ms Williams agreed that this had not been aggressive. MM fell over and became agitated had struck out at the Appellant and was spitting at them. They restrained MM by kneeling one on each side of him and holding his hands across his chest (described as a body wrap). She said the Appellant then scooped some sand with his free hand and threw it at MM. She was annoyed with the Appellant and told him so. She helped to wipe the sand off MM's face and out of his mouth. He seemed shocked. The Appellant immediately apologised to MM. They carried on with the outing and MM was calm for the rest of the day.
20. Mr Brooks had been called by Ms Williams and had come up the beach to help her and the Appellant with the restraint. When he arrived he said that MM was on the sand, sitting up being held but not forcibly restrained. MM was spitting at him so he laid him on his back and started to talk to him to calm him down. MM was flicking sand with his right hand. As they were talking a scoopful of sand came from the Appellant's hand and went over MM's face. Mr Brooks got MM up and Ms Williams walked him away and helped to wipe the sand off him. He agreed that the Appellant had apologised to MM.
21. It is not of critical importance to the tribunal but there was no consistency in the evidence about who had reported the incident and when. Ms Williams said that she had worried about what had happened and reported to a senior manager the next day to protect herself. Mr Brooks said it was MM's carer's responsibility to report it and therefore it was Ms Williams' job to report it and it was his responsibility to ensure that it had been reported. The Appellant said that Ms Williams had filled in a report on the Sunday night. What seems to have happened is that a bruise was noticed on MM's upper arm the next day and enquiries were made about that. MM said that another member of staff had bitten him. In the event both incidents were reported to an Adult Protection Meeting on the 15^th May 2006. As noted above the Tribunal did not see any reports from the time of the incident.
22. When the residents and carers went to the beach they were understaffed; there were four members of staff with seven residents. Ms Williams said that she should only have had one resident in her care and she had two.
23. Both witnesses spoke well of the Appellant. Mr Brooks said 'In the six months I have known him I have never seen him be aggressive towards anyone and I have not heard anyone voice concerns about him and his standard of care'. Ms Williams said, 'I have always found him very good at work. He can be firm when necessary, but always fair and very helpful. I have never seen him abusing any of the clients before and not had any concerns about his standard of care.'

The Appellant

24. The Appellant is a young man in his twenties. His advocate described him as having severe dyslexia. It was not easy for him to write or read quickly. He said that his school had not considered that he had dyslexia but he had been placed in a small special unit in his school and he had done 6 CoEAs. After school he had gone to College where he had been assessed as dyslexic; he had had one to one help there and obtained a GNVQ in Business studies and in Health and Social Care. He said he had been told he had language interference as he thought in Welsh and then had to translate it before speaking in English. He was the only care worker who had knowledge of sign language and he would sign to MM.
25. The Appellant described the events of the 7^th May 2006.He said that MM had been winding up another resident before they went to the beach and he had stopped him. When he and Ms Williams had been encouraging MM to join the others he had pushed him along by placing his hand on his back. This was something he usually did. He said that MM liked being encouraged to walk; he had his shoes on and was walking on tip toe. MM was walking towards the resident he had previously wound up. MM fell over and the Appellant denied that he pushed him making him fall.
26. He said that MM was throwing sand at Ms Williams and they went to restrain MM as described by holding his hands across his chest. He said MM was trying to bite him and spit at him. The appellant said that Mr Brookes had then laid him on the ground and he admitted that he threw sand at him. He said that MM was "shocked, he had trust in me he should have expected much more from me." The Appellant apologised to him.
27. He said that after he was suspended he resigned because he felt 'if he had done something wrong he would not have felt happy working there'. He had panicked at the first police interview and said it was an accident; he was upset and confused. At the second interview he was told that if he admitted the common assault he would get a caution and hear no more about it. So he accepted the caution. When he got notification of the provisional listing he said he was frightened and confused, he thought it was a list saying he could work with children with a disability at first. So he did nothing, in the hope that it would go away.
28. The Appellant has continued with his education at college doing a sports therapy course; he is also taking his Welsh Rugby Union referee qualifications and we saw a number of testimonials from his college, a blind bowlers' club where he volunteers and from a neighbour involved in rugby. He has obtained employment and works at the store Wilkinsons.
29. He said he was very sorry for what happened and it was evident that he had been upset and shaken by the incident. He said that he was trying to put something back into the community. He considered himself to be a quiet hard working person and wanted to show that if you make a mistake you can turn your life around and learn from your mistake.

Findings

30. We accept that the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult.
31. The issue that we have to address is one of 'suitability'. On this matter we were referred to the cases of CN, SP and Mairs. In the latter case the Tribunal stated that 'Unsuitability must be judged by the Tribunal at the date of the hearing. The judgement will involve consideration of the character disposition capacity and ability of the individual concerned including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgement will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed or placed at risk of harm a child.' In this case the reference is to a vulnerable adult. The Tribunal went on the say that the Tribunal may have regard to: the number of the incidents constituting the misconduct, the gravity of the misconduct, the time that has elapsed since the misconduct, the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child (in this case vulnerable adult), the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct and extenuating circumstances surrounding the misconduct.
32. In this case there was one incident of misconduct. The Appellant agreed that it was misconduct that had shocked MM and could have caused physical injury to him. The Appellant was upset by what had happened. He knew that MM was 'shocked that someone he had put his trust in could do that'. He said that it was a "moment of madness" and it was put to him that there was a risk that it might happen again. He said that it was an isolated incident and that he had learnt from it. He said he preferred to use talk down and this was his usual practice in situations, although on that day he and Ms Williams had used restraint. He said that if he thought it would happen again he would not have gone back to college to do a course which involves handling people. We note that he has continued with his education and found work. We considered whether the appellant had difficulty with impulse control and concluded that all the evidence pointed to this as an isolated incident without precedent in his work as a carer of vulnerable adults.
33. The caution will be on his Criminal records bureau check and he will need to take advice and think carefully before considering any future carer role. We also note that when he applied for a care post shortly after resigning from Dan Y Graig he told his potential employers about the situation and kept them informed: he did not take the post.
34. We accept that he is genuinely remorseful about what happened and did not seek to play down the potential seriousness of the situation and his responsibility towards the resident. We also accept that he panicked at the first police interview and did not act with deliberately dishonest intentions.
35. We note his previously unblemished record and positive comments about his work, study and voluntary work. We accept that he is trying to further his personal development and put something back into society.
36. Accordingly, while the Tribunal is satisfied that the Appellant was guilty of misconduct which placed a vulnerable adult at risk of harm it is not satisfied that the Appellant is unsuitable to work with vulnerable adults or children.
37. The appeals are allowed.
38. The decision of the Tribunal is unanimous.

APPEALS ALLOWED AND THE SECRETARY OF STATE BE DIRECTED TO REMOVE THE NAME OF AWL FROM THE POVA AND THE POCA LISTS

Ms Maureen Roberts

Ms Heather Reid

Ms Christa Wiggin