England and Wales Care Standards Tribunal

EK v Secretary of State [2006] EWCST716(PVA) (29 March 2007)

EK

-v-

SECRETARY OF STATE

[2006] 0716 PVA
[2006] 0717 PC

Before:
Ms Liz Goldthorpe, (Nominated Chair),

Dr James Lorimer

Mr Peter Sarll

Heard on February 27th, 28th and March 1^st 2007 at The Care Standards Tribunal (the CST), 18 Pocock Street, London SE1 OBW.

REPRESENTATION

For the Appellant.
Ms Nadia Miszczanyn, Legal Officer, UNISON

For the Respondent.
Ms Lisa Busch of Counsel instructed by the Treasury Solicitor

APPEAL

1. The Appellant appeals the two decisions of the Respondent contained in a letter to the Appellant dated 29 March 2006 (the Decision Letter). Firstly (the first Appeal) to confirm him on the Protection of Children Act list (the POCA list) and secondly (the second Appeal) to confirm him on the Protection of Vulnerable Adults list (the POVA list).
2. The Decision Letter also notified the Appellant that the effect of inclusion on the POVA list also meant that the Appellant would not be able to carry out work to which s.142 of the Education Act 2002 applies and that his name had been added to the Education List.

PRELIMINARY MATTERS

3. On 24 October 2006, the President, His Honour Judge Pearl, made directions under Regulations 8(1) and 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) that both the First and the Second Appeals would be heard together at an oral hearing, and giving directions as to documents to be served with relevant deadlines. On 15 December 2006 the President extended these timescales and vacated the original date for hearing on 10-12 January. On 24 October 2006 he also made a Restricted Reporting Order under Regulation 18(1) of the Regulations and a direction under Regulation 27(1) that the decision would be published in an edited form.
4. At the conclusion of the hearing, the Tribunal reaffirmed that the Restricted Reporting Order should remain in force until further order. Since the outcome of these appeals have potential relevance to the imminent, but entirely separate, Nursing and Midwifery Council Fitness to Practise proceedings against the Appellant, the Respondent accepted that anonymity was appropriate in the interests of fairness and justice to avoid any potential identification of the Appellant prior to those proceedings. Furthermore, the Tribunal has determined, following the reasoning in CN -v-Secretary of State [2004] 398.PC, to protect the private lives of the Appellant and the vulnerable adults concerned. Accordingly an Order was made which prohibits the publication (including by electronic means) in a written publication available to the public, or at 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 appellant or any vulnerable adult) and that this decision of the Tribunal will be published in an anonymised edited form in accordance with Regulation 27.

BACKGROUND

5. The Appellant, who is now aged 60, has been resident in the UK for 34 years. He qualified as a mental health nurse Level 2 in 1975 and Level 6 in 1981 and has practised as a registered mental health nurse ('RMN') in the UK for many years. In 1990 Mr K started working for the W Health and Social Care Trust as a Community Psychiatric Nurse ('CPN'). He formally retired from full time nursing in March 2006 and has not worked as a nurse since.
6. From 1998 onwards, in addition to his substantive NHS post, Mr K took on additional weekend shifts at two nursing homes in order to meet his financial obligations, including the support of family members who live overseas. These included shifts as a Staff Nurse at M Nursing Home until 2003, and at A Nursing Home from 2000 to 2002. In August 2002 he was began work as a Nurse in Charge at the R Care Home, run by the PC Consultancy, for 6 hours on Saturday and Sunday nights.
7. In February 2003 Mr K, who was the Night Staff Nurse in charge at the M Care Home, was suspended from duty as a result of an incident involving bruising to an elderly resident. The only report of this incident is in the CRB check disclosed by Mr K, which states that a doctor's report concluded this was not an accidental injury, but no further action was taken against Mr K or any of the two other members of staff on duty due to insufficient evidence. In August 2003 Mr K also started working at O House, a care home run by BUPA, initially as a Bank Nurse and subsequently for 11 hours on a Saturday as a Night Staff Nurse. Ms G, the Night Manager at the R Care Home gave a reference for this job, as did the former Deputy Care Manager at M Care Home, who described him as 'very suitable'.
8. Whilst working for PC Homes Mr K said he reported concerns about staff time sheet irregularities to management. Prior to the formal investigation, the Matron resigned and subsequently other staff were given a formal warning. According to an unverified, undated and unattributed record, in November 2003 Mr K was given a written warning for 6 months with respect to communication skills and clinical practices. In December 2003 formal ownership of the R Care Home transferred to AC Ltd and, according to the same undated record, Mr K was given a first and final written warning for 12 months for breach of confidentiality in June 2004.
9. In August and September 2004 there were two residents at the R Care Home who required different types of drugs for pain relief. Mrs H, who was dying of cancer and had been admitted to the home on 5 August for end of life care, was originally prescribed varying doses of a slow release painkiller, Morphine Sulphate in tablet form (MST). On discharge from hospital in mid September, Mrs C, who had undergone orthopaedic surgery, was prescribed both paracetamol and co-codamol: it was unclear from the entries on the medication chart that these two drugs should not have been given together. In line with various legislative requirements and professional guidance, care providers must keep a record of medicines currently prescribed for each resident. This includes a Medicine Administration Record ('MAR') chart, which is a record of what medicines are prescribed for an individual, in what dosage and when they must be given. The MAR chart is supplemented by the individual's care plan. Morphine pain relief is governed by the law on the possession and supply of controlled drugs, which requires a separate Controlled Drugs Register to be kept, recording the receipt, administration and disposal of these drugs.
10. On 28 August Mrs H's pain relief medication was changed from 20 mgs of MST to Diamorphine, pain relief in liquid form administered through a syringe driver. This was recorded in the MAR Chart with a line drawn across the end of the entry for MST under a dated column and signing this. The separate box for specifically recording the date of discontinuance was not filled in. On or before 4 September 2004, Ms P, the Matron went on holiday, leaving Ms J, then Assistant Matron, effectively in charge. Ms J was also Mr K's line manager and at about 13.30 on Saturday 4 September she gave him a single demonstration of the procedure required to change this syringe driver. Ms J then left the building at 14.30.
11. At 14.45 Mr K gave Mrs H 5mg of MST, and at 18.15 he gave her Oromorph, a fast acting painkiller. At about 16.00 Mr K telephoned the doctor, as he was concerned that Mrs H was still in pain. Mr K said he realised Mrs H was no longer on MST and reported his drug error to the Doctor when she arrived much later that evening. He also reported the error to Ms G, the Night Manager, to whom he handed over formally at 8 pm. Ms G did not record this drug error in the Nursing Report.
12. On 5 September at 19.00 Mr K again administered Oromorph to Mrs H. Mr K again failed to check the MAR Chart before dispensing this and did not record the fact that he had given it to her, although he recorded it in the Controlled Drugs Register. According to records supplied by the R Care Home during the hearing, on 5 September Ms J was on duty from 8 am until 2 pm with Mr AP and other care staff on that shift included Mr S, a care assistant who still works at R Care Home. Ms J handed over to Mr K thereafter, who was also on duty with Mr S. Mr K did not tell Ms J about his error, nor did he record the errors in the Nursing Report for either 4 or 5 September.
13. On 6 September Ms J says Ms G did not mention anything about these events when handing over to her, but that relatives of Mrs H reported to her that Mrs H had been in considerable pain on 4 September. Ms J says she was then told there had been a conversation between Mr K and Ms G about a possible drug error, part of which had been overheard by Mr S. Ms J says she did not appreciate the full significance of this and did not realise the drug error had been made until she checked the medication records on 11 September.
14. On 12 September Mrs H died and Ms P returned from leave the following day. Having been made aware of the drug error, Ms P took responsibility for carrying out an investigation that day, which included questioning Mr K. The outcome was said to have been a formal medication assessment for Mr K and advice to him of the need for extra training and monitoring of his administration of medicine.
15. Between 20 and 22 September 2004 Mrs C, a resident of the R Care Home, who had undergone orthopaedic surgery, was given doses of co-codemol and paracetamol on four separate occasions, which she was deemed able to self-administer. Mrs C did not take the last dose but Mr K failed to discard the drugs, did not record anything in the Nursing Report and omitted to tell his managers that he had not disposed of the drugs. This failure to record accurately the medication taken by the patient caused such confusion that the staff in charge of the next shift had to telephone him at his home to try to resolve which medication he had indeed given. Mrs C was re-admitted to hospital with an unrelated condition. During this period it is also alleged Mr K forced pills into the mouth of Mrs HB, another resident.
16. On 24 September Mr K was suspended on full pay from the R Care Home. Disciplinary hearings were held on 29 September and 7 October respectively to consider the alleged drug errors. On 12 October 2004, AC Ltd dismissed him for gross misconduct on the basis of his admissions, the serious breach of confidence arising out of his errors and failures and in the belief that the necessary trust and confidence in a trained nurse was unlikely to be repaired by supervision and training. On 18 November 2004, prior to Mr K's appeal to the Chief Executive of AC Ltd, Ms F of AC Ltd made a referral to the Respondent. Mr K's dismissal was confirmed by AC Ltd on 29 November. In December the Respondent asked Ms F for further information. In January Ms F also referred Mr K's case to the Nursing and Midwifery Council. In March Ms F was told she had provided insufficient information to justify a referral to the NMC Fitness to Practise Investigating Committee. She then left AC Ltd and the Respondent did not receive a formal reply until April 2005, when AC Ltd forwarded some documentation on the events and the action taken. In March 2005 Ms J was acting manager of the R Care Home and became its manager from April 2006.
17. On his dismissal, Mr K's substantive post in the NHS continued and he remained employed by BUPA at the O Home. In January 2005 BUPA carried out an investigation into the care of Mrs G and Mrs E, residents at the O Home. Mr K was not blamed for what had happened. However, he was told in writing that his recording of events had not been full enough and he should make full and clear notes in future. The letter also said he should end his unacceptable practice of leaving cot sides up when delivering intimate care to residents or face disciplinary action.
18. On 23 June 2005 the Respondent confirmed that, having considered the information supplied by AC Ltd., the Secretary of State had decided to provisionally list Mr K on the PoVA List. Mr K was notified in writing of this provisional listing on that date. The letter, which invited him to make observations, stated: "the inclusion of your name on the PoVA List could have serious consequences for you if you intend to pursue a career working with vulnerable adults. Therefore you are strongly advised to read all the information included with this letter…" A document was enclosed giving information about the PoVA List and purporting to set out the implications for someone provisionally listed: paragraph 1 said the List "contains the names of individuals who the Secretary of State considers to be unsuitable to work with vulnerable adults. This would normally be as a result of an individual's dismissal, resignation or suspension from a care position, in circumstances which suggest that vulnerable adults have been harmed or put at risk of harm by that individual. Inclusion on the PoVA List means that you may not be offered employment in a care position within an organisation that cares for vulnerable adults…" The document then went on to describe the process of confirmation on the List and what would happen in consequence of that. It also set out the right of appeal to the Tribunal in the event of a provisional listing in excess of 9 months. The information regarding the PoCA list was in similar terms.
19. In August 2005 Mr K submitted his observations and a signed form to the Respondent. This form contained the pre-printed statement to the effect that the signatory had understood the consequences of his inclusion on the provisional list. Mr K's observations were passed to AC Ltd. for comment.
20. On 4 October 2005 Mr K was suspended on full pay whilst BUPA carried out an investigation into allegations that he had breached manual handling requirements by transferring Mrs B, a resident at O House, from an armchair to a wheelchair on his own and had manoeuvred the wheelchair inappropriately. It was also alleged that Mrs B had been observed to have bruising to her arm and staff had reported her as having screamed whilst being moved back to her room in a wheelchair by Mr K.
21. On 5 October BUPA referred this suspension to the Respondent. As a result, BUPA were told that Mr K was already provisionally listed. On 20 and 26 October BUPA notified Mr K of its intention to hold a disciplinary hearing in respect of his failure to follow manual handling guidelines and his failure to inform them of his listing, which rendered him unable to work in a care setting. The hearing was convened on 4 November. On the same day Mr K tendered his resignation in writing with immediate effect.
22. On 7 November BUPA notified Mr K that he had been given a Final Written Warning for serious negligence in the performance of his duties in transferring a resident incorrectly, which may have caused discomfort to her and failing to undertake mandatory training for manual handling. Furthermore, he had also been dismissed in accordance with BUPA's Care Services disciplinary procedure because of his provisional listing and the fact that the care provider could not employ anyone on that list. This dismissal overrode the final warning. On 6 December 2005 BUPA referred Mr K's name to the Respondent for inclusion on the PoVA list. On 15 December the Respondent confirmed Mr K's provisionally listing on both the POVA and POCA lists and he submitted observations on 29 December 2005.
23. On 29 March 2006 the Respondent wrote to Mr K stating that the Secretary of State had decided to confirm him on both the PoVA and PoCA lists, having concluded that:

(a) both of his former employers reasonably considered him to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, in that he had

inappropriately administered medication to a service user which was not prescribed for them, administered medication despite being told the service user was not to be given this medication, signing for medication which was not given, and disposing of medication without official record

worked in a regulated care position with vulnerable adults whilst being aware that he was already provisionally included on the PoVA list which prevented him from working with vulnerable adults

(b) he was considered unsuitable to work with vulnerable adults because of the serious nature of the medication errors, his reluctance to highlight these errors had been made, his previous record, and that he continued to both work with and seek additional work with vulnerable adults whilst temporarily prevented from doing so.

THE LAW

24. The Secretary of State's duty under s.81 Care Standards Act 2000 is to keep a list of individuals who are considered unsuitable to work with vulnerable Adults. The effect of inclusion on the list is spelled out by s.89, which 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.
    
    26. Referrals were received from AC Ltd and subsequently from BUPA, Mr K's employers, under s.82 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."

25. The First Appeal (the POVA Appeal) is brought under S 86(3) of the Care Standards Act 2000 (CSA 2000) which requires the Tribunal to be satisfied on the balance of probabilities:

"(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.

if not so satisfied, 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"

26. The Second Appeal (the POCA Appeal) is brought under the Protection of Children Act 1999 (POCA 1999) S4 (3), which is in similar terms to the CSA 2000 s.86 (3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of s.4 (3) of P0CA 1999 with unsuitability to work with children.
27. Care homes in England must register with the Commission for Social Care Inspection and are legally required to conduct their business in accordance with the Care Homes Regulations 2001. This includes a legal obligation to look after the medication of the people for whom they care:

•    Regulation 13 (2) requires the registered person 'to make arrangements for the….safe administration…of medicines' prescribed for residents

•    Regulation 17(1)(a) and Schedule 3(3)(i) require the registered person to keep 'a record of all medicines kept in the care home for the service user; and the date on which they were administered to the service user'.

•    Regulation 18 (1)(c) requires the registered person to ensure that the persons employed to work at the care home receive training appropriate to the work they are to perform.

28. Care homes registered to provide nursing care employ registered nurses. To practice lawfully as a registered nurse in the UK, the practitioner must hold a current and valid registration with the Nursing and Midwifery Council. The title "registered nurse" can only be granted to those holding such registration and this is a protected title under the Nurses, Midwives and Health Visitors Act 1997. Nursing is a self-regulating profession and is governed by the NMC as its regulatory body, so all registrants are required to abide by the NMC rules, standards and the NMC Code of professional conduct: standards for conduct, performance and ethics, known as the Code. Relevant NMC guidance includes guidelines for the administration of medicines and for professional practice, and more recently, advice on whistleblowing in 2006.
29. The Code states that managers have a duty toward patients and clients, colleagues, the wider community and the organisation in which they work: "[W]hen facing professional dilemmas, your first consideration in all activities must be the interests and safety of patients and clients." The care provider should have a managerial and supervisory process to identify when a registered nurse is not meeting NMC standards to minimise the risk of error.
30. As stated in the preamble to the 2002 Code, nurses are personally accountable for their practice. This means the nurse is answerable for their own actions and omissions, regardless of advice or directions from another professional. This includes individual accountability for ensuring all medicines are administered correctly.
31. The Code also sets out the legal duty of care nurses owe to their patients and clients, who are entitled to receive safe and competent care. This requires a nurse to act in such a way that justifies public trust and confidence, including identifying and minimising risk to those receiving care, as well as co-operation and effective communication with team colleagues, with whom a nurse should share knowledge, skill and expertise for the benefit of patients.
32. Furthermore, the Code states that standards of competent practice require a nurse to possess the requisite knowledge, skills and abilities for lawful, safe and effective practice without direct supervision. This includes the need to keep these up to date by regular training throughout working life. A nurse must also acknowledge the limits their professional competence, only undertaking practice and accepting responsibility for those activities in which they are competent. The Code clearly states that if an aspect of practice is beyond a nurse's level of competence or outside their area of registration, they must obtain help and supervision from a competent practitioner until they, and their employer, consider the individual has acquired the requisite knowledge and skill. A nurse must act quickly to protect patients from risk if they have good reason to believe that they, or a colleague, lacks fitness to practise for reasons of conduct, health or competence. Where circumstances cannot be remedied, the matter must be reported to a senior person with sufficient authority, supported by a written record. The Code advises that nurses "should be aware of the terms of legislation that offer protection for people who raise concerns about health and safety issues."
33. The Code stresses the importance of health care records as a tool of communication within the team. Nurses must ensure these are an accurate, consecutive account of treatment, care planning and delivery, which is completed as soon as possible after an event has occurred, and provides clear evidence of the decisions made and the information shared. The 1998 version of the NMC's Guidelines for records and record keeping has largely remained unchanged in subsequent versions and states that recordkeeping is a fundamental part of nursing and the quality of this also reflects an individual's standard of professional practice: "[I]t is a tool of professional practice and one that should help the care process. It is not separate from this process and it is not an optional extra to be fitted in if circumstances allow…Good record keeping is a mark of the skilled and safe practitioner, whilst careless or incomplete record keeping often highlights wider problems with the individual's practice."
34. The NMC guidelines point out that the courts tend to adopt the approach that 'if it is not recorded, it has not been done', stating that professional judgement needs to be exercised to decide what is relevant and what should be recorded, taking into account the reliance professional colleagues will place on it. Thus good communication is essential: good record keeping helps to protect patient welfare by promoting high standards of clinical care, continuity of care, better communication and dissemination of information between members of the inter-professional health care team, an accurate account of treatment and care planning and delivery, and provides the ability to detect problems, such as changes in a patient's condition, at an early stage. A number of factors contribute to effective record keeping, including clarity, consistency and accuracy: records should be written "as soon as possible after an event as occurred, providing current information on the care and condition of the patient…" This includes

•    accurate dating, timing and signatures for all entries including any alterations or additions,

•    the identification of problems and the action taken to rectify them, including relevant information about the patient's condition at any given time and the measures taken to respond to their needs

•    evidence that the nurse's duty of care has been understood and honoured, that all reasonable steps to care for the patient have been taken and a record made of any arrangements for the patient's continuing care

•    particular care and more frequent entries are necessary when patients "present complex problems, show deviation from the norm, require more intensive care than normal, are confused and disoriented or generally give cause for concern."

35. The NMC Guidelines for the administration of medicines published in 2002 and again in 2004 state "The administration of medicines is an important aspect of…professional practice... It is not solely a mechanistic task to be performed in strict compliance with the written prescription of a medical practitioner. It requires thought and the exercise of professional judgement...[and the practitioner must] know the therapeutic uses of the medicine to be administered, its normal dosage, side effects, precautions and contra-indications." Furthermore "[W]hen administering medication against a prescription written manually or electronically by a registered medical practitioner or another authorised prescriber, the prescription should…clearly specify the substance to be administered, using its generic or brand name where appropriate and its stated form, together with the strength, dosage, timing, frequency of administration, start and finish dates and route of administration...[and] in the case of controlled drugs, specify the dosage and the number of dosage units or total course"
36. The NMC guidance also states the nurse must "be aware of the patient's care plan, check that the prescription, or the label on medicine dispensed by a pharmacist, is clearly written and unambiguous, have considered the dosage, method of administration, route and timing of the administration in the context of the condition of the patient and co-existing therapies... [and] make a clear, accurate and immediate record of all medicine administered, intentionally withheld or refused by the patient, ensuring that any written entries and the signature are clear and legible."
37. Errors must be reported immediately to a line manager or the employer and require "a thorough and careful investigation at a local level, taking full account of the context and circumstances and the position of the practitioner involved. Such incidents require sensitive management and a comprehensive assessment of all the circumstances before a professional and managerial decision is reached on the appropriate way to proceed." The NMC makes it clear that, when considering allegations of misconduct arising from errors in the administration of medicines, it takes great care "to distinguish between those cases where the error was the result of reckless or incompetent practice or was concealed, and those that resulted from other causes, such as serious pressure of work, and where there was immediate, honest disclosure in the patient's interest." The NMC recognises the prerogative of managers to take local disciplinary action where necessary but urges that they also "consider each incident in its particular context and similarly discriminate."
38. The NMC guidelines state that a registered nurse should be particularly familiar with the regulations concerning schedule 2 medicines such as morphine and diamorphine. If responsible for the storage or administration of controlled drugs, a nurse should be aware of the content of the Misuse of Drugs Regulations 1985 and the Misuse of Drugs (Safe Custody) Regulations 1973, which require a prescription to specify the dose and total quantity, and in addition for controlled drugs, their form, strength and total units or dosage.
39. The National Minimum Standards ('NMS') for care homes, which address issues such as the privacy and dignity of residents and their protection from harm and abuse are not legally enforceable. However, they set out achievable outcomes for service users and therefore identify what care providers need to do in order to meet their legal obligations.

Medication is included in the group of standards concerned with the health and personal care of adult residents, and those concerned with the quality of care of children in care homes. The Secretary of State published NMS for care homes for the elderly under section 23(1) of the Care Standards Act 2000 in February 2003. The NMS for all care homes states that records should detail, for each resident, receipt, current prescription, administration and disposal. It supports safe self-administration by residents with the capacity and desire to do so, within a risk management framework, stating that the registered provider should ensure there is a policy and procedures for the receipt, recording, storage, handling, administration and disposal of medicines and that staff adhere to these.

40. The NMS for homes providing nursing care states that medicines in the home's custody should be handled according to the requirements of the Medicines Act 1968 and the Misuse of Drugs Act 1971, as well as guidelines from the Royal Pharmaceutical Society on the administration and control of medicines in care homes and children's services, which is widely used as a template of good practice. It points out that 'medicines, including controlled drugs, for service users receiving nursing care are administered by a medical practitioner or registered nurse' and that registered nurses must abide by the standards for the administration of medicines issued by the regulatory body. This includes monitoring the condition of any service user and regularly reviewing medication on a regular basis, calling in the GP if there is concern about any change that may be a result of medication.
41. In residential care homes the NMS places responsibility on care providers for providing the necessary accredited training of care workers and ensuring new employees are trained before assuming responsibility for medicine administration. Although the NMS for care homes providing nursing makes it clear this refers to care workers only, it does say that managers "will wish to ensure employed registered nurses are also competent in medicine administration."
42. The government's National Service Frameworks for Older People and for Children issued in 2001 and 2004 respectively also include guidance about medication management and safe medication practice. There is also an expectation that NHS primary care trusts will encourage good clinical governance by prescribers and suppliers of medicines within the NHS.

EVIDENCE

43. The Appellant gave written and oral evidence but called no witnesses. He relied upon two letters from Ms G, his former colleague who is no longer resident in the UK, and references from Dr Pal, a Community Psychiatrist and Ms LJ, a Registered General Nurse who was Mr K's line manager for 2 years.
44. The Tribunal heard evidence on behalf of the Respondent from Ms J, the current Manager of the R Care Home, Mr S, a Care Assistant at the R Care Home and Ms T, Head of Employee Relations for BUPA.

Standard and burden of proof

45. The standard of proof is the ordinary civil standard, namely on the balance of probabilities as defined in the House of Lords decision in Re H (minors) (sexual abuse: standards of proof) [1996] AC 563.
46. In R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194 Richards LJ considered all the recent cases on what is meant by this standard of proof in contexts outside the civil courts, in particular the House of Lords decisions in Re H and in Secretary of State for the Home Dept v Rehman [2003] 1 AC 153; and R (on the application of MCann) v Crown Court at Manchester [2003] 1 AC 787. He said at [60]:

"Whatever differences in expression there have been over time, it was laid down clearly by the House of Lords in Re H and …Rehman that in English law the civil standard is one single standard, namely proof on the balance of probabilities (or preponderance of probability). The other standard is the criminal standard of proof beyond reasonable doubt. There is no intermediate standard, nor is the civil standard to be broken down into sub-categories designed to produce one or more intermediate standards."

He went on to say at [62]:

"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. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."

and at [71]:

"…the seriousness of the consequences if a matter is proved is nonetheless a factor to be taken into account when deciding in practice whether the evidence is sufficiently strong to prove that matter on the balance of probabilities."

It is this test that we apply.

47. The evidential test requires the evidence to be cogent. In relation to the two main allegations of misconduct in this appeal, the Respondent relied upon the admissions made by the Appellant as well as evidence of his conduct before and after the dates of the main allegations, together with the evidence of Ms J and Mr S, and various records, including photocopies of the medical records kept in the R Care Home. The provenance of some of the latter records cannot be dated or attributed, and in the absence of any recent evidence from other witnesses, including Ms P, the Manager of the R Care Home at the relevant time, some amount to second hand hearsay evidence that could not be improved upon orally. The Appellant also volunteered a copy of his 2003 Criminal Records Bureau (CRB) check. The Respondent contended that this evidence showed a pattern of behaviour by the Appellant, which also made him unsuitable to work with vulnerable adults and children.
48. We note the potential inherent unfairness faced by Mr K in challenging some of the allegations made, other than through the limited range of witnesses called by the Respondent, and that these witnesses were restricted in what they were able to say by way of direct evidence. We as a Tribunal are mindful of, and indeed bound by, the Human Rights `Act 1998 and Article 6 of the European Convention. We have power under Rule 14(3)(a) of the Tribunal Regulations to exclude evidence on the basis that in all the circumstances it is unfair to consider it.

The burden of proof

49. The burden of proof rests on the person, in this case the Secretary of State, who makes the allegation. The correct approach is that set out in Barnes v Secretary of State for Health [2002] (0070) where the Tribunal said "the Secretary of State…discharges that burden if he satisfies us on a balance of probability both as to s 4(3) (a) and s 4(3) (b)" i.e. when looking at the balance of probability, the Secretary of State comes up to proof and discharges the burden when and only when Tribunal forms a view that the Secretary of State's version of events is more likely than not.
50. In some cases, the seriousness of the allegation will make the version of events as described more improbable and therefore more evidence will be required to discharge the burden. In other cases, although a serious incident is alleged, it will be an allegation that the Tribunal's expertise suggests is not so unlikely and therefore the balance of probability will be discharged without much in the way of supporting evidence.
51. According to PB v Secretary of State [2006] 628 PC there are 3 tests to apply, the third of which only comes into play if the first two are both satisfied. The Tribunal must firstly show an act or acts of misconduct and secondly that one or more of those acts have harmed a vulnerable adult or placed them at risk of harm. It is only if those two tests are satisfied evidentially, applying the civil test as set out in Re H (above) that the third test is reached.

Misconduct

52. This is not defined in the legislation, but in Angella Mairs [2004] 269 PC at paragraph 109, the Tribunal took the view that it is not necessary to establish that it was either serious or gross misconduct. "In principle a single act of negligence could constitute misconduct (per Webster J in R -v- Pharmaceutical Society of Great Britain ex parte Sokoh (1986) (The Times 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have know what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling."
53. The Tribunal in Mairs also stated that misconduct can arise out of acts of commission or omission and is a term that does not necessarily connote moral censure: an individual can be 'guilty of misconduct' without being, for example, dishonest or disgraceful. In addition, there is no misconduct if an Appellant was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct. However, if the requirement to act properly or in accordance with a code was merely rendered more difficult by the acts or omissions of others or by the prevailing circumstances, there can still be a finding of misconduct. Mitigation of an offence is always possible and, where the circumstances are such that the individual guilty of misconduct was overworked, short of time and/or unsupported it may be possible to excuse his or her misconduct. However, "misconduct is only extinguished where the extenuating circumstances rendered poor performance of a duty impossible as opposed to more difficult."
54. The President recently considered misconduct and the Tribunal's remit in the preliminary decision of Sini Joyce -v- Secretary of State [Preliminary Hearing] [2006] 813.PVA [2006] 814.PC. He drew a distinction between the role of the Tribunal and that of the Secretary of State, noting that before the Tribunal considers the evidence, the Secretary of State may have made no actual findings. This is because the test in s 82(7) does not oblige her to do so since her responsibility is limited to forming an opinion 'that the provider reasonably considered the worker to be guilty of misconduct.' If so satisfied, it is often only then that the Secretary of State, when preparing for an appeal, discovers further evidence of other alleged misconduct to support a continuation of her opposition to the appeal. The President took the view that s 86(3), in not defining 'misconduct' by reference to s 82(7), enables the Tribunal to consider evidence not available to the Secretary of State in the exercise of her duty to consider whether the provider reasonably considered the worker to be guilty of misconduct.
55. The President concluded: "…on a proper construction of s 86(3)(a) there is no restriction on the misconduct which may be considered by the Tribunal. This is the approach that has been taken by this Tribunal over a number of years in relation to the Protection of Children Act 1999 s 4(3) and s3(6); where identical wording to that of the Care Standards Act 2000 appears in the context of the PoCA list. Section 86(3) obliges the Tribunal to itself make findings of fact as to what actually occurred and then decide whether or not those facts disclose that the individual was guilty of misconduct. There is no restriction laid down in s 86(3)(a) as to the nature of the 'misconduct' that the Tribunal may consider, and that in particular there is nothing in the section that restricts the Tribunal either to a consideration of the 'misconduct' that led the Employer to dismiss (or would have dismissed or transferred) the worker; or to that which the Respondent took into account for the purposes of assessing whether the employer reasonably considered the worker to be guilty of misconduct."
56. By virtue of s.121, 'harm' means ill treatment or impairment of health to a vulnerable adult or to a child. All the links in the chain of causation between the misconduct and the harm or potential harm to a vulnerable adult must be intact before there can be a finding that an individual was guilty of misconduct resulting in harm or the risk of it. In deciding whether misconduct by omission has also produced this result, it is necessary to consider the professional responsibilities of the person listed and whether, if those responsibilities had been properly discharged, there is a real and substantive likelihood that such harm or risk would have been prevented or materially lessened.
57. Once there is a finding of misconduct, this must then trigger consideration of the second criterion for inclusion; namely unsuitability to work with vulnerable adults or with children. Not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children. A finding of misconduct of a less serious nature will not generally lead to finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable. Each case must be looked at on its own facts and context is very important as observed in MB v Secretary of State [2005] 512 PC and as stated in Barnes (above) "[t]here will of course be cases where it necessarily follows that a finding of misconduct carries with it the inevitable finding of unsuitability. There will be other cases where a finding of misconduct does not carry with it this consequence…"
58. In Mairs the Tribunal said "The judgment 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 judgment will inevitably be, at least in part, by way of deduction from past performances, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm". This requires consideration of at least, and not exclusively, the following matters:

(a) the number of incidents constituting the misconduct established;

(b) the gravity of that misconduct

(c) the time that has elapsed since that misconduct;

(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had potential to harm;

(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and

(f) extenuating circumstances surrounding the misconduct.

The Tribunal may also have regard to "other admitted, undisputed or proved past conduct of the applicant, whether good or bad".

59. In deciding whether an individual is unsuitable, the Secretary of State, or on appeal, the Tribunal, must undertake an assessment of risk. We accept that the test of suitability is not an evidential test in itself, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously. Moreover, the Tribunal must consider unsuitability as at the date of the hearing before it.
60. In considering the issue of suitability to work with children in addition to vulnerable adults, we adopt the reasoning in CN v Secretary of State [2004] 398.PC [2004] 399.PVA. Parliament's clear intention was that the language of the Act required us to take a broad view having regard to the degree of risk posed by the Appellant, and to the issue of public confidence. It is important to acknowledge that the public at large and those who entrust their relatives and or children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust caring for vulnerable adults or children are beyond reproach.
61. The principle stated in ARR v Secretary of State [2004] 271.PC that the provisions of the Act are themselves a proportionate response to the obvious need to protect the interests of children has been accepted in this case as equally applicable to cases involving vulnerable adults. We are equally satisfied that it is neither open to us nor desirable to depart from its requirements. Therefore there is no extra, proportionality, limb to the statutory test in the sense of having to weigh the public interest in protecting vulnerable adults and children against the risk of harm from adults in related employment against an individual's private rights to pursue whichever line of employment he might like.

The Respondent's case

62. The Secretary of State relied upon 3 main allegations of misconduct:

1. The Appellant's error in giving 5 mgs of MST to Mrs H when this medication had not only been discontinued on 28 August 2004, but her previous prescription had also been for 20 mgs MST. His failure to record on the MAR Chart the fact he had given this drug or to inform his senior managers that the error had been committed. In addition, that he did so rather than calling the Doctor in good time, and failed to record on the MAR Chart that he had given Mrs H Oromorph at 18:15 on 4 September 2004 or at 19:00 on 5 September 2004.

2. The Appellant's error in administering combination doses of co-codemol and paracetamol to Mrs C on four separate occasions between 20 and 22 September 2004, his failure to discard drugs that Mrs C had not taken and again his omission to tell his managers that he had not done so.

3. The Appellant's failure to inform BUPA Care Services of his provisional listing on 23 June 2005, and continuing to work for BUPA until his suspension and dismissal.

63. As evidence as evidence of Appellant's unsuitability, the Respondent also relied upon several other instances of alleged misconduct, including:

i) his suspension from duty at M Care Home in February 2003,

ii) his 6 month written warning in November 2003

iii) his final written warning for 12 months in June 2004

iv) his use of improper techniques to deliver personal care and his final written warning for failure to follow manual handling guidelines whilst in BUPA's employ

64. The original Response also set out a further allegation of misconduct in that on 21 September 2004 the Appellant had forced pills into Mrs A's mouth with water causing her to choke and cough.
65. The Respondent argued the Appellant's acceptance that he had engaged in the alleged conduct on 4 September and his concessions in oral evidence indicated there had been no confusion in his mind. All the subsidiary matters were individually and cumulatively relevant to the issue of suitability and substantiated the Respondent's case, taking into account the list of relevant matters set out in the Mairs case. The Appellant's apologies and expressions of regret about the errors leading to his listing were acknowledged, but in all the circumstances the Tribunal could not be confident he was now suitable to work with vulnerable adults or children.
66. The sole dispute was whether, during the course of the hand-over on 4 September 2004, Ms J told the Appellant, as he claimed, that Mrs H was still on MST. Ms J denied this and it was inherently implausible to suppose she would have said it since she was fully aware of the cessation of MST on 28 August 2004 in favour of a syringe driver. Confusion between 'oral morphine' and 'oramorph' was unlikely because the Appellant had said he normally referred to 'MST' not 'oral morphine'. The most likely explanation, as he had conceded, was that he had asked Ms J whether Mrs H was still being prescribed oramorph (which she was), although he had meant to refer to MST.
67. The Appellant had also agreed he was familiar with the medical records and had confirmed that, although trained as an RMN rather than as a general nurse, he was qualified to dispense drugs. He agreed he should not have relied upon Ms J's word in order to determine the drugs that were to be given to Mrs H, but checked the MAR Chart himself instead. Had he done so, he would have discovered immediately that Mrs H's prescription had been terminated on 28 August 2006 because this was clear from the Chart itself. He had been working as the Nurse in charge on that date and therefore must have checked the MAR Chart that weekend. If he did not, the inference must be that his failure to check the chart on 4 September was not a 'one-off' omission. The fact of his RMN training did not cause the errors he made, which included a failure to record the drugs even after the error was revealed by his belated check, and delaying compliance with Ms J's advice to call the Doctor if the syringe driver was not successfully abating Mrs H's pain.
68. These administration and recording errors therefore constituted misconduct. The necessary check was a simple and basic step, which the Appellant had neglected to perform, despite being well qualified to do so and knowing full well he ought to perform. He had provided the Tribunal with no reason, justification, or excuse for failing to do so. This was a clear case of falling short of the standards of conduct to be expected of members of the nursing profession (whether psychiatric nurses or general nurses).
69. His failure properly to report the fact that he had made these errors to management also constituted misconduct. Telling Ms G in the expectation that she would then pass on this information to management was insufficient since, when he read her nursing report the following day, he discovered she had not recorded the error. He should therefore have added to the report, and/or, one way or another, drawn the attention of management to the drug errors but again, without reason, justification or excuse, he failed to do so. Saying he had asked Ms G to leave room in the Nursing Report for him to insert this was inherently implausible, self-serving and untrue: he had not mentioned this previously, which alone cast doubt on the credibility of the assertion. Stating he had not corrected or added to the report for lack of space was since following the one line entry by another nurse on 5 September, the bottom third of the page was blank when the Appellant himself completed his report on 5 September with respect to Mrs H. Regardless of this, he failed to report the errors to management, i.e. to Ms J in Ms P's absence. The evidence seemed to point to a misleading report by Ms G, which Mr K then failed to correct, indicating that his behaviour fell short of the expected professional standards and was therefore misconduct.
70. Already aware his previous conduct was a cause for concern to management, nevertheless one week later, on 20 September 2004, the Appellant again administered the wrong medication to another patient, Mrs C.

Even though the lack of clarity in the entries was accepted, the Appellant had accepted he should have asked. In addition, saying he had forgotten to dispense with the dose Mrs C had failed to take because he had been distracted by having to answer another resident's call bell was inadequate since this must be a commonly occurring event in care homes with which staff should be equipped to cope. It was not known whether, as he asserted, the Appellant was short staffed on the morning of 21 September, but this was an eventuality a professional ought to be able to deal with, without making absolutely elementary errors, such as those arising out of mere forgetfulness.

71. Throughout September 2004, in addition to his full-time job, the Appellant was working weekend evening and night shifts at the R Home and for BUPA. He was therefore working excessive hours for three different employers and had agreed his errors might well be attributable to the fatigue he had claimed to be feeling on the morning of 21 September. Not only was this the reason for his fatigue, but, in working such excessive hours, the Appellant, albeit inadvertently, was placing the vulnerable adults for whom he was responsible at risk. In particular, his actions had placed them at risk through his failure to comply with the rules laid down by the home for their protection.
72. The principal misconduct in relation to BUPA was the failure to disclose his provisional listing, which the Appellant accepted he should have informed BUPA about. His claim that he did not realise the implications of being listed could not be supported since he had signed the document stating he understood these and the wording of the letter was unambiguous. It was utterly implausible to claim that a POVA officer had given him the impression he could continue working. In any event, the Appellant confirmed he had not directly asked the officer whether he could continue to work with vulnerable adults in a care home.

Appellant's submissions

73. Mr K admitted the drug errors, but said they were not intentional and had been made due to misunderstanding, a lack of training, insufficient staffing levels and bad feeling towards him due to his whistleblowing. He said he never intended to cause harm to any of the people in his care or to give false information about himself. He had told his employer from the outset that he was only an RMN. The mistakes had arisen when working in difficult circumstances with a lack of knowledge, understanding and insight, including the fact that he was not as familiar with some procedures as an RGN would have been in those circumstances.
74. He said these mistakes had been made only recently at the end of a previous career of over 30 years during which he had studied and worked satisfactorily as a nurse. His excellent sickness record supported the view that he had coped with the level of work involved in taking on the extra employment but he said the mistakes, which were linked to each other and compounded each other, were made whilst working under pressure.
75. The errors had been made during a period when he had been treated less sympathetically by his supervisors following his whistle blowing, in that he had been given more work than he could easily manage in his part time shifts and had had things explained less clearly than he would have liked. They had found fault with him and called him paranoid and he found it difficult to work in these conditions. He had felt unsupported and obliged to comply with demands to carry out extra work such as helping in the dining room at the same time as dispensing medication at the R Home. This was reinforced by Ms G's statement that, following a change of management, Mr K had felt he was not part of an 'inner circle' and was subjected to unfair workloads as a result. She said "[A]s he only worked two six hour shifts over the weekend, with no receptionist to answer the telephone calls, and increased enquiries from visiting family and friends, I would have to agree that it was often hard to complete all the extra tasks allocated to him."
76. Mr K said he had asked Ms J whether Mrs H was still on MST and she had confirmed this was the case. But he had realised his error and had verbally informed a doctor and Ms G, who he perceived as senior to him. He had recorded the error in the controlled drugs register, although he accepted he had not recorded it fully on Mrs H's notes. His failure to go back and record it was due to having forgotten under the pressure of a busy shift, a fact supported by Ms G.
77. Ms G said she had never been asked for her version of events that night, including the details of the conversation partly overheard by Mr S. Mr K had mentioned the error to her several times in a short space of time and had clearly been upset. She had sought to reassure him that he should not worry about the error because their priority was to ensure pain relief was administered to Mrs H. She confirmed he had recorded it in "the Drug Administration Chart, the DDA Book and notified the Doctor of the incident."
78. On 20 September, Mr K said he was again very busy having been instructed to perform several non-urgent tasks besides his normal duties. Having found the paracetamol still in Mrs C's medicine pot the following morning, he left it there because she was asleep, left the room to answer another resident's call bell and forgot to return. He subsequently found an undated entry on one of Mrs C's drug sheets stating "please state dose given – do not give paracetamol as well as co-codamol" initialled by Ms P, which he did not recall being there at the time he administered the medication.
79. Mr K said his handling of Mrs B in October 2005 at the O Care Home was not due to carelessness. She looked as though she was about to fall from the edge of a chair and he had chosen the less easy option in her best interests because he had wanted to save her from injury. It would have been easier for him to deal with the matter with the help of a colleague, but there had been no time to call for assistance and he had transferred Mrs B to a wheelchair for her own safety.
80. Whilst wheeling Mrs B to her room, taking care that she did not hit her arms against the doorway, she had started talking loudly and then started screaming as they got to her room. Mr K did not think he had caused her any pain: he knew her response to pain was to cry and that she sometimes screamed for no reason. Three other members of staff had arrived and he left Mrs B in her room with the door open while he received a hand-over from a colleague. He fully accepted and still accepted he could have handled this incident differently and would have been happy to complete the additional training offered at the conclusion of the investigation if his dismissal had not subsequently prevented this.
81. Mr K was unaware that his previous employer, AC Ltd, had reported him until he received the letter from the Respondent, by which time he was already in post with BUPA. When notified his name was provisionally included in the PoVA list, the reason for this was not immediately clear to him and he did not understand that this meant that he could not work with vulnerable adults as a nurse. He had never heard of PoVA and PoCA before he received the letter dated 23 June 2005. He did not grasp that he should have informed BUPA that he was listed until the time they investigated the lifting incident in October 2005. Furthermore, BUPA's claim that they had issued a booklet "Your working Guide to BUPA Care Services" to all staff earlier in the year, which had informed staff of the PoVA requirements was not supported by any record that Mr K had received this at that time. He was not aware that he should not be working until he read the BUPA handbook, which he did not receive until 2 November 2005, 2 days before he was dismissed.
82. He did not declare his provisional listing because he did not realise that he was supposed to inform his employer or that he was prohibited from working with vulnerable adults. He had understood that something was the matter and had sufficient insight to realise it was too complicated for him to understand, so soon after receiving the letter of 23 June 2005, he had telephoned the PoVA help line. In spite of this enquiry, he still did not fully grasp his position or its consequences.
83. For the same reason he did not initially inform his substantive employer the NHS Trust that he was provisionally listed. It was not until his dismissal by BUPA that he understood he could not work with vulnerable people in a private care home setting. However, it did not occur to him to inform the Trust because he simply did not see that it was relevant to his substantive post. He denied the Respondent's claim that, in March 2006, an NHS Trust considering employing Mr K had been told about his provisional listing but he had said his name was due to be removed. He had made no such application for work and no such claims about being removed from the list. On 23 February 2007 the Respondent had confirmed it had been under a misapprehension Mr K had applied for a new job with an NHS Trust whilst he was listed, but subsequently understood that the queries raised with the PoVA team were by his existing employer, the Trust for whom he worked until 2006.
84. Even when it was confirmed that his name was included in the PoVA, PoCA and Education Act lists, he did not fully understand the implications in terms of his ability to work as a nurse. However, he now fully understood the meaning of the lists, the reasons for his listing and the limitations this places upon him in terms of his employment.
85. In mitigation, Mr K relied on his character references. Ms LJ who worked as Mr K's line manager for two years at BUPA stated she had found Mr K to be "a highly capable and responsible worker, neither receiving complaints from staff or patients about his conduct…he always conducted himself in a very professional manner, he was very effective at his duties; he was efficient, dedicated and hard working." Dr Pal, who works for the Trust and had worked with Mr K for 6 years, stated that Mr K "…was able to build a good therapeutic relationship with patients and kept in contact with them as required. He often brought patients to the clinic when they did not have transport or they had difficulty in remembering the appointment dates."
86. Mr K said he had since been better informed, with considerable insight in to his behaviour and the consequences of his actions. He had reflected on and learnt from his actions. He would therefore be better able to perform his duties as a nurse to a high standard in future. He fully understood and accepted that in September 2004 he should have checked his patients' notes thoroughly prior to administering drugs, to ensure he gave correct medicine in the correct dose. In future he would always do this and make it his priority to record all his actions and other relevant information appropriately. Even if pressed for time because of other clinical demands, in future he would always seek further clarification, ask for assistance and even seek training if he felt that he was not fully competent to complete any particular task, or if he felt that his ability to perform his professional duties to a high standard might be impaired for any reason.
87. As a result of his listing, Mr K had retired from his substantive nursing post earlier than he had intended. His current income was less than his previous earnings, consisting solely of his employer's pension and wages from working in a bar. If he remained on the list he would almost certainly have to sell his house and return to his original home overseas, thereby increasing his difficulties in supporting his family who are in great financial hardship.
88. In the event of a successful appeal, Mr K would, at the earliest opportunity, seek training in those areas where he had failed. Despite his willingness to engage in this training before, this had not been possible while he was not working as a nurse and on a reduced income. He was full of remorse for his actions and had gained considerable insight into them. He would not put himself in the same position where he could make the same mistakes again because he did not intend or need to work in private care homes ever again.
89. He was not a danger to vulnerable adults and none of the allegations, admitted or otherwise, related to his experience as an RMN in the NHS over a 30 year period, save for his failure to mention his provisional PoVA listing, which did not, in fact, in itself prevent him from working in the NHS. He had never worked with children, nor did he wish to do so. His principal wish was to clear his name, pay off his mortgage and retire in two years with a clean record.

Conclusions and Findings

90. The two part process required by s.86(3) requires us to consider firstly whether or not Mr K was guilty of misconduct that harmed, or placed at risk of harm, a vulnerable adult. Taking the analysis in Mairs that "in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have know what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling", the principal basis for judgement must be the rules and guidance relevant to Mr K as a nurse registered by the NMC.

The drug errors and other alleged misconduct on 4 September 2004

91. Mr K admits administering MST, which was additional to the medication contained in the syringe driver. His claim that he was told by Ms J that Mrs H was still being prescribed MST indicates his error was therefore either the result of confusion, negligence or a deliberate act.
92. Mr K conceded that by any professional standard of nursing he should have checked, regardless of what Ms J told him, and that he should have recorded his error when he discovered it. He told us that he would not have given the MST had he known it had been discontinued. There is evidence of a continuing failure to check the MAR Chart, despite the initial error with the MST on 4 September. The administration of MST in itself was, by Mr K's own admission, unacceptable, and the failure to record that fact (or in addition to record the administration of Oromorph) was unprofessional and unacceptable behaviour amounting to misconduct.
93. We note Mr K's claim that, as an RMN, he was therefore less knowledgeable about medical nursing. But he is a very experienced nurse of 30 years and there is really no excuse for such basic errors in medication administration. This was unprofessional judging by the standards of conduct required by the NMC Code and guidelines. If he had checked the true situation he might have given Mrs H Oromorph instead which is a faster acting pain relief. We note he felt he was under pressure to carry out his duties to meet the needs of other residents or their relatives, but this does not exonerate him. Regardless of any need to respond to the needs of other residents, his first professional priority was to administer controlled drugs in accordance with proper procedures, which should have been familiar to any trained nurse regardless of their professional specialism. The administration of controlled drugs is governed by a double requirement to check both the MAR Chart and the controlled drugs register and he clearly showed that he knew these procedures. But he only carried out the second part of the process, i.e. to check the controlled drugs register. It was a serious and significant omission not to check the MAR Chart for any drugs at all and especially controlled drugs, and one that he himself now recognises.
94. We are also concerned that he did not sign for the Oromorph that he administered later that day and the following day. This indicates that his failure in recording on 4 September was not a one off incident, but part of a course of incorrect behaviour that continued with the second incident on 20/21 September 2004.
95. We are satisfied that no actual harm resulted from these acts or omissions. In the narrow clinical sense no harm may have resulted from the administration of MST since this is a slow acting drug and would therefore have been medically of little effect. There was no overall clinical harm as such in that Mrs H was dying and the drugs Mr K gave her were all derivatives of morphine that were additional to the morphine contained in the syringe driver.
96. However, there was a potential risk of harm arising from his failure to record in the MAR Chart. This created the possibility that any nurse taking over from him would not have realised what had happened without checking the controlled drugs register, but would not then have realised that an additional dose of MST had been given because it was absent from the MAR Chart. It is arguable that any competent nurse would have followed proper procedures and would therefore have checked anyway, so this might not be regarded as sufficiently serious to satisfy the threshold of risk of harm. However, the real risk was in giving a drug that was no longer being prescribed. The outcome might well have been very different if another type of drug had been administered: the risk of harm is of much more serious consequences in terms of Mrs H's experience of her final illness and her end of life care. Harm can also include neglect, which may arise from the failure by a registered nurse to meet the essential care needs of a client, for example through the inappropriate withholding of medication or medical assistance.
97. There is nothing to suggest that it was impossible for Mr K to carry out his proper professional duties. It may well have been more difficult for him to do so because he was obviously put under a great deal of pressure, such that a mistake was almost inevitable. However, it was not impossible for him to correctly administer a controlled drug and everything else is secondary to that priority.
98. We therefore find Mr K guilty of misconduct on 4 September 2004 that led to the risk of harm to Mrs H.

The drug errors and other alleged misconduct on 20/21 September 2004

99. On 20/21 September Mr K gave the medication as prescribed to Mrs C. The recording on the MAR Chart of both prescriptions for Co-Codamol and Paracetamol is entirely the responsibility of the prescribing doctor, who should have made it clear that both should not have been given together. As far as the note signed by Ms P is concerned, Ms J said she could not be sure it was there or not and gave us the impression that it could well have been written after the event. Ms J herself gave both drugs and recorded that fact in the MAC. However, whether or not Ms P placed a note to that effect on the MAR chart and whenever she did so is not the point. It was not her responsibility as Matron, but it is the duty of a doctor to ensure there is no confusion in the administration of drugs. There was an error in prescribing and Mr K simply dispensed the drugs written up for Mrs C: the poor practice was not his, but the doctor's.
100. Mr K dispensed both drugs at 8 am and at 10 pm and recorded both properly. Giving both drugs would have meant a higher than desirable dose of 1500 mg rather than the correct dose of 1000 mg, but no actual harm resulted from this incident because Mrs C simply did not take the drugs. The real problem with this event is his failure to dispense with the drugs and his failure to record the fact that Mrs C did not take them. This might be said to give rise to a risk of harm because it would distort the perception of subsequent staff about the correct amount of drugs to dispense for Mrs C. Whilst the situation is less clear and perhaps less serious, nevertheless, taken together with the earlier incident on 4 September these failures indicate a pattern of behaviour in a short period of time that fell below the professional standards to be expected of any nurse.
101. Those being cared for by any medical professional have a right to expect proper standards of care, which includes the safe administration of drugs, especially controlled drugs. Without adherence to appropriate safeguards, there are clear risks of giving the wrong drugs with potentially damaging consequences ranging from injury to suffering and pain. It is not a argument to say 'I made a mistake, but it wasn't a serious error because no actual harm resulted': the risks lie in the sloppy practice this represents and the attendant potential for harm in a repetition or in setting off a chain of errors by other staff.
102. We therefore find that Mr K was guilty of misconduct in relation to these events in particular when taken together with the events earlier that month.

Working whilst provisionally listed

103. Mr K's referral to the POVA list occurred after his dismissal for gross misconduct in respect of both drug errors on 29 November 2004 and after the disciplinary hearings. Ms F told him at the time this would happen. But he was not actually provisionally listed until 23 June 2005. After this length of time it is just possible he could have forgotten the reasons for the listing, so his claim not to know why he had been referred in the first place might carry some plausibility.
104. The Respondent argued that it was implausible to suppose that a man of the Appellant's obvious education and intelligence did not understand the information provided to him with his listing letter. However, we have some concerns about the way in which the letter notifying Mr K of his provisional listing is written. It makes reference to not working but it is not phrased in unambiguous terms, i.e. it does not state in clear and direct terms to the reader 'once you are provisionally listed, you cannot work.' It does state that work is prohibited once confirmed on the list but does not make it clear that if the recipient is presently employed in a position in contact with vulnerable adults he or she cannot continue to work in that position, merely that they may not be offered such employment.
105. Mr K's mistake was in not clarifying precisely what his position was, although we have some reservations about the credibility of his statement that he was misled by the POVA team. He said the officer knew he was in employment and should have told him to tell his employer that he was provisionally listed, which is of course correct. Nevertheless, this was in the early stages of the POVA scheme and it is possible that there was a lack of clarity in the advice given. There is certainly no proof either way about what he was told, since we heard no evidence from any member of the POVA team about the general policy, the training given to staff or with regard to the specific conversation with Mr K. We accept Mr K's version of events.
106. This case was not unduly complex in that it involved just two incidents as the basis for the main allegations. Nevertheless, Mr K then spent a total of a year on the provisional list. By any measure this cannot be said to represent a timely process: indeed it suggests a rather cumbersome and unduly prolonged way of dealing with a relatively straightforward case. This lengthy timescale must have caused Mr K a great deal of distress and tension in a situation in which he received very little information other than the correspondence from the POVA team.
107. By the end of March 2006, Mr K had spent 9 months on the provisional list, which in itself gave him a right of appeal. However, on 29 March he was confirmed on the list, thereby giving rise to the right of appeal he eventually exercised on 9 June. The whole process from his dismissal and referral in November 2004 to the date of this appeal therefore effectively took over 2 years. It seems hardly surprising, therefore, that he said he did not realise how serious his position was until he received the letter from the Trust.
108. Mr K also thought the listing was not relevant to his substantive post in the NHS. He was under the impression that it related merely to care homes and, significantly, that it arose from the more serious cases of abuse and neglect highlighted in the media. He said he had never heard of the list before he received the first letter and did not regard drug errors as equivalent to the kinds of appalling cases he had read or heard about.
109. We have some reservations about the amount of clarification Mr K was given orally, as well as in writing given the degree of ambiguity in the phrasing of the notification letters. It is impossible to draw any firm conclusions therefore about his state of mind at the relevant time, although it seems likely that his level of knowledge and understanding of his position was not sufficient to impel him to take the correct course of action.
110. Mr K was already provisionally listed some time before he says he received the BUPA Guide for Staff, which might well have given him the necessary clarification. However, we were not supplied with a copy of this and are in no position to judge whether or not this was the case. After sending in his observations in August he had heard nothing from POVA for 9 months. He also says he did not know about BUPA's referral following the manual handling incident regarding Mrs B in October. He did not wait for the outcome of the disciplinary hearing but had taken the right course of action by choosing to resign that day as soon as he realised his true position.
111. In the absence of fuller evidence from BUPA, we have placed greater evidential weight on the letter from the POVA team, which we regard as more likely than not to have been conflicting and confusing to someone in Mr K's position. He was extremely isolated by this point and received no counselling from his line manager or any colleagues and does not appear to have regarded it as possible to discuss the matter with any colleague or anyone other than the POVA officer. This is somewhat understandable: he told us he felt ashamed and frightened and given that he was not working in a hospital but a community environment he must have felt he had few independent sources to call upon. If he had discussed his position with someone, no doubt he would have realised what a serious situation he was in. He was also someone whose experience was of working long hours with perhaps not many opportunities to form the kind of relationships with colleagues that he might have drawn upon in such a crisis.
112. There is also an important cultural dimension here in his position as the eldest son of a family who live overseas at a considerable distance from the UK. They regard him as the head of the family and he has long been responsible for their financial support. The consequences of these events must have had a profound effect on him and upon his sense of responsibility in this context. Indeed, the outcome of this tribunal is likely to have an effect on his ability to continue to support them.
113. There is no evidence that he received any information or advice other than that provided by the POVA team and by BUPA. In consequence, he found himself professionally and socially isolated in the first year the scheme was introduced with accompanying media coverage highlighting the most serious cases. This does not excuse him, but it does make his reaction understandable in these circumstances.
114. Mr K has regarded himself as a hardworking and useful member of his profession and there is no doubt that he was regarded highly in his substantive post as CPN. In his part time role he performed satisfactorily for much of the earlier period and it seems to have been in recent years that he got into difficulties, with the result that because of his family responsibilities he may have been blinded to the consequences.
115. We are not satisfied that the requisite standard of proof has been met by the Secretary of State in this regard and conclude that there has been no misconduct by Mr K in respect of his provisional listing.

Other allegations

116. Some of the evidence was uncorroborated hearsay and some of it required further clarification. Some of it contained mistakes. Further documentation, such as the extracts from the drug error book referred to in oral evidence did not support the assertions made about the number or frequency of errors made by staff. Some supporting issues of conduct and or suitability relied on unsubstantiated and un-investigated allegations or those that were not pursued. We did not attach great weight to, for example, the allegation that Mr K forced pills and water in to a vulnerable adult's mouth causing her to cough and choke since this was not taken in to account during the disciplinary proceedings conducted by AC Ltd and we accept it remained uninvestigated and uncorroborated.

Suitability

117. The issues in this appeal centre upon Mr K's misconduct in two care homes. We express no concerns and make no observations or draw any conclusions about his conduct or suitability in respect of his substantive job in the NHS. Furthermore we note that there have been no adverse comments about his performance as a CPN and the references we have seen contain no criticism of him whatsoever.
118. Mr K should also take comfort from the fact that we have seen no evidence of callous disregard on his part for those for whom he was caring, and there is no indication that he has been, or ever would be, malicious or abusive towards them. In that sense he is right that he does not fall into the category of professionals about whom there has been extensive publicity in recent years. However, as he is now aware, the POVA list is maintained for a much wider category of misconduct.
119. We heard nothing of any substance to suggest that from 1998 and for the first five years of his career as a part time employee in care homes was anything other than uneventful until 2003. From that point onwards his practice might best be described as having become somewhat casual and sloppy. His provisional listing may have led to a tightening up in his practice standards since there was only one minor lapse in October and there were certainly no more drug errors. He quite properly resigned in November 2005 once it was known to BUPA that he was on the list.
120. The allegation on 4 September is a serious one and taken together with the failures on 20/21 September amount to a cumulative series of events that indicate a serious pattern of poor practice such as to present a risk of harm to the residents of the care homes in which he was working.

Regardless of the drug errors, we also heard some evidence of other incidents involving Mr K's employment elsewhere. On 18 January 2005 Ms C, the Home Manager of BUPA wrote to Mr K to confirm the outcome of their meeting about alleged incidents regarding residents Mrs G and Mrs E. She exonerated Mr K from responsibility for either incident, noting in particular that Mrs G "commonly behaves in an aggressive manner with many members of staff which is consistent with the way you say she received that injury." Nevertheless Ms C noted his documentation of events surrounding the skin tear to Mrs G "were not as descriptive as they should have been and I would urge you to make sure that you make full and clear notes in residents files in the future." He was also warned about his practice of leaving cot sides up when delivering intimate care to residents and Ms C stated "I do not believe that this is the appropriate way in which to deliver intimate care and on this occasion may have been a contributory factor to the injury."

121. So, shortly after the incidents in the R home in September 2004, and in a separate home run by BUPA one month later in October, Mr K was still not recording events properly and was suspended as a result.
122. However, after he was provisionally listed in June 2005, there is only the manual handling incident regarding Mrs B on 2 October 2005. Mr K told us that she was sliding off and there was a wheelchair nearby: he made a judgment and took the risk of moving her on his own. Whilst this was strictly against the manual handling procedures in respect of Mrs B, nevertheless he made a judgment about the respective risks involved and showed a degree of care for her in the choice he made. Mr K was suspended pending an Adult Protection investigation. The incident was investigated by BUPA and a referral made to the POVA list pending the outcome of that investigation, which in turn led to the discovery that Mr K was on the provisional list and his ultimate dismissal. But for that latter factor, Mr K would have just had the final written warning for "serious negligence in the performance of duties where you transferred a resident incorrectly, which may have caused discomfort to that resident" and for not having undertaken mandatory training for Manual Handling. There was nothing to substantiate the allegation or that she received any injury thereby. There was no evidence to dispute his version of events or the circumstances in which he found himself, and this is the only incident since the listing. The final warning was an appropriate response in circumstances where BUPA knew Mr K had already been dismissed from AC Ltd and listed provisionally.
123. Mr K presented as a man who felt isolated from colleagues by virtue of his part time working patterns, his earlier whistleblowing and his subsequent treatment. Working only at weekends and at night would have given him limited opportunities to interact with colleagues. Despite the fact that the Public Interest Disclosure Act 1999 was designed to protect whistleblowers and requires employers to provide them with support, nevertheless, it is clear that many are unaware of its provisions and certainly AC Ltd does not appear to have been aware of it or done anything to support Mr K thereafter. The overall climate in the R home cannot therefore have been a particularly happy one.
124. It is also clear to us that Mr K is something of a scapegoat in a situation at the R home in which the standards of practice generally fell below what may be regarded as acceptable. Mr K rightly pointed to other errors made by other staff such as Mr P, that were not the subject of such stringent measures as applied to him: it was clear from the Drug Error Book that Mr P had been responsible for more than just one error himself. In her oral evidence Ms Jones herself stated that she regarded 30 minutes as sufficient to ensure that the pain relief was taking effect. She clearly expected Mr K to contact her in the event that he had any further difficulty with changing the syringe driver, but, neither as Mr K's line manager nor the effective head of the home in Ms P's absence did she regard it as her managerial and supervisory responsibility to contact him.
125. Throughout the process Mr K admitted to mistakes in signing for, administering and disposing of medication and failing to keep proper records of these events. He admits that he moved a resident on his own, which was against her care plan. He also admits that he continued to work with vulnerable adults after he received a letter informing him that his name was provisionally included on the PoVA list, albeit that he only realised the consequences of this much later. He accepted responsibility for these actions, which led to his being included on the lists.
126. We note that NMC registration must be renewed annually by signing a form to show the nurse has met post-registration education and practice (PREP) requirements. In order to comply with professional standards, a nurse is required to undertake a minimum of five study days per year, although it is common to undertake much more training than this. There is little evidence of Mr K having undertaken such training or that he was assisted to do so by his employers in the care homes. Nevertheless Mr K claimed some level of competence and experience in his job application form for BUPA in 2003. This stated he was a manager in his own right and an independent mental health practitioner for both generic and elderly care, with a caseload of about 60 patients and providing psychiatric cover for 4 GPs across 3 surgeries.

We are not convinced by Mr K's claim that he was not fully competent to undertake work required of him in a care home providing nursing care. It is inevitable that nurses are on occasion required to take responsibility for situations and unrealistic to suppose that any qualified nurse may avoid responsibility in the course of his job.

127. Mr K left his NHS job in December 2005 and took formal retirement as a nurse with effect from March 2006. As would be the case for anyone so listed, he therefore had little or no opportunity after December 2005 to demonstrate his suitability other than through the evidence he gave to us. We are therefore reliant on what he told us about his situation since then and his view of the future. We note that he has made no attempt to enrol on any training courses despite the now widespread climate of expectation about continuing professional development and the fact that re-registration is dependent on professional practice standards. He claims this was due to lack of funding, but we are not convinced that there is a complete absence of courses at low cost that he could have afforded or even nil cost, knowing he was facing this appeal hearing.
128. He told us that he would seek training and indeed would seek supervision. Nevertheless, in reality in some situations he probably will not be supervised: it is the burden on professionals responsible for the care of others that they must make decisions and judgments sometimes in emergencies or in difficult situations. Unfortunately this leaves the impression that Mr K is putting the onus on everyone else. Whilst he is undoubtedly extremely contrite and indeed upset about these events, he has done nothing to demonstrate his future suitability to work with vulnerable adults. We are not persuaded that the public would have the necessary trust and confidence in him as a professional.
129. As far as the POCA list is concerned, we agree with the Respondent's submission that children are equally vulnerable to the risks posed by failures properly to administer medicine, or to keep medical records, and to comply with procedures such as manual handling procedures. In fact, the calculation of dosages is more complex with children and the maintenance of correct records is of great importance: there is less scope for sloppy practice with children and the risks of harm are greater in respect of incorrect doses. We would have great concern with this background if Mr K were to be given the responsibility for dispensing to children. The risks with regard to vulnerable adults are clear and we accept that the same considerations apply with respect to the placing of the Appellant on the PoVA list as apply directly to the PoCA listing. But the inherent risks with children are so much greater and Mr K therefore cannot be trusted with the care of children, regardless of his future intentions. We note he does not wish to care for children, but that is not the point here.

Observations

130. We suggest that the POVA letter be clarified to make it clear that any recipient on the provisional list should take steps to make sure that they do not work, i.e. do not care for, in any setting involving vulnerable adults (and/or children). It might also be helpful if it was made clear that anyone so listed should inform any relevant employers immediately, and possibly ask to be transferred to non care duties pending the outcome of a listing decision. It might also assist to have a full list of sources of help at the end of the letter, including the Royal College of Nursing.
131. The training support and supervision Mr K had whilst at the R home was, on the face of it, woefully inadequate. It does not excuse what he did, but neither did it enable him to carry out his duties effectively. If staff are not directly appropriately qualified there is additional training that can be accessed. Merely stating that there has been previous induction training is not enough and it is the responsibility of a new owner on transfer to check whether members of staff have actually received this, at what level and whether they are suitably trained and qualified to carry out their duties accordingly.
132. Ms J's own description of her practice and the records we examined showed shortcomings and a lack of sympathy/empathy with residents and staff. As his line manager, she should have displayed a more pro-active approach: she left him alone after a single demonstration of the syringe driver and did not trouble herself to check up on him thereafter. Indeed, it was not until a week later that she discovered a drug error had been made and during a period in which she had overall responsibility for the home in Mr P's absence. As far as we could establish from a more recent copy of the Drug Error book that medication errors were not as infrequent as had been suggested.
133. As a deputy manager Ms J also did not address the evident dysfunctions within a home in which the staff group were obviously not 'gelling' and, as indicated by Ms G, there were cliques that were undoubtedly undermining the quality of care being received by the residents. She failed to deal with the problems of a member of staff who was isolated: she raised the concerns about paranoia even though she had not seen the notes herself and the concerns about Mr K's practice, but she did not discuss either of these matters with Mr K or seek to rectify them. We did not have the benefit of any oral evidence or a statement from Ms P, but on the face of it she did not investigate these matters correctly either. There was no evidence that any staff appraisal was carried out by either Ms J or Ms P and the culture in the home indicates there was not a positive approach to the management of staff generally. In this situation it is understandable a member of staff might well find it impossible to consult with a line manager about problems, and one in which Mr K was already marked out as someone prepared to report other staff including Ms J, highly unlikely that he should do so or go to her.
134. The management of and care at the R home also left us with the impression that Mr K was something of a scapegoat for poor practice generally. It is possible that the problems he got himself into might not have happened if the owners of care homes with a number of high dependency residents employed nursing staff with a background and qualifications more appropriate to those residents. It would seem only right that residents and particularly those who are terminally ill, ought always to have access to qualified general nursing care immediately available rather than merely on call. The practice of leaving an RMN as Nurse in Charge, particularly at night, is unlikely to be acceptable to service users or their families in a home where the level of expertise and experience needed to care for residents with syringe drivers, colostomy bags, and/or catheters indicates that they should receive specific training. If it was simply a residential home it might be acceptable, here it was not. There is an element of misleading the public into thinking that if a brochure states the home employs 'registered nurses' then there is a legitimate right to expect they will all be trained in general nursing to an adequate standard. Not stating what they are registered in appears to be somewhat disingenuous. At the very least there is a need for greater transparency by homes for vulnerable adults to demonstrate who they are employing, what qualifications and what this means for the care of high dependency residents.
135. At least two reports in 2004 and 2006 respectively have highlighted the poor quality of care in an unacceptably high number of homes ('The management of medication in care services 2002-03', National Care Standards Commission 2004 and 'Handled with Care? - Managing medication for residents of care homes and children's homes', a follow up study, Commission for Social Care Inspection, February 2006). Our expectation is that residents should be able to expect and receive a standard of general nursing suitable to their needs, it is what they are paying for. Problems occur in employing the wrong type of nurse, who is then faced with difficult situations and is in turn in charge of unqualified staff.
136. The events at the R Home indicate little evidence of good practice in end of life care.

Listing

137. We note the issue of public confidence where a person is confirmed on the PoVA List and consideration is then given to their inclusion on the PoCA list. In this case there was an exercise of control over vulnerable elderly persons, which put them at physically disadvantageous position. People are vulnerable whenever their health or usual function is compromised. This vulnerability increases when they enter unfamiliar surroundings, situations or relationships. Although illness and disability at any age can make people vulnerable, some groups of clients are more vulnerable to abuse than others. Those who are physically frail or who have mental health problems, people with learning disabilities and children all require special consideration to protect them from abuse.

It is not inevitable that if the appeal is dismissed under section 86 of the CSA 2000 an appeal under PoCA 1999 section 4 must also be dismissed, but public confidence in the provision of services to children would be undermined if it became known that Mr K was employed to work with children, given the fact that he was prohibited from working with vulnerable adults.

Decision

139. We conclude that the decision of the Secretary of State to bar the Appellant on the grounds of misconduct and unsuitability was a proportionate one, based on the evidence before her. We have carefully reviewed all of this evidence and have arrived at the same conclusion in relation to the drug errors and his appeal against the POVA listing is dismissed. For the reasons set out above, his appeal against the POCA listing is also dismissed.

This decision is unanimous.

29 March 2007

Ms L Goldthorpe Chairman

Dr J Lorimer

Mr P Sarll

Note:

In 2004 the National Care Standards Commission published a report "The management of medication in care services 2002-03", which identified significant deficiencies in performance and practice and was instrumental in focusing attention on the need for homes to take urgent remedial action and led to training materials and support for care providers through written guidance.

In a follow up study published in February 2006 by the successor body, the Commission for Social Care Inspection,entitled 'Handled With Care? - Managing medication for residents of care homes and children's homes, stated The value of medication is the benefit it provides children and adults in improving the quality of their everyday lives. Appropriate medication, taken as intended, has the capacity of sustaining and maximising people's independence and personal dignity. The management of medication in care homes and children's homes is therefore one of the most important aspects of care for some of the most vulnerable people in this country." The evidence from this report is that homes are still not placing enough importance on this critical area of care." Correct administration also relies upon the accurate maintenance of records to state which medicines are to be given at a specified time and whether any other care worker has already given them. Both of these elements, training and record keeping, have been shown to be causative factors in poor standards of practice.

The report has also identified that when a care home is failing to meet the medication standard, there is a high probability that the service will also be failing in other areas such as staff training.