England and Wales Care Standards Tribunal

 


DG v Secretary of State [2007] EWCST 824(PVA) (05 July 2007)

DG

-v-

Secretary of State

[2006] 824.PVA

-Before-

Mr S Oliver

(Nominated Chairman)

Ms J Cross (Specialist Member)

Mr P Sarll (Specialist Member)

Decision

Heard on 4 June 2007 at the Care Standards Tribunal, Pocock Street, London.

Representation

The Appellant appeared in person and was supported by her father. Both gave evidence.

The Respondent was represented by Ms L Busch of Counsel.

Appeal

1. This is an appeal by DG against her inclusion on the PoVA list. The decision to place DG on the list was made in a letter dated 10^th October 2006, having been provisionally listed on 21^st November 2005. The basis of the listing was that the Appellant was guilty of misconduct causing harm to vulnerable adults in that she pleaded guilty of theft on 1^st October 2004.

Preliminary Matters

2. Prior to the hearing, one of the potential witnesses for the Respondent, a Ms Kitteringham, was involved in a road traffic accident. The Treasury Solicitor sought an adjournment of the hearing to enable this witness to attend on the basis that it was said that her evidence was "crucial to enable the Tribunal to make a fair determination of the issues in this case". That request to adjourn was refused both times it was made.
3. On the day of the hearing, the Tribunal enquired whether or not Ms Busch sought to renew her approach to adjourn. She confirmed that she did not and was intending to rely only on the criminal conviction in 2004 and not prove whether or not DG had been involved in any other thefts from residents.

The Law

4. This is an appeal under Schedule 5 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 and Section 86(1) of the Care Standards Act 2000. The conditions required to be met before an individual is included on the Protection of Vulnerable Adults list are set out in section 82 of the 2000 Act. As set out in section 86(3) of the 2000 Act, the Tribunal needs to be satisfied both that the individual was guilty of misconduct and that the individual is unsuitable to work with vulnerable adults. If it is not, it shall allow the appeal or determine it in the individual's favour.
5. In the case of Kalchev v Secretary of State for Education And Skills [2005] 589.PVA, the Tribunal held (at paragraph 17) that the duty to satisfy the Tribunal as to suitability switches to the appellant if the Tribunal is satisfied that the person has been guilty of misconduct. We agree, and adopt that approach in this case.

The Evidence heard

6. We heard evidence from Mr. W, P.C. Brown, DG and her father. P.C. Brown explained to us that he was a serving police officer and that on 9^th July 2004, he attended MG House following a reported theft. He spoke to Jane Kitteringham, the manager of the home. He also spoke to KW, a resident at the home whom he understood was 82 years of age and virtually housebound. He was informed that over the past couple of weeks, KW had in excess of £300 stolen. We were told that on 14^th July 2004, a further report was made to the police that more money had been stolen. One of P.C. Brown's colleagues attended MG House and a report was made that another £140 had been stolen. On 20^th July 2004, a covert camera was installed in KW's flat. On 19^th August 2004 P.C. Brown was contacted by someone from MG House and informed that a further sum of £20 had been stolen from the home overnight. He was also informed that £20 milk money had been stolen from outside another resident's flat overnight. P.C. Brown attended MG House and took the video tape and viewed the tape. From his recollection, DG took KW's purse out of the handbag and then took the money from her purse and put this back into the handbag.
7. P.C. Brown made some further enquiries and he interviewed DG on 20^th August 2004. DG admitted taking the money from KW, although she had denied this at first. She also denied taking the £20 milk money which had also been stolen. On 28^th September 2004, DG was charged with theft and pleaded guilty on 1^st October 2004. DG was ordered to pay £20 compensation and costs of £34. She also received a community punishment order for 120 hours community service.
8. Mr. W told us that his mother is 88 years of age and has been a resident at MG House since 2000. His mother suffered a stroke that has left her physically impaired. She receives 35 hours care per week from carers at the home and is very appreciative of that care. She requires assistance with a variety of tasks including washing, dressing, getting in and out of bed, preparing meals and making drinks. Although she is physically disabled, she is mentally very alert.
9. Mr. W said that his mother has always been very careful with her money. He said that she is mentally very sharp and has always been careful with her finances. He said that she always knows the exact amount of money that she has in her purse at any given time and that she does not leave her money lying around and generally is not known to lose money. He told us that his mother uses cash at the home to purchase raffle tickets, birthday cards, meals and other items that may be on sale from time to time at the home. He said that she usually puts her change back into her purse and always knows exactly how much she has spent. Money arrangements, he explained, were sorted between him and his mother but not in front of her carers.
10. Mr. W told us that he visits his mother on a regular basis. He said that in 2004 he used to draw out his mother's pension from the post office on a monthly basis. His mother kept two purses in her handbag and she kept her handbag on the side of the armchair in the front room of her flat. She had a brown purse that she used for emergencies. Before the theft his mother used to keep £305 in her brown purse for emergencies but otherwise it would be left untouched. He would always check it for her whenever he visited. He explained that because his mother was brought up in an age when people did not have credit cards she always liked to keep cash in case she or any member of the family needed anything in an emergency. His mother also had a red purse which was her everyday purse and she used this one for general purchases for food, toiletries etc. He said that she always knew what was in there and how much she had spent.
11. Mr. W told us that on 4^th July 2004 he visited his mother at MG House. On 7^th July 2004 he received a call from his mother who was distressed. She told him that the note compartment of her purse was empty. There should have been £260 in notes in this purse. When he visited his mother later that day, he looked at his mother's other brown purse which always contained the sum of £305 but found there was only £120 in that purse.
12. Mr. W said that approximately 2 to 3 weeks after another incident a surveillance camera was installed in his mother's flat. Some time later, the police informed him that someone had been arrested regarding the theft of more money from his mother
13. Mr. W went on to say that the theft of money from his mother has had a huge impact on her. He recalled that his mother told him that she felt scared and vulnerable after she reported the theft as she did not know what the reaction would be from the person who had stolen her money and was worried at the possibility of recriminations as a result of her reporting it. He said before this his mother was trusting and confident and used to leave the front door to her flat unlocked as she knew and had always trusted her carers. His mother now always insists that her front door is locked.
14. Mr. W said that even though he has always left notes for his mother detailing how much money he has left for her, she now always double checks that this has been done. She asks him to confirm that he has left a note in her purse to let her know the amount of any money that he has put there and he records the date that the money is left. Although his mother used to check her money before this incident, it has generally made her a lot more cautious. He said that as his mother is in a completely vulnerable position and totally dependent on carers, he feels that her trust was betrayed by someone who she relied on.
15. DG told us that she thinks that her name should be removed from the PoVA list because although she was found guilty she 'put her hands up to that, walked out on her job, paid the lady back, did some community service and hung her head in shame for years'. Also she told us that she was very young and made a stupid mistake.
16. DG said that this incident had happened a few years before it was decided that she would be put on the list. She said that she has no intentions of working with the elderly again, although finding work has been difficult. She had recently started work as a trainee dental nurse. She feels that being put on the list would be punishing her twice over for something she has already paid for many times over. She feels that it is unfair that she is on the PoVA list and that she is being harassed when she is trying to get on with some sort of a future.
17. DG told us that before the incident she had suffered with MRSA, had just broken up with her long-term boyfriend, had had a serious argument with her mother (with whom she did not live) and was very mixed up at the time, throwing herself into her work.
18. DG's father said that he had brought up his daughter as a single parent and that they are close. He was surprised by what had happened. He was very concerned when DG contracted MRSA and found caring for her at that time very difficult as his sister had died of a similar illness. Mr. G said that DG had always been a good child and that the year it happened was a 'roller coaster', a time of crisis for his daughter although they did not always speak about the stresses she was going through – it was only a while after it happened that DG spoke to him about it.

The findings of the Tribunal on the evidence

19. We start on the basis that we are only considering the theft to which DG pleaded guilty. There is no evidence to link her with any other theft and we have not considered them at all in reaching our decision. We appreciate that the conviction and inclusion on the PoVA List has had a profound effect on DG. However, that is not a reason for us to agree to remove her name from the List. We are satisfied that the theft to which she pleaded guilty is an act of misconduct. Misconduct brings an individual's suitability into question. As this was an act of theft, it raises issues of DG's integrity and honesty. An employer needs to know, especially in an environment with vulnerable adults, that they can trust an individual at all times.
20. We are concerned that DG does not appear to have fully appreciated that her integrity has been compromised and that it cannot be altered just because she pleaded guilty, paid back the victim and did community service. Unfortunately, it is not as simple or as easy as "forgive and forget". Vulnerable people need to be protected.
21. We are equally concerned that DG has not grasped the impact of her actions on the victim but rather has only seen it as the impact it has had on her.
22. Whilst we were sympathetic to DG's difficulties caused by the breakdown of her relationship, her MRSA and her age, we do note that she had two years' experience in a caring environment before this happened and so she knew what was expected of her as a professional and she knew how to behave. She was fully aware of the weight of responsibility on her shoulders. It was that trust put in her that she has violated. DG's actions had an enormous impact on her victim: it changed her feelings of security and means that she has to check her purse every morning. We are aware that DG's father brought her up properly to know right from wrong, so to act out of character, as she clearly did, somehow makes matters worse – she had a choice.
23. Given that we have started from the point that DG is not suitable to work with vulnerable adults, it is for her to persuade us that she is. We heard nothing to persuade us. Although we warmed to her as an individual and have some empathy with her, her lack of insight of the effect of her actions on the victim and the failure to understand that her integrity has been affected, do not help us conclude that she is now suitable, even though she was genuine in saying that she would not do it again: that is not sufficient.
24. We appreciate that, in her words, she is "not a bad person" but, again, that does not mean she is suitable to work with vulnerable adults. Until DG appreciates the seriousness of the situation and the impact of her actions on others, she will remain unsuitable. We are sure that she is able to provide physical care but an employer would, rightly, have doubts as to her integrity and honesty. The reasons she has given for her actions are in the nature of mitigating circumstances and justification, not insight.

Conclusions

25. Given what we have said in the preceding paragraphs, we have come to the conclusion that DG has not persuaded us that she is suitable to work with vulnerable adults and so her appeal against inclusion on the list must fail.

Accordingly, our Unanimous decision is:

APPEAL DISMISSED

Mr. S J Oliver

(Nominated Chairman)

Ms J. Cross

Mr. P. Sarll

Date: 5^th July 2007