England and Wales Care Standards Tribunal

LLM v Secretary of State [2006] EWCST 833(PC) (07 November 2007)

LLM
-v-
Secretary of State
[2006] 832 PVA [2006] 833 PC
-Before-
Mrs Rosemary Hughes (Nominated Chairman) Mr Paul Thompson Mr Ray Winn

Heard on 15 and 16 October 2007 at 18 Pocock Street, London SE1 0BW

The Appellant appeared in person and was represented by Mr Lee Gledhill of Counsel.

The Respondent was represented by Ms Kate Olley of Counsel instructed by Treasury Solicitors.

D E C I S I O N

Appeal

Ms M appeals against the two decisions of the Respondent dated 6 October 2006 confirming the inclusion of her name on the Protection of Vulnerable Adults list (PoVA List) and also confirming her name on the Protection of Children Act list (PoCA List).

Restricted Reporting Order

This was made under Regulation18 (1) at a preliminary hearing on 17 January 2007. It was the panel's intention to continue this at the conclusion of the hearing and no application was made from either Counsel to the contrary. We therefore publish this decision under Regulation 27 in an anonymised form as is our usual practice in this Tribunal where appeals are brought under Schedule 4 and Schedule 5 of the Protection of Children and Vulnerable Adults and Care Standards Tribunals Regulations 2002 as amended where there has been no criminal conviction.

Preliminary Matters

Mr Gledhill told us that he was a direct access barrister with no solicitor being involved. The Appellant had asked him recently if she could call another nurse as a character reference.

Ms Olley commented that the Appellant had not complied with the Unless Order made at a preliminary hearing on 17 September 2007 and it was not now appropriate to introduce a new witness at this late stage.

We did not agree that there would be any prejudice or unfairness to the Respondent and gave permission for Ms DM to be called for the following day. A written statement from her was due to be faxed immediately but in the event it did not reach the Tribunal before Ms DM arrived on 16 October.

The Evidence heard

1. On 15 October, Ms Low confirmed her written statement of 2 October 2007. She had been the Matron of Beeches Home in August 2003. The Appellant had been working there as a registered nurse since January 2003. When she arrived, Ms Low found her to be 'bright, alert and competent'. She coped with training offered and appeared to do everything 'as I would have expected from a registered nurse with her years of experience. She gave no cause for concern during this time period.' Ms Low confirmed that the Appellant had served a three month probation period.
2. Ms Low told us that the Care Home had dual registration for 64 beds; the patients mostly needed nursing care and were in varying states of dependency. Several were diabetic including Mr D who had recently returned from hospital following surgery and was frail. The Appellant had been on night duty on the night of 19/20 August; she was the only registered nurse on duty that night after 2 am.
3. When Ms Low arrived at the home at 7am on 20 August, the Appellant told her that Mr D was ' a bit chesty' and Ms Low should keep an eye on him. Subsequently Ms SM, a care assistant told Ms Low that she was worried about Mr D. Ms Low found him to be deeply unconscious and after checking his blood/glucose level, she concluded that he was severely hypoglycaemic. He was taken to hospital for treatment and later returned to The Beeches. Ms Low said that she found his condition had deteriorated generally following the diabetic coma episode.
4. Ms Low made enquiries of the care assistants who had been on duty that night. They said that they had told the Appellant several times that Mr D was sick and that she should check him herself but she did not seem to take any notice of them. Ms Low would have expected a nurse to check on Mr D at least hourly in view of his condition. The Appellant had noted on her chart at 6.10am that Mr D was not responding to stimuli but had still failed to carry out a blood sugar test. Ms Low considered that the Appellant's failure to respond to requests from the care assistants amounted to a deliberate act not to go and care for a resident over a period of about six hours. The care assistants were making checks at two hourly intervals and it was their job to alert the nurse if they were anxious about a patient. Ms Low did not think the Appellant would learn from her mistake and Mr D could have died as a result of the coma.
5. Ms Low had suspended the Appellant and later dismissed her on the grounds of gross misconduct. She also reported her to the Nursing and Midwifery Council (NMC). Following a hearing on 30 November 2004, the Appellant was struck off the Council and informed by letter on 14 December 2004. The decision to place her on the PoVA and PoCA Lists and List 99 had followed in 2006.
6. Ms Sharpe also gave evidence on 16 October. She confirmed her written statement dated 4 March 2007 and said that she had been working as a night sister at the Beeches Home. There would be one or two night sisters on duty and four or five care assistants. Ms Sharpe had worked with the Appellant at least once a week in 2003 and found her to be 'generally disinterested in the patients and her job'. (We took this comment to mean that she was uninterested). On the night of 19/20 August, Ms Sharpe had arranged to leave early for personal reasons although she did not actually leave until 2 am. Shortly before that she did some checks on patients including Mr D. She knew him to be a deep sleeper but when he could not be roused she told a care assistant to get the Appellant. She expected the Appellant 'to check his blood sugar, blood pressure and temperature and call a doctor'. Ms Sharpe could not do the tests herself as she had given her keys to the Appellant but she did not wait to see if any action had been taken. Ms Sharpe emphasised that the Appellant did not join in the discussion of patients that took place in the night staff rest room when they had their breaks. However, she said that she had never had any reason to doubt the Appellant's competence in her work as a registered nurse. She said that she had got on well with the Appellant.
7. The Appellant gave her evidence on oath and confirmed her statement dated 2 October 2007. She had accepted the misconduct that led to her being struck off the NMC and being placed on the PoVA and PoCA Lists and List 99. We explained to her that we did not have the power to re-instate her as a registered nurse but if she were to be removed from the Lists then she would be able to practise as a carer and in due course apply to the NMC for re-instatement. The Appellant repeated that she acknowledged her mistake on that evening of 19/20 August 2003 and had no explanation for her behaviour. She had trained in Botswana and had worked as a registered nurse for twelve years before coming to England. There had never been any disciplinary matters or complaints about her work before she worked at The Beeches and she had subsequently worked as a registered nurse at Rosewood Nursing Home from March to November 2004 when she was struck off. Again, there had been no complaints during that time and she had been nursing diabetic patients satisfactorily, as indeed had been the case pre-2003.
8. We were told that the Appellant had undertaken distance learning training on diabetes in July 2005 and also attended a course for two days. She had updated her first aid and emergency life support knowledge with training courses. She told us that she wanted to work as a carer and would undertake to work only under supervision; she had learnt from her mistake. The Appellant told us that the night of 19/20 August was the first time she had been on duty on her own at The Beeches since she started work there. She agreed that she was a quiet person who kept problems to herself. Although she had initially been happy working at The Beeches she had felt excluded from the teams of carers and she described some tension between the local staff and the overseas staff. She regretted her mistake.
9. Ms DM gave evidence on oath to the effect that she had worked with the Appellant at Rosewood Nursing Home in 2004. She was not aware of any incompetence or disciplinary problems; she said that the Appellant was 'knowledgeable, skilled in basic nursing, reliable and trustworthy'.
10. In addition to the 'misconduct' that resulted in the Appellant being put on the Lists, we were aware of three incidents in the papers that were not cited before the NMC but were relevant in our consideration of the Appellant's suitability to be a carer. The evidence given about these was as follows:
11. Sleeping on duty

Ms Low's statement referred to two cautions that the Appellant received for sleeping on duty; these were as a result of complaints from care assistants and qualified staff members. The Appellant had denied these allegations and they were not proved in spite of a written representation from a number of staff at the end of March 2003. Ms Sharpe said in her statement that the Appellant 'frequently slept during her night shift'. In her evidence to us she confirmed that she had seen the Appellant asleep on duty and had had to wake her up. The Appellant, when questioned about this, said she would sometimes doze in her break time but denied being asleep.

12. Eye Ointment error

In her written statement, Ms Low referred to an incident when the Appellant had tried to administer a tube of anal preparation as eye cream to a patient. When questioned about it, the Appellant was upset about her mistake and said that she had been worried about a friend and had had a 'near miss'. She said that nurses did occasionally make mistakes.

13. Tippex incident

Ms Low said that following Mr D's removal to hospital on the morning of 20 August, Ms SM, one of the care assistants had found tippex on Mr D's record sheet in his file. Ms Low removed that sheet so that it would not be tampered with since it was an offence to falsify records.

Ms Sharpe said that when she went on duty on the evening of 20 August she noticed that an entry in Mr D's drug chart had been tippexed out.

The Appellant denied making any alterations to the records; she told us that she knew the importance of accurate records.

The findings of the Tribunal on the evidence

There was never any question about the Appellant's misconduct in relation to the failure to attend properly to the concerns about Mr D's condition on the night of 19/20 August 2003. The Appellant admitted it from the beginning and although she did not give any explanation of her behaviour, she clearly regretted what had happened and felt that she had been punished by being struck off the nursing register. She had also made several efforts to update her training on the treatment of diabetes and in first aid. She had been working as a cleaner since being put on the PoVA and PoCA Lists.

So far as the three incidents mentioned at 11, 12 and 13 above were concerned, we accepted that the eye ointment mistake was genuine error but we did not feel that sleeping on duty or tippexing records had been sufficiently proved. In both instances there had been ample opportunity for Ms Low to make further enquiries and substantiate these allegations but that had not been done.

The Law

The PoVA appeal is brought under s. 86 (3) as read with s.92 (4) of the Care Standards Act 2000 and states:

'If on an appeal or determination under this section the Tribunal is not satisfied of either of the following namely –

a. That the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a vulnerable adult or placed a vulnerable adult at risk of harm; and

b. That the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the List; otherwise it shall dismiss the appeal or direct the individual's inclusion on the List.'

The burden of proof rests with the Secretary of State to satisfy to the civil standard both that the Appellant was guilty of misconduct that harmed a vulnerable adult or placed a vulnerable adult at risk of harm, and that he is unsuitable to work with vulnerable adults.

The PoCA appeal is brought under s.4 (3) of the Protection of Children Act 1999 and reads in similar terms substituting 'child' for 'vulnerable adult'.

Conclusions

A. In considering whether or not the 'suitability' test has been satisfied we accepted the seriousness of the misconduct and the need to protect the public and retain public confidence.

B. However, we considered that there were some mitigating factors surrounding the misconduct.

i) It was four years ago; the Appellant was remorseful, had never denied her error and had made genuine attempts to update her knowledge.

ii) It would have been helpful to hear evidence direct from the care assistants; there had apparently been some ill-feeling between some of them and the Appellant and we did not know what effect that may have had on the Appellant's actions.

iii) The misconduct was an isolated incident in a nursing career that had spanned 14 years and appeared to have been a one-off event for which the Appellant had paid a necessarily high price.

iv) The Appellant had clearly learnt from her mistake and genuinely wanted to use her undoubted skills in the caring profession; that was currently denied.

C. So far as suitability was concerned, the level of professional care required as a carer was considerably less than that required as a registered nurse. If the Appellant were allowed to work as a carer, she would always be supervised until she had undertaken further training for higher qualifications. She would need to start at a low level that would not be easy for her.

D. We weighed very carefully the risk to vulnerable adults by allowing the Appellant to work as a carer and concluded that on the balance of probabilities she was 'suitable' to be so employed for the reasons given above. She would be very well aware of the penalty should any further misconduct occur but we felt that she should be given this further chance. Clearly something had not been right at The Beeches after the initial probationary period; the Appellant told us she was a private and proud person and there may have been unresolved cultural issues which were not fully appreciated by the other staff. In no way does this mitigate the seriousness of the misconduct but it may serve as some explanation.

E. It is true that no individual has a right to work in a particular profession but at the same time we believe that in the Appellant's case the risks posed to vulnerable adults at the level of working as a carer are not such as to render her unsuitable for such work. We therefore determined to allow her appeal and remove her name from the PoVA List.

F. So far as the PoCA List is concerned, we have no evidence to indicate any greater risk to children and we believe that the Appellant should also be removed from the PoCA List and List 99. It is extremely unlikely that she will be working unsupervised for some time and we would hope that in time she might feel able to apply for reinstatement as a registered nurse.

Accordingly it is our unanimous decision that both appeals should be allowed.

Mrs Rosemary Hughes (Nominated Chairman)

Mr Paul Thompson

Mr Ray Winn

Date: 7^th November 2007