England and Wales Care Standards Tribunal

 


PHH v Secretary of State for Education and Skills [2006] EWCST 876(PVA) (01 October 2007)

PHH (Appellant)

-v-

Secretary of State for Education and Skills (Respondent)

[2006] 876.PVA

[2006] 1132.PC

Before:

Miss H Clarke (Nominated Chairman)

Mr M Flynn

Dr E Walsh –Heggie

Heard on September 3^rd, 4^th and 5^th 2007 at Lincoln Magistrates Court, Lincoln, Lincolnshire

For the Appellant:

Mr M Mullins of Counsel instructed by McKinnells, solicitors.

For the Respondent:

Mr A Ruck-Keane of Counsel instructed by Treasury Solicitor.

1. The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated October 9^th 2006 (the decision letter); the first Appeal to confirm her on the Protection of Vulnerable Adults list (the POVA list) and the second Appeal to confirm her on the Protection of Children List (the POCA list).
2. The decision letter also notified the Appellant that the effect of inclusion on the POCA list meant that the Appellant would not be able to carry out work to which S 142 of the Education Act 2002 applies and that her name had been added to the Education Act list.
3. A restrictive reporting order under Regulation 18(1) of The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) was included in the directions made by the President of the Care Standards Tribunal; His Honour Judge David Pearl (the President) on 3^rd April 2007. The order prohibited the publication (including by electronic means) in any written publications available to the public or in 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 Applicant, or any vulnerable adult. The order stated that it should continue in force until the conclusion of the hearing and that the Tribunal should consider its continuation at the hearing itself.

The Tribunal has concluded that the order under Regulation 18(1) should continue so that details of the Appellant, the staff and residents at the residential home and the other witnesses have been anonymised in order to protect the private life of the parties in accordance with Regulation 27.

4. The Tribunal heard evidence from:-

(i) Mrs B, the registered proprietor of a residential care home in Lincoln (BH).

(ii) Ms C, who ran a management consultancy business (CFL)

(iii) Dr T a local GP who had originally provided a witness statement in support of the Appellant's Appeal. The Respondent then applied to the President for a Third Party Disclosure Order, which was granted on June 13^th 2007 requiring Dr T to provide all GP medical notes and records relating to Mrs F (who was a resident at BH) from June 2004 onwards to the date of her death. Dr T attended the hearing and gave evidence to the tribunal.

(iv) The Appellant also gave oral evidence.

5. In addition to the Tribunal bundle of papers (the Tribunal Bundle) which was prepared in advance of the hearing, the following additional documents were considered by the Tribunal:

(i) A Synopsis of the opening submissions by Counsel for the Appellant.

(ii) A summary of the notes and medical records relating to Mrs F prepared by Counsel for the Appellant.

(ii) Further copies of the medication administration records (the MAR sheets) for Mrs F.

(iv) A note of the closing submissions prepared by Counsel for the Respondent

(v) During the evidence of Mrs B a procedural point arose concerning a reference to a report which was prepared on June 29^th 2005, which had not been disclosed to the Appellant prior to the hearing. It was agreed that the notes of the meeting of the 29^th would be formally excluded from these proceedings by agreement of both the parties as they related to matters which would not progress the Appeal and in the circumstances it was specifically agreed that they should be excluded.

.

6. The POVA Appeal is brought under S86 (3) of the Care Standards Act 2000 (CSA 2000) which states: -

"if on an Appeal or determination under this section the Tribunal is not satisfied of either of the following, namely:-

(a) that the individual is guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults, the Tribunal

shall allow the Appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the Appeal or direct the individual's inclusion in the list."

7. The POCA Appeal is brought under S4 (3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 S86 (3) except that unsuitability to work with vulnerable adults is replaced under terms of S 4(3) of POCA 1999 with unsuitability to work with children.
8. In both of the Appeals, the burden of proof rests on the Respondent. The standard of proof is the 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] AC563
9. The written statements, correspondence and other documents filed by both parties with the Care Standards Tribunal prior to the hearing were collated into one paginated bundle (the Tribunal Bundle).
10. Background History

BH is a residential home in Lincoln registered for 30 residents requiring residential care. Mrs B has been the owner of BH for approximately 30 years and is the registered proprietor of the care home business operated at BH .The Appellant began working at BH in June 1986 as a care assistant and subsequently became a senior care worker. The Appellant obtained a number of training qualifications including NVQ level 3 in Care: the Boots Pharmacy Care of Medicines Training Foundation Course certificate, and the ASET Certificate in the safe handling of medicines.

The Appellant usually worked two consecutive day shifts from 8 am to 8 pm at BH and then had the following two days off ,another senior carer (usually AO) worked on the days when the Appellant was not working.

11. In April 2005 Mrs B commissioned CFL the coaching/consultancy business run by Ms C and Ms M, to produce a report on how possible changes to the management and staffing arrangements could be implemented within BH. During May and June 2005 CFL held a number of meetings with the staff at BH, including a "one to one" meeting between Ms C and the Appellant. A report was subsequently submitted by CLF to Mrs B which made various recommendations concerning the future management of BH.
12. On June 23^rd 2005 there was a verbal disagreement between Mrs B and the Appellant which centred on whether the Appellant had that morning given prescribed medication to Mrs F. As a result of the disagreement the Appellant left BH for approximately one hour during her working shift. When the Appellant returned to BH a further verbal exchange took place between Mrs B and the Appellant which culminated in the Appellant being told to leave BH.

After the Appellant had left BH, staff discovered that she had not signed the MAR sheets when she had dispensed the medicines that morning to the residents.

13. The Respondent alleges that because the Appellant failed to sign the MAR sheets before leaving BH the staff did not know which medicines had been dispensed and this created a risk of harm to the residents.
14. Following the incident on June 23^rd 2005 internal disciplinary procedures were instigated against the Appellant and she was subsequently dismissed by Mrs B for gross misconduct.

The Appellant brought an action through the Employment Tribunal proceedings for unfair dismissal but later withdrew the application when the parties agreed a financial settlement.

Ms B also reported the Appellant to the local inspector of the Commission for Social Care and Inspection (CSCI) and as a result of a further investigation the Appellant was placed on the POVA and POCA list.

15. The original allegations relied upon by the Respondent, (as set out on page 1 of the Tribunal Bundle) were amended by agreement during the hearing and the Respondent's allegations of misconduct by the Appellant were then based on:

(i) Failure by the Appellant to administer medication to Mrs F in accordance with her prescription between 18^th January 2005 and 16^th March 2005 and

(ii) Failure to complete the drugs record sheets on 23^rd June 2005, and that this did not represent an isolated incident but was part of a pattern of behaviour by the Appellant.

16. Dr T's Evidence

Dr T confirmed that he had attended residents at BH for approximately 20 years and he also confirmed that he had worked with the Appellant during that time. Dr T stated in his oral evidence that he had become Mrs F's doctor when she was registered with his GP practice when she was admitted to BH in 2004. Dr T considered that Mrs F had received good care during her stay in BH.

Dr T was questioned in detail about his prescribing methods and in particular whether he considered it appropriate for care workers to exercise discretion whether to give drugs to residents notwithstanding that the prescription details stated that medication should be given on a daily or regular basis. Dr T confirmed that notwithstanding what was on the MAR sheet or prescription he considered that experienced care workers could and did exercise discretion concerning whether or not a specific dose of medicine should be given.

Dr T stated that if Mrs F was calm and quiet "I wouldn't wake her up to give her Haloperidol which would make her sleepier." Dr T considered that Mrs F had not suffered any harm during the period between January and June 2005 and that her husband had been happy with her care at BH. Dr T described Mrs F as a very frail lady suffering vascular dementia and in physical decline.

17. The Appellant in her witness statement claimed that she had contacted Dr T on March 18^th 2005 concerning the drug regime prescribed for Mrs F as set out February / March MAR sheet and that this had been noted in Mrs F's records at BH ( the Tribunal Bundle page 300) . Dr T confirmed that he did not have a record of that conversation in his surgery records, but he acknowledged that the conversation might still have occurred, as although he usually made a note of telephone calls he could not guarantee that he always made a written record. Dr T was repeatedly questioned about whether a care worker should exercise discretion when a prescription specifically stated that it should be given daily or twice daily and did not refer to it being given as and when required.

Dr T stated that if a patient was drowsy or sleepy or unsettled, and the purpose of the medicine was to calm the patient it was not necessary to always give the medicine. He also stated that if the staff at the care home were exercising discretion it was not necessary to notify the doctor unless there had been a significant change in the resident's condition. "If a carer thinks a patient is too drowsy she can take her own decision because of her experience".

Under cross examination Dr T stated that he would not have expected necessarily to be consulted by the care home if the medication was not being taken providing the patient was quiet and happy.

18. Ms C's Evidence Ms C gave evidence about the involvement of CFL in preparing a report on how possible changes to the management structure of BH might be implemented. Ms C described how she had spoken to the Appellant and to other members of staff at BH.

Following the incident on June 23^rd 2005 Ms C had a meeting with the Appellant On June 27^th which in her written evidence (Tribunal Bundle Page 428 Para 5) she describes as counselling but in her oral evidence she also referred to coaching the Appellant. When asked by the Tribunal Ms C was unable to distinguish whether she was actually giving coaching or counselling to the Appellant. Ms C confirmed that following the meeting with the Appellant on June 27^th 2005 she had subsequently taken notes at the Appellant's disciplinary meeting on July 6^th 2005.

19. Mrs B's Evidence. Mrs B confirmed that since 2001 she had not been very visible in BH, she relied on her deputy manager JH to manage the day to day running of BH and she was planning to hand over more of the management structure to HO. . Mrs B confirmed that she had been at BH from June 21st 2005 because she was providing holiday cover for HO. Mrs B stated that after reviewing the notes of Mrs F she had been concerned at the administration of drugs by the Appellant which she considered showed a pattern of omission.

Dr Z (a partner in the same GP practice as Dr T) had been asked to visit Mrs F on June 22^nd 2005 because she was in an agitated state; he reviewed her medication and increased the dosage of Promazine and Haloperidol for Mrs F and specifically wrote on the medication notes that it should be given on a regular basis.

20. Mrs B stated that on June 23^rd 2005 she had arrived at BH at approximately 10.45 am and had spoken with the Appellant within the first few minutes of her arrival. Under cross–examination Mrs B initially did not accept that the conversation with the Appellant had been heated but did acknowledge that the conversation had been slightly louder than usual and that the Appellant had been upset. Mrs B expressed surprise that when the Appellant subsequently left BH after this exchange the Appellant had suggested that she might need to consult a solicitor.
21. Mrs B acknowledged in her oral evidence that during their conversation the Appellant asked for time off for one hour and that she had agreed to it.

Mrs B accepted that she knew when the Appellant left BH that Mrs F had not received her medication that morning.

22. The Appellant's Evidence

The Appellant described how she would decide whether to exercise her discretion to omit a dose of Haloperidol of Promazine for Mrs F and stated that she would assess Mrs F's condition; if she was asleep she would not wake her up nor would she give her the medication if she was alert and calm. The Appellant believed that Dr T trusted her to make decisions about Mrs F's medication.

The Appellant was questioned about the information contained on the MAR sheets for Mrs F in particular, her failure to administer the drugs between February 13^th 2005 and March 16^th 2005 in accordance with the prescription on the MAR sheet ( Tribunal Bundle page 286) which specified that both Promazine and Haloperidol were to be given twice a day. The Appellant accepted that she should try to give the drugs twice a day but she confirmed that she would not give the drugs if Mrs F was asleep, ill or if she appeared bright and alert.

23. The Appellant when asked why she had contacted Dr T on the 16^th March 2005 replied that it was to inform Dr T that when two doses of the drugs were given to Mrs F she would fall asleep for anything up to 12 hours and could not be aroused to give fluids. The Appellant was concerned that two doses of Promazine and Haloperidol per day was too much for Mrs F.
24. The Appellant's evidence was that June 23^rd 2005 was not a normal day at BH as the residents had been unsettled and there were fewer staff on duty than usual and it was a very busy morning . The Appellant said that when she had arrived at BH she had immediately noticed that Mrs F was in a poor condition and not fit to be given any drugs. "I wouldn't have refused to give medication, it was a practical impossibility. Mrs F was 5'2" and very tiny and frail and her condition was desperate."

The Appellant considered that Mrs B had spoken to her in a different, unusual way which had surprised her and that she felt that she was under a verbal attack. The Appellant stated that Mrs B had agreed to her request for one hour's "time out" and that the Appellant had returned one hour 5 minutes later because she felt it was the correct thing to do.

25. The Appellant admitted that she had failed to sign the MAR sheets before leaving the premises on June 23^rd 2005 but stressed that she had informed other carers on duty that day that everyone had had their drugs except for Mrs F. Under cross- examination the Appellant acknowledged the importance of signing the MAR sheets and accepted with hindsight that it was unsafe not to sign them but at the time she considered that she was part of a "tight team" and that everyone knew what was happening. The Appellant admitted in her oral evidence that she had failed to sign the MAR sheets immediately on some other occasions when she had felt the need to prioritise her actions because a sudden incident or emergency had occurred which needed her immediate attention.
26. Submissions

Counsel for the Respondent submitted that there was clear evidence that the Appellant had regularly failed to comply with the prescription for Haloperidol that was in place between 18^th January 2005 and 16^th March 2005 and the prescription for Promazine that was in place between February 12^th 2005 and March 16^th 2005 as stated on the February MAR sheet. The Respondent submitted that the Appellant should have been aware that the regular failure to medicate was incorrect.

It was submitted by the Respondent that the Appellant's decision to contact Dr T in March 2005 to request a change to the prescription supports the submission that the Appellant was aware that the way she was delivering the drug regime prescribed for Mrs F between January and March was not correct or consistent with the prescription and that this conduct constitutes misconduct.

27. The Respondent also submitted that the Appellant had failed to sign the MAR sheets for all the residents on June 23^rd 2005 and that she had also admitted in her oral evidence that she had failed to sign the MAR sheets on a number of other occasions.

It was submitted by the Respondent that without a contemporaneously completed drug record sheet there was no way in which other staff members would know what medication had been administered to the residents.

It was conceded by the Respondent that no actual harm had been suffered to Mrs F as a result of the failure by the Appellant to complete the MAR sheets at the time the medication was administered but the Respondent submitted that there was still a clear risk of harm to the residents of BH if the MAR sheets were not signed contemporaneously.

28. The Respondent submitted that the failure to administer medication in accordance with the prescription was a serious matter and asked the Tribunal to consider the views expressed by the Appellant on or shortly after June 23^rd 2005 in respect of the prescription given by Dr Z and the responses given in the disciplinary proceedings. (Tribunal Bundle page 71)

The Respondent submitted that the comments indicate that the Appellant has demonstrated that she is willing to place weight on her own judgment as to the administration of medication above that of the prescribing doctor and that she lacks the ability to recognise when she has overstepped the appropriate level of discretion.

29. Counsel for the Appellant stated that there was a distinct and different test with regard to misconduct which constituted grounds for dismissal from employment and the test to establish misconduct under the POVA or POCA legislation.
30. The Appellant's Counsel referred to the oral evidence given by Dr T who stated that he had been content and satisfied with the drug medication regime and care being given to Mrs F at BH. Dr T specifically stated that Mrs F's prescribed medication did not always need to be given consistently and that he had left it in the discretion of the carers as they saw the resident on a daily basis.
31. The Appellant's counsel also drew attention to the apparent discrepancy in the way that the staff were being treated at BH as other care staff in particular the other senior care worker AO had also not been giving the medication consistently on a daily basis to Mrs F between January and March 2005, but AO had not been disciplined by Mrs B, whereas the Appellant had been dismissed and reported to CSCI.
32. It was submitted by the Appellant's Counsel that the Appellant had not taken action against Dr T's wishes, who had been content to allow the care staff to exercise their discretion when administering the drugs ; there was no evidence that any harm had been caused to Mrs F between January and March ,and that this had been reaffirmed by Dr T in his evidence.

Counsel for the Appellant submitted that the improvements to Mrs F's condition after June 2005 could not be automatically linked to the Appellant's behaviour in March and that the BH records for Mrs F indicated that improvements to Mrs F's health could have been due to other physical medical conditions, in particular for instance her constipation, had been resolved.

H.

33. The Appellant's Counsel acknowledged that the Appellant had failed to complete the MAR sheets before she left BH on June 23^rd 2005 and reiterated that the Appellant accepted that she should have done so.

Counsel for the Appellant submitted that the Appellant had been open and honest with the Tribunal and had volunteered information to the effect that she had on some other occasions under extreme pressure failed to sign the MAR sheets when the drugs had been administered, but had done so later.

As there was no documentary evidence to verify any previous occasions when the MAR sheet had been signed late, Counsel for the Appellant submitted that the Appellant's frank admission demonstrated her inherent honesty and integrity. Counsel for the Appellant submitted that there was no evidence of a regular pattern of behaviour of delaying or failing to sign the sheets nor was there any evidence or risk of harm to Mrs. F.

34. On the question of suitability of the Appellant; Counsel for the Appellant relied on the evidence given by Dr T who had given a character reference and still supported her along with other G.P. references and personal references.

Findings

35. The Tribunal finds that over the many years that Dr T had been associated with BH a high level of trust had been established between Dr T, and the senior care workers at BH and in particular the Appellant.

Dr T was open and direct in his evidence and readily admitted that he could well have had a conversation with the Appellant on March 18^th 2005 and that the absence of any record of the conversation in his notes did not mean that the conversation had not taken place. The Tribunal accepts that a telephone conversation did take place on March 18^th 2005 between Dr T and the Appellant and that the written entry in the BH records on that day is correct (Tribunal Bundle page 300).

36. Counsel for the Respondent submitted that the MAR sheets for Mrs F showed that the Appellant had failed to administer the prescribed drugs to Mrs F on a number of occasions in particular between February and mid March 2005. The Tribunal examined the MAR sheets for January and February and noted that the regular doses of Promazine were also not administered by other carers, in particular JH and AO. The Tribunal finds that Promazine was being given regularly to Mrs F between January and March 2005 but that all members of the staff including the Appellant were exercising discretion about the administration of Promazine; if Mrs F was asleep or did not require the drug it was not given.
37. The Tribunal also finds in respect of the drug Haloperidol, that over the same period although the Appellant was exercising discretion and not giving the Haloperidol twice daily to Mrs F as stated on the MAR, AO was also on occasions omitting giving the drug twice daily to Mrs F .
38. The Tribunal finds that the Appellant and the other staff at BH were exercising their discretion in the administration of drugs to Mrs F and that this was in accordance with what Dr T expected the staff to do notwithstanding that the MAR sheet for February to March 2005 for Mrs F stated that both drugs should be given twice daily.
39. The Tribunal finds in respect of the drug Lactulose which was prescribed three times a day for Mrs F all the care workers who signed the MARs sheets between January 16^th 2005 and March 18^th 2005 on occasions omitted giving doses to F. The Tribunal also noted that the Appellant had given the drug more frequently and consistently during February than the other senior carer AO.
40. The Tribunal finds that the level of trust which had developed between Dr T and senior carers over a long period of time resulted in the Appellant exercising her discretion concerning the administration of prescription drugs even when the prescription did not specifically state that they should be administered on that basis.

The Tribunal finds that there was no attempt to conceal individual decisions by care workers to omit the administration of any of the drugs to Mrs F or to falsify the records.

The Tribunal finds that the methods for recording changes to the prescription drugs and for verification of those changes with pharmacies who supplied the drugs was at times inadequate and did not always accurately reflect what was being administered to Mrs F by the staff at BH.

41. In her oral evidence the Appellant admitted that on June 23^rd2005 she did not sign the MAR sheets for the residents before leaving BH but that she had locked the drugs trolley and had verbally notified other members of staff that all the medication had been dispensed to the residents except to Mrs F. Mrs B refuted this claim and written evidence (the Tribunal Bundle page 435) emphasised the failure of the Appellant to sign the drugs sheet. However under cross examination Mrs B admitted that she had known that Mrs F had not been given her morning medication.

The Tribunal finds that the Appellant did not sign the MAR sheet before leaving the premises but that she did verbally notify other members of BH staff about what drugs had been administered to the residents.

42. On June 23^rd there was a row between Mrs B and the Appellant which culminated in the Appellant leaving the premises for approximately one hour. Mrs B in her written statement stated that the Appellant "stormed out of the building at around 11 am without recording that morning's drugs or writing up any of the paperwork." ( the Tribunal Bundle Page 435).In her oral evidence to the Tribunal Mrs B accepted that during her conversation with the Appellant she had agreed that the Appellant could have one hour's time off. The Tribunal finds that on June 23rd 2005 the Appellant left the premises with the consent of Mrs B.

Conclusions

43. Misconduct is not defined in the legislation and 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 4^th 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." Angela Mairs [2004] 269PC at paragraph 109

The allegations of misconduct in this case focus on the failure by the Appellant to administer drugs to Mrs F in accordance with the prescriptions listed on the MAR sheets for Mrs F and the failure to sign the MAR sheets for BH on June 23^rd 2005, and that the Appellant's failure to sign the MAR sheets was not an isolated incident.

44. BH is a residential home not a nursing home and not all of the residents are on medication, there was a relatively stable population within BH and Mrs B acknowledged that there was a low turnover of residents with many having lived in the home for many years.

It is a noticeable feature of this appeal that Dr T and the proprietor of the home Mrs B, the Appellant and the other senior carer AO had known each other for many years. A degree of trust and mutual respect had developed between Dr T and the senior care workers at BH who he considered to be conscientious and hard working. As a result of this respect and perhaps familiarity over a number of years Dr T had become accustomed to delegating discretion concerning medication of the residents to the care staff at BH. Dr T considered that it was the care workers who had 24 hour experience seven days a week with the residents and they were best equipped to assess the resident's needs on a day to day basis.

45. Under repeated questioning Dr T was consistent in his responses that whilst the prescription records might refer to medication being given on a daily or twice daily basis, failure to do so might be justified because the individual was too drowsy and therefore it would be appropriate for a care worker to omit the dose of medication .Dr T expected the care workers to exercise their discretion and did not always expect to be consulted if medication not being taken and stated in his oral evidence that :-

"If a carer thinks the patient is too drowsy she can take her own decision because of her experience, because more in contact with them"

46. Having heard the evidence from Dr T and having noted in the MAR sheets that other care workers besides the Appellant did not give all the prescribed doses of medication to Mrs F in the period between January 18^th 2005 and March 16th 2005, the Tribunal does not accept that the failure by the Appellant to give every single prescribed dose of the drugs to Mrs F constitutes misconduct. The prescription pattern as stated on the MAR sheets for Mrs F between November 2004 and June 2005 changed with handwritten amendments to the MAR sheets covering some of the period of time stating that some of the drugs should be given as and when required rather than as originally prescribed on a twice daily basis . What cannot be refuted is the clear evidence from Dr T that he had no concerns about the senior care workers exercising their discretion when administering the drugs to Mrs F even when this was not in accordance with the MAR sheet. The Tribunal accepts in these circumstances the Appellant was continuing with a pattern of behaviour which was not regarded as inappropriate or abnormal behaviour at BH.
47. The Tribunal does not condone or accept that this is the most appropriate way of supervising and dispensing drugs in a care home, nevertheless the Tribunal cannot see why the Appellant should be singled out when others such as AO and JH were also during the same period of time failing to administer the drugs to Mrs F. Mrs B confirmed that no previous disciplinary warnings or proceedings had ever been given to the Appellant.
48. Mrs B in her evidence was critical of the Appellant's failure to administer all the drugs to Mrs F but appeared to be perfectly satisfied that no action of any description should be instigated against AO, another experienced senior care worker, for her failure to administer drugs to Mrs F during the same period of time. This causes the Tribunal some concern, particularly when it is considered against the background of the proposed management changes which Mrs B was trying to instigate at BH.

The Tribunal noted the comment in the written statement of Mrs B (the Tribunal Bundle page 433 para 8) stating that the Appellant "was very resistent to C and M's involvement and did not see why it was necessary. Her attitude was that she did not see what all the fuss was about."

49. The Appellant in her oral evidence stated that Mrs B's attitude to her on June 23^rd 2005 was very different to her tone and behaviour towards her in the past, and caused her to comment at the end of her row with Mrs B that she might need to telephone her solicitor. This suggestion clearly affected Mrs B who repeatedly commented in her oral evidence as to how surprised she was that the Appellant should feel the need to contact her solicitor. Although none of this is directly linked to the question of whether or not the Appellant failed to administer drugs correctly to Mrs F it does demonstrate that there was an undercurrent of change and uncertainty in BH which may have caused tension and pressure between the parties.
50. The second allegation against the Appellant concerned her failure to record and sign the MAR sheets on June 23^rd 2005 as she gave the medicines to the residents and certainly before she left BH at approximately 11am.

The Appellant has admitted that she failed to sign the records on June 23rd 2005 before she left BH for one hour but she said that she told the other care workers that all the residents except Mrs F had received their medicines.

51. The Tribunal has accepted the Appellant's version of events, namely that she did notify other care workers at BH that she was leaving the building and that the medication (with the exception of Mrs F) had been given and therefore although she did not sign the records contemporaneously there was minimal risk of any problem on this specific occasion because other staff at BH knew that all the medications had been administered except to Mrs F.
52. The Tribunal is mindful of the fact that this is not a nursing home and that many of the other residents were in a stable condition and that the majority of the medication being distributed came in specific dosette boxes, which would make it relatively straight forward for the staff to determine what medicines had been administered.
53. The Tribunal does not condone the failure of the Appellant to sign the MAR sheets on June 23^rd 2005 before leaving BH, it was a serious error. In her oral evidence the Appellant acknowledged the importance of signing the MAR sheets but also highlighted that June 23^rd 2005 had been a very stressful day some of the residents had been restless and difficult .The Appellant had acknowledged that there had been some other occasions in the past when she had not signed the MAR sheets immediately, when they had been short staffed and an accident or incident had occurred and it had been necessary to prioritise the immediate care needs of the residents over written paperwork.
54. The Tribunal accepts that this was a frank admission by the Appellant of her previous behaviour and whilst again not seeking to suggest that this should be acceptable behaviour it recognises that the Appellant was trying to cope in what were demanding and difficult situations. Furthermore the Appellant made it clear that with the benefit of hindsight she should in future make sure that the MAR sheets were always signed at the time the drugs were distributed.
55. The Tribunal has concluded that notwithstanding that the failure to sign the MAR sheets immediately could not be regarded as good practice, and in most situations should be regarded as poor practice, the circumstances surrounding the events on June 23^rd 2005 and the Appellant's verbal report to the other staff on duty at BH notifying them of what medicines had been distributed, has led the Tribunal to conclude that this incident should not be treated as misconduct in these specific circumstances. The Tribunal also finds that the frank admission by the Appellant that on some exceptional situations in the past she may have delayed signing the MAR sheets until later in her shift does not demonstrate a regular pattern of delaying signature of the MAR sheets.
56. The Tribunal in reaching its conclusions followed the approach adopted in PB v Secretary of State [2006] 628 PC; the Respondent has the burden of proving to the civil standard of proof that the Appellant was guilty of misconduct as stated in the Care Standards Act 2000 S86(3) and POCA 1999 S4(3). As the Tribunal did not find the Appellant guilty of misconduct it is not necessary for it to consider whether there was a risk of harm to a vulnerable adult .The Tribunal noted however that the Respondent had conceded that no actual harm had in fact been suffered by Mrs F because of the failure to administer the medication in accordance with the prescription on her MAR sheets. It was also accepted by the Respondent that there was no evidence to suggest that any actual harm had been caused to any of the residents at BH because of the Appellant's failure to sign the sheets on June 23^rd 2005, and because the Appellant orally notified other care workers at BH of the position concerning the medication before leaving BH the potential risk of harm to any of the residents would be limited, although it could not be excluded.
57. As the Tribunal has not found the Appellant guilty of misconduct which harmed or placed at risk of harm a vulnerable adult the question of the suitability of the Appellant to work with vulnerable adults or children is not an issue that needs to be specifically addressed by the Tribunal. Nevertheless if it had been necessary to do so the Tribunal would have considered that even if some degree of misconduct had been established the previous exemplary record of the Appellant and the strong support offered by Dr T, against a backdrop of tensions in the management structure within BH and evidence that the Appellant was treated differently from AO for exercising her discretion concerning Mrs F's medication, would have weighed heavily in favour of the Appellant.

Decision:

The Appeals are allowed.

It is the unanimous decision of this Tribunal that both the appeals be allowed and the Tribunal directs that the Appellant's name should be removed from the POCA and POVA lists.

Miss H Clarke (Nominated Chairman)

Mr M Flynn

Dr E Walsh – Heggie

Dated October 1^st 2007