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Cite as: [2007] EWCST 946(PVA)

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AB v The Secretary of State for Education and Skills [2007] EWCST 946(PVA) (5 December 2007)

Between Case Nos. [2007] 0946.PVA/ 0947. PC

A.B. - Appellant

And

The Secretary of State for Education and Skills - Respondent

Between Case Nos. [2007] 0948.PVA/ 0949.PC

R.B. - Appellant

And

The Secretary of State for Education and Skills - Respondent

Before:
Miss Maureen Roberts (nominated chairman)

Mr Michael Jobbins

Mr Christopher Wakefield

Hearing on 26^th to 30th November and 3^rd to 5^th December 2007 at Stourbridge County Court Stourbridge West Midlands.

The Appellants appeared in person.
Mr Jonathan Auburn of Counsel appeared for the Respondent instructed by the Treasury Solicitor. The tribunal heard evidence from the following witnesses on behalf of the Respondent:

From the local PCT: Ann Rouine Locality Matron, Sally Gallagher District Nurse, both from Sandwell Primary Care Trust formerly Oldbury/Smethwick PCT, Elaine Elwell District Nurse Tipton and Rowley PCT and from September 2003 to March 2005 a District Nurse with Oldbury/Smethwick PCT.

From the Local authorities: Parvinder Uppal a Contracts and Monitoring Officer, in the Purchasing section of the Adult and Community Department, Beverley Hellend Service Improvement Manager within Adult and Community Services Department Older people's services, Rebecca Thomas Acting Operational manager in Adult and Community services and in 2004 an adult practitioner all employed by Sandwell Metropolitan Borough Council and David Marsden employed by Sandwell Social Inclusion and Health as a Community Care officer.

From CSCI: Amanda Hennessy Regulation Inspector, Jon Potts Regulation Inspector, Deborah Sharman Regulation Inspector, Mike Gerrard Regulation Manager, Louise Lawton now a Service Inspector and in 2004 a Business Relationship Manager. Mike Kirton now a forensic social worker in Birmingham and in 2004 an Inspector with CSCI

Decision

The Appellants appeal against the two decisions of the Respondent contained in letters to the Appellants dated the 1^st December 2006 (the decision letters); firstly ( the first appeal ) to confirm them on the Protection of Vulnerable Adult's List (the PoVA List) and secondly (the second appeal) to confirm them on the Protection of Children Act List (the PoCA List).

The decision letter also notified the Appellants that the effect of inclusion on the PoCA list also meant that the Appellants would not be able to carry out work to which section 142 of the Education Act 2002 applies and that their names had been added to the Education Act List.

The referral and subsequent listing arose following the closure of Silverlands Care Home where the Appellants were joint proprietors. The closure had been by way of an emergency cancellation order. The letter of listing to each Appellant stated that the Respondent had concluded –

(a) The CSCI reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by failing to deliver the care required and, acting in a way that posed a serious risk to the welfare of vulnerable adults in your care.

(b) that you are considered unsuitable to work with vulnerable adults because you failed to met the needs of vulnerable dependent service users in receipt of the service and failed to be pro-active and robust in management and supervision.

The tribunal makes a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal. Regulations 2002 (the Regulations), restricting the reporting of the names of residents involved in the case and directing that reference to them shall be by their initials so as to protect their private lives. We further order under Regulation 19 that the hearing be in private, and that the decision be published in an anonymised form, under Regulation 27 to protect the private life of the Appellants.

5. The Tribunal and the parties had three lever arch files of papers prepared by the Respondent including the papers requested to be submitted by the Appellants. We noted that the Appellants had initiated an appeal to the tribunal against cancellation of their registration. There were eleven lever arch files prepared for that appeal however that appeal was not pursued by the Appellants.

The law

The first appeal (the PoVA Appeal) is brought under section 86 (3) of the Care Standards Act 2000 (CSA 2000) which states;
" if on an appeal or determination under this section the tribunal is not satisfied of either of the following namely:
a. That the individual was guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult; and

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

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

The second appeal (the PoCA appeal) is brought under section 4 (3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86 (3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4 (3) of P0CA 1999 with unsuitability to work with children.

In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We noted the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review tribunal (Northern Region) [2006] 4 All ER 194 where all the recent cases on the standard of proof were considered. In this case Richards LJ said" Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities."

The appeals for both Appellants were heard at the same time as the facts were common to both appeals. The Tribunal was mindful that the two Appellants had different roles in the running of the home and considered each Appellant individually in making its decision.

Chronology and Background

10. The Appellants were the joint registered proprietors of Silverlands Care Home (the home), a home for the elderly. Appellant RB is a state Registered Nurse and she was the registered manager. They ran the home from 1990 until its registration was cancelled in November 2004.

From 1990 to 2002 the home was inspected by the local social services. From April 2002 the home was inspected by NCSC and then CSCI. We noted from a historical summary of matters relevant to the home that there were four occasions when the local authority had expressed concern about the home and taken enforcement action; this included two proposals to cancel their registration which the Appellants had successfully contested.

After April 2002 there were a series of inspections, some announced, some unannounced and some in response to complaints. CSCI also made a decision, in Autumn 2003, to vary the registration permitting half the beds to be registered for EMI (Elderly Mentally Ill) residents. The chronology leading to the emergency cancellation was follows:

(i) 19 June 2002 Jon Potts received a complaint about a delay in seeking medical help after a resident had fallen. He found the complaint partly made out but the complainant did not wish to pursue the matter.

(ii) 11/12 September 2002 Jon Potts with two colleagues made an announced inspection and 33 statutory requirements were identified as either partly met or not met. In addition Mr Potts issued an Immediate Requirement Notice on 12 September 2002 'that the home was to ensure that any potential pressure areas, breaks in sores are reported to the appropriate GP or District Nursing Service with immediate effect.'

(iii) On 5 March 2003 Mr Potts received an application from the Appellants' for a variation to the home's registration from elderly persons to an 'EMI' home.

(iv) On 31 March 2003 Mr Potts carried out an unannounced inspection. He particularly looked at the progress on the action plan supplied by the Appellants after the previous inspection. He found that only a small number of the statutory requirements had been addressed; namely 7 requirements had been complied with. Mr Potts also raised concerns about the staffing levels on the day he did his inspection in that there were three staff and the proprietor on the duty rota for eighteen residents. In fact the proprietor AB was not on site and one member of staff was cooking.

(v) On 24^th June 2003 CSCI received a compliant about the lack of activities restricted menus and lack of choice about bed times. This was partly upheld.

(vi) On 20/21 August 2003 Mr Potts and Ms Sharman carried out an announced inspection. The inspectors concluded that while the home was providing a service which met many of the service user's expectations and had committed staff, there were many areas which required attention. Many of the statutory requirements dating back to September 2002 had not been met. Thirty seven requirements were highlighted. In addition Mr Potts issued an Immediate Notice stating that, " the home must maintain regular contact between the GP and service users according to their health needs and that all visits by healthcare professionals are documented." This was due to the health of one resident (DP) having deteriorated in the period prior to inspection.

(vii) On 30^th October 2003 Louise Lawton wrote to the Appellants stating that CSCI proposed to register the home in the category of 'PC care home providing personal care for 13 older people and 13 older people with dementia'. Conditions were attached including a requirement for additional staff on the dementia unit and training for staff in the care of persons with dementia. After some correspondence with the Appellants the revised registration was agreed with the additional requirements. In particular on staffing: 'The dementia unit to have a minimum of 2 care staff on duty at all times during the waking day, with an additional member of staff available at peak times. During the night, there should be a minimum of 1 working care staff in the dementia unit and 1 waking care staff in the older persons unit, with the third waking care staff available on site.'

(viii) On 10 February 2004 Mr Potts made an unannounced inspection with one colleague. There were 31 requirements not met or partly met. In addition six statutory requirements were made; in particular that risk assessments should be carried out for all residents and that the registered provider must ensure that the information required in Schedule 2 of the Care Homes regulations was obtained and kept at the home for all staff. An Immediate Requirement Notice was also issued regarding staff lifting practice and requiring footrests to be used on wheelchairs

(ix) On 11 April 2004 Mr Potts received a complaint from the daughter of DA,

(x) As a result of the complaint Mr Potts undertook an unannounced inspection on the 6^th May 2004 with Ms Sharman. Thirty two requirements were either not met or partly met. Sixteen further requirements were identified. Only one member of staff was on duty in the residential side (one member of staff was with the GP) and two members on the dementia unit when there should have been three. RB had gone to a meeting and AB was across the road doing repairs to a shed roof at his property. Mr Potts issued an Immediate Requirement notice in respect of staffing, risk assessment of the use of cot sides, the home to cease using joss sticks in the building, hoist and moving training to be provided to staff and personal toiletries to be stored safely in the dementia unit.

(xi) Mr Potts visited the home on 9^th July 2004 following concerns from the Anne Rouine. He reported that a service user had walked out of the home, residents were being transferred to the home's GP unnecessarily and there was no staff rota in place for the coming weekend. Shortly afterwards Mr Potts went on sick leave and was not involved with the home again.

(xii) On the 6^th and 13^th October Parvinder Uppal visited the home in her capacity of monitoring the contracts. She had previously visited in April and November 2003.She was concerned about the lack of information on the residents' files and that the rota did not match the staff on duty on the day of the visit. She also carried out a staff survey the results of which are noted later. On the 21^st October 2004 placements by the local authority were suspended.

(xiii) On 22nd October 2004 Mike Kirton and Amanda Hennessey carried out an unannounced inspection following concerns raised by the District Nurses about staffing levels, a complaint that a resident KH was sleeping on the floor possibly due to overbooking and about the care of another service user SH who had died in the early hours of the 21^st October; this inspection was followed by letter of serious concerns. This highlighted; no duty rota available for the week commencing 18 October, the Accident book was not appropriate and did not record all the accidents, no records for KH at the home, there were no nutritional assessments for 7 residents and no weight recording for 10 residents, staffing levels did not met the needs of the residents and evidence was needed that there was sufficient domestic and cooking cover. A response was requested by return of post .This was not received.

(xiv) The same CSCI officers carried out a follow up inspection on 27^th October 2004. While an accident book had been acquired none of the other concerns had been addressed and other issues of concern were noted.

(xv) On the same day 27^th October 2004 there was a VAPP (Vulnerable Adults Protection Panel) Strategy meeting. This considered the issues of the medical care of the residents the death of SH the non recording of occurrences in the home and the level of staffing.

(xvi) On 28^th October there was an emergency meeting at the CSCI offices between the Appellants and officers of CSCI including Louise Lawton and Mike Kirton

(xvii) At an inspection on the 1 November by Mike Kirton and Mike Gerrard, there were concerns noted about the absence of risk assessments and the administration of medication.

(xviii) There was a further visit on the 3^rd November 2004 by Mike Kirton with Amanda Hennessy. In particular there were serious concerns about the administration of medication and about staff records. Later that day there was a meeting with the Appellants. The Appellants acknowledged many of the shortcomings in the running of the home. The Appellants made enquiries to try and obtain the services of a consultant/ management team to take over the running of the home. In the meantime the local authority put in a team of managers to run the home. The existing care staff remained in post.

(xix) On 4^th November 2004 Ann Rouine, Locality matron assessed every resident and together with other professionals from social services determined what kind of placement i.e. residential, or nursing home, was suitable for each resident. All the residents had been moved within a fortnight.

As a result of continuing concerns about various aspects of the running of the home, on 4^th November 2004 CSCI applied to the Warley Magistrates Court under section 20(1)(a)(i) care Standards Act 2000 for orders that the Appellants registration under the Act should be cancelled on the grounds that there would be a serious risk to the life health or well being of a person unless the order was made. The matter was heard from the afternoon of the 4^th November through to the early hours of the 5^th November by a bench of three magistrates.

The magistrates court made an order for the cancellation of the Appellant's registration on the basis that they had found, beyond reasonable doubt, that there would be a serious risk to the life, health or well being of a person unless the orders were made. We saw the note of the reasons made by the magistrates court and noted the following findings of fact:

(i). there were insufficient care records;

(ii). there were insufficient records of drugs administered;

(iii). drugs were administered by untrained staff;

(iv). there was insufficient management control and supervision;

(v). there were inadequate recruitment and induction processes;

(vi). there were inadequate checks for employing staff;

(vii). staff records were not kept up to date;

(viii). the accident book was not kept up to date;

(ix). risk assessments were of a poor standard;

(x). there was inadequate provision for cleanliness;

(xi). there was insufficient liaison with medical health professionals or other agencies.

The Tribunal appreciates that an emergency cancellation hearing is a difficult situation for both the Appellants and the inspecting authority. Having said that, there was clearly a long hearing about the matter with the court sitting until the early hours of the 5^th November 2004. Evidence was given by CSCI and the Appellants. The test applied by the magistrates' court is one of 'serious risk to life, health or well being if an order was not made'. The Magistrates so found, and we noted that their findings were made to the higher standard of proof of 'beyond reasonable doubt'.

We took the view that the findings of the Magistrates court were not to be re-opened. Inevitably we read and heard evidence on many of the same issues. The tribunal sought to look at the issues of misconduct and suitability. We were mindful of the findings of the Magistrates Court.

The decision of the Magistrates' court is open to appeal to the Care Standards tribunal. The Appellants commenced such an appeal which was listed to be heard in October 2005. They withdrew their appeal shortly before it was to be heard.

The evidence and the tribunal findings

We read all the papers submitted and heard evidence about a wide range of matters. We have summarised below the evidence and our findings on the key issues. All dates are 2004 unless otherwise indicated.

Credibility of witnesses.

The witnesses we heard from fell into distinct groups. Firstly we heard from the district nurses Elaine Elwell Sally Gallagher and Anne Rouine the locality matron in charge of the district nurses. We heard from two Social Services staff who had placed clients at Silverlands, Rebecca Thomas, David Marsden and from the Contracts and monitoring Officer Pavinder Uppal, and a Social Services manager, Beverley Hellend, put into Silverlands to manage it after the court order. Lastly we heard from the CSCI officers Amanda Hennessey, Mike Kirton , Jonathan Potts, Deborah Sharman Mike Gerrard and Louise Lawton.

We noted that the Appellants had requested that Louise Lawton, Michael Gerrard Jon Potts Amanda Hennessey Michael Kirton, Anne Rouine Sally Gallagher and Elaine Elwell to be summoned to the hearing.

AB and RB gave evidence. They stated on their Further In formation Form that they did not intend to call witnesses. By way of explanation they said that they did not want to go back to members of staff or relatives to ask them to attend because there had been such a lapse of time between the home closing and this hearing.

We heard the witnesses and it was plain that the Appellants' relationship with the District Nurses was strained. From the beginning of 2004, the nurses had been increasingly concerned about many of the service users. Some of these concerns had been reported to CSCI. The Appellants considered that the nurses were complaining because of their increased workload at the home, and financial pressures on their budget. They complained that the nurses did not speak to them but to carers. They also felt that nurses were deliberately trying to move residents to nursing homes and out of the Appellant's home when, in their view, that was not necessary or what the resident wanted to happen.

On this issue we conclude that the nurses were acting professionally. They were not motivated by workload or finances but were concerned for the well being of the residents. We could see that there were difficulties between the nurses and the Appellants but that did not incline us to doubt the evidence of the nursing staff.

The Appellants had less objection to the other professional witnesses. We find that all the professional witnesses presented as competent and truthful. All of the reports and documents that they were referring to were contemporaneous with the events. Their initial statements were prepared for the Tribunal hearing scheduled in 2005 and confirmed in statements prepared for this Tribunal.

In addition we had written evidence from relatives which raised genuine complaints. RB at one point suggested that one of the complaints might not be genuine but we find that there was no evidence that this was the case.

In October 2004 Ms Uppal conducted a survey of the home's staff. Notably the staff raised the following issues:

• Staff did not have basic training

• Staff supervision not carried out

• No activities in the dementia unit

• Lounge and bedrooms were cold in the dementia unit

• The food in the home had the use by dates removed or was out of date

• The food in the dementia unit was of poor quality or insufficient

• There were not enough staff on the dementia unit

• Residents were having falls and these were not recorded in the accident book or the daily records sheets

• Medication was not labelled when left in the medication cupboard

• On two days there were 14 residents at the home instead of the 13 the home as registered to accept.

Again there was no reason to doubt the responses that Ms Uppal had received.

As noted above we did not hear from staff at the home but we had the staff comments collected by Ms Uppal. We also had a contemporaneous note of a remark by the deputy manager Bobbi Kakkad in July 2004 that there should be an unannounced inspection and that 'the place needs to be closed down'.

We had a statement from Ms Gold, a registered general nurse and a visiting manager of a nursing home who came to assess a resident BM with a view to taking her as a resident in her home. Miss Gold made observations about the home and the state of BM which were critical of the standards of the home and the Appellants. We had no reason to doubt the truth of what she was saying.

For the most part the Appellants either denied that something had happened or blamed someone else. They suggested that the staff were making remarks to be mischievious. AB came across as genuine but out of his depth in the situation. For example he said in his written statement that he had trained staff but in his evidence he sought to qualify that statement and maintained that he 'just' refreshed staff training on certain matters. He claimed that he was on the premises a lot of the time and was working up to 105 hours a week doing maintenance jobs and being a carer. Despite this amount of time he did not seem to have a grasp of the seriousness of the situation and his role and responsibility in it. RB found it difficult to give straight forward answers to questions. Both Appellants said that they felt unsupported by the professionals.

The roles of AB and RB

AB and RB were joint proprietors of the home and RB was the registered manager. Both of them 'lived' in the home a great deal of the time, only going home to sleep in their own accommodation. For most of the time they were in the home.

AB had given up a secure job in the insurance business to help his wife RB in the running of the home. He carried out a maintenance role although the home also employed a handyman. He carried out practical jobs, he printed off the staff rotas and acted as a carer. He was shown as a carer on the rotas. He also monitored CSCI responses and checked written policy documents. He deputised for his wife when she was away and took charge of the home on these occasions; he would make a decision in an emergency in her absence. He would stand in for staff if they did not come to work without notice. RB said in evidence that Care homes generally had difficulty recruiting suitable staff and that she did not like using agency staff as she considered that they did not provide continuity.

RB as a nurse and the registered manager was in overall charge of the home and ran it on a day to day basis. We noted that her status as a 'qualified nurse and has been qualified for approximately 30 years and is currently registered with the UKCC' was placed on the brochure given to residents and their families. As the manager she was responsible for staff recruitment, rotas, arranging training and in overall charge of resident care. Again she was on the staff rota herself. She said that she enjoyed being 'on the floor' and would also stand in if staff failed to come to work at short notice.

The treatment of residents

WP

This resident was a single man aged 77 in 2004 who had been at the home with his sister (BP) for four years. On the 8^th March 2004 District Nurse Elwell attended the home with a student nurse to carry out a routine patient assessment of WP. We saw the PCT Patient assessment form completed on that day and it was clear that WP had not been referred by the home or any other agency.

The nurse found that WP was in a poor state, bed bound, not eating, doubly incontinent with a pressure sore on his sacrum and bilateral necrotic heels. He had oral thrush and there was no record of his diet or fluid intake. The nurse discussed the appropriateness of his placement in the home with RB who said 'it was best that WP be allowed to go naturally'. RB denied that she had made such a remark.

The District nurse was concerned that WP was at high risk of dehydration and his pressure sores deteriorating. She completed a Clinical Incident/Hazard Form regarding his condition and made an assessment that he should be moved to a nursing home. RB said that WP would not want this as it would be difficult to keep WP together with his sister, who also resided in the home, if he was moved. He did not move to a nursing home.

The nurse placed an order for an air mattress back rest and cot sides (this last item was supplied by the home though it is not clear if WP ever had cot sides.) and the nursing service put in an intensive care programme for him.

The Tribunal noted that by the 4^th August 2004 it was reported that WP was much better and able to get around. When the home was closed he and his sister were moved to another home together.

DN

This woman aged 80 had been admitted to the home earlier in the year, in January. On examination by Ann Rouine on 4^th November she found that DN had cold hands, several small bruises to her right hand and right wrist,a red big toe and redness on a small toe her toe nails were very long and overhanging and she had debris between her toes and a discharge from her eye. Ann Rouine completed a VAPP form (Adult Abuse Notification form) regarding the condition of this woman.

DN was seen the next day by the chiropodist who trimmed her nails. He wrote a letter to report what he had done. We note he did not mention debris between the toes or note the redness. However he did say that when he went to take DN's socks off she said 'Don't hit me 'to him.

RB said that if what was being reported about DN then it was unsatisfactory. However she said that DN had refused to go to the chiropodist and that you could not force her. She felt that DN was confused and that she was the one likely to hit out. RB had not seen anyone hit DN.

EN

This resident was a woman aged 73. On 23 September 2004 Sally Gallagher one of the District Nurses came to the home to change Mrs EN's dressing. The time was about 9-15am and EN could not be found. The nurse and staff looked for her in the lounge in her bed room. Some one said not to worry she must be around and that she could not leave the building because of the locks. Some 10 minutes later she was found lying on the floor behind her bed. She was a very slight woman and had fallen out of her bed and was lying between her bed and the wall. Her bed clothes were wrapped around her. The district nurse described her as frightened and scared. She appeared uninjured and the nurse advised that she should be checked in hospital.

On 27^th October 2004 EN was found saturated in urine with tide marks on the bed clothes and a wet dressing on her heel. This was seen by Nurse Blair who spoke to RB about it. The member of staff said that there was only one carer on duty at the time and asked the nurse not to inform RB that she had told her about the staffing.

When RB was asked about this incident she said she remembered EN having a wet pad but did not see a wet dressing.

BS

This man was on the residential unit. He had a colostomy and therefore required colostomy bags and cream. It was found that he was cleaning his stoma with dettol and not using the right size colostomy bags. . Ann Rouine raised this on 4^th November at her review, a Clinical Hazard/Incident Form about the man's treatment. He was later reviewed by the stoma nurse.

RB said that this resident was very compos mentis and was a very private man. He organised his own supply of what he needed for his colostomy. She said that she would never instruct someone to use dettol in these circumstances. However she did consider that it was right for this man to do what he could himself .

RG

On 17 June 2004 the District nurse attended at the home to dress a wound on RG's leg. She found that the dressing had been changed and was told that RG had fallen and been taken to hospital where steri-strips had been applied to the second wound. The wound was infected and RG was in pain. The nurse said that RG should have antibiotics and then found that RG was not registered with a local GP. RG had come to the home, possibly for respite care, at the beginning of June. The nursing notes for RG could not be found, her injuries were not noted in her care plan and the hospital visit was not recorded.

Mrs RB said that RG had come in for respite care and had been taken to hospital after she harmed herself. She said that RG did not want to stay in the home and was deliberately harming herself so that her son would move her out of the home.

AB

On the 30^th September 2004 this resident was seen by the District Nurse. She had a grade 3 pressure sore registering 20 on the Walsall test. The nurse noted she was bed bound and at high risk and considered that she would be more appropriately cared for in a nursing home. She suggested this to the family but believed that RB had spoken to the family to dissuade them.

RB said that AB was compos mentis and knew where she wanted to be. AB had friends in the home and did not want to move. An air mattress was ordered for her.

KH

On the morning of the 6^th October 2004 the District Nurse Sally Gallagher called at the home in the morning, 9-00am. She saw a resident KH sleeping on the floor in the lounge. One of the care assistants, TH, said that KH liked sleeping on the floor and the nurse noted another carer trying to get him up off the floor. The nurse completed a Clinical Incident/ Hazard form about the matter and made with a nurse colleague, a complaint to CSCI which was entered on a Complaint Form 700. This was recorded on the 6^th October.

When the nurse completed her Clinical Incident form she noted that on 20^th October the care assistant TH had said to her that the reason KH was on the floor was 'there was no bed available for him that RB had overbooked'.

Initially in their statements the Appellants had said that KH liked sleeping on the floor and that he would 'try to pick the flowers off the pattern of the carpet'. When asked about this in evidence both AB and RB said that KH should have gone to hospital on the 5^th October. They had waited all day for an ambulance and it had not arrived. Another resident was due to come in and therefore there was no bed for KH on the night of the 5^th October. They also said that he slept in a chair on that night.

SH

This woman who from records had limited mobility and was partially sighted had come to the home on 6^th September 2004.

On 20^th October the District Nurses Elaine Elwell and Sally Gallagher were doing some incontinence assessments at the home when a carer TH asked them if she would come and look at SH. The carer was worried and upset about SH. The nurses went into see SH and found that she was obviously extremely poorly. Her mouth was open and very dry. She was cyanotic to extremities and dehydrated. The nurses asked how long she had been ill and whether the GP had been called. They were told that the GP had visited a week ago. In the week that SH had been confined to bed no request had been made to the nurses for an assessment or pressure relieving aids. This was the first time that they had been asked to see her. (She may have been in the lounge a week before when the district nurses called to administer flu injections).

The nurses advised that the GP should be called to see SH and that she should be transferred to a nursing home or hospital. The next day Nurse Elwell called at the home and went to check on SH. She found the door locked and was told by RB that SH had died at 5-00am that morning. When Nurse Elwell asked if the GP had called she was told that he had not.

From extracts from SH's care notes at the home it shows that she was up and about to start with and was eating and drinking well. However from approximately 26^th September she started having pain and this caused a deterioration in her sleep and for the following three weeks she had very little sleep and for 13 of those nights was described as 'either up all night and crying or screaming in pain'. She also had 'very heavy diarrhoea'. The GP saw her on the 16^th October when she was recorded as 'not eating, is not de-hydrated'. The GP said that the staff should try and give her fluids and that she would not be admitted to hospital because she was not dehydrated. He was not contacted again until the visit of the District Nurse.

RB when asked about SH did say, 'much much much apologies, we could have done things better'. She stressed that initially SH seemed to be doing well. She also said that she had been told not to call an ambulance in such circumstances.

Resident BM

This elderly woman had been admitted earlier in the year and was on the EMI part of the home. On 11 October a VAPP form was completed for her noting that she had 'Dark bruising to the left orbital area' that is under her left eye.

A short time later RB gave her family a week's notice (shorter than required by the contract) to move BM. On 27^th October a Ms Gold the registered manager of a nursing home came to Silverlands to assess BM. She made an appointment to see RB but when she arrived RB was not available and she waited in a lounge with 15 residents and one carer for 45 minutes. During that time the carer left the lounge for approximately 15 minutes leaving the residents unattended. Ms Gold noticed that 'the lounge was very dirty, with food on the floor, and that the lounge was fragranced by joss sticks'.

After 45 minutes a carer brought BM to her and RB also came in and said 'you won't take this lady' and advised that she did not want service users like her in the home. Ms Gold could not have a private conversation with BM but was directed to the upstairs lounge where there were other people around.

Ms Gold went on to say "I found it very difficult to assess BM in the lounge. I noted that she was wearing a dirty jumper, had dirty hands and had faeces under her fingernails. She had a very sore eye which was streaming pus." Ms Gold asked for her nursing/care notes and was told by RB that she could not get into the office to get them. She asked to read BM 's profile and this request was ignored.

Ms Gold said that she would take BM as a resident to the home she managed. BM was transferred on 28^th October with an empty medicine cassette and 6 ventolin inhalers. She only had a hand written note of her drugs and had to contact the chemist to get the correct prescription. Ms Gold noted that she had been taking risperidone, a drug contraindicated in a person who has had a stroke such as BM. Finally BM came to the new home with 4 sets of full dentures comprising one top and three bottom sets; only one of the bottom set belonged to her. Ms Gold reported her concerns to the GP and CSCI.

Residents clothing

One of the matters in the initial complaint about DA was that her clothes had gone missing. 'Clothes started to go missing that very first week; vest, pants and bras, completely vanished. By day 5-6 she was not dressed correctly at all, she had no underwear on, the only underwear she was wearing was her pants, this went on for 3- 4 days, I informed the care assistant. ..the underwear never materialised'.

This matter was put to RB who said that families put name tags on clothing and if needs be the home would put name tags on clothing. She denied there was a problem with residents clothing getting mixed up.

Communal toiletries, wheel chairs, walking sticks, dentures.

As noted above there was an instance of dentures being mixed up. One of the observations from Ms Sharman who inspected on August 2003 and May 2004 was that wheelchairs and walking sticks were shared on a 'one size fits all' basis and that this was not good practice.

Similarly she noted that communal toiletries were purchased and used for the residents; again in her view this was not good practice.

RB acknowledged that this was the case but said that often the relatives did not buy the required items for residents and so the home had to purchase them for the residents.

Food and heating

The Tribunal noted the comments in the staff feed back collated by Ms Uppal about the sell by dates on food and its adequacy. This matter was expanded by Ms Hellend who led the team put in to manage the home on the 3^rd November. The terms of the intervention were that the Appellants were still responsible for the provision of food (and for example staff wages) She went into the kitchen at midday on the 5^th November to check the meals for lunch time and over the weekend. The cook showed her two fridge freezers one for the Appellants and one for the residents. The latter contained a lot of frozen food with green Asda woops stickers which indicate that the item is near to its expiry date. The cook said the food was purchased with these labels and then put into the freezer. We also noted that one set of relatives had been told not to visit at meal times.

The cook then got out the pies and fish for lunch and Ms Hellend noted that there was not enough to go round the residents. When she asked the cook about this the cook said that she was told to cut the pies and fish into four. Ms Hellend arranged for additional fish portions to be brought from another residential unit to ensure that the residents had enough for lunch. Additional food was brought from council own food supplies for the weekend meals.

On the 7^th and 8^th November RB did bring some items of shopping. However Ms Hellend notes that when she and a colleague were helping her to unpack the items from her car , when her colleague went to take a bunch of bananas from the car RB said ' No those are not for them' which raised concerns about what Ms Hellend felt was a lack of empathy and respect for residents.

RB and in particular AB denied that inadequate food as given to residents or that there had been instruction to cut up portions. AB referred to the food as sumptuous.

There were a number of complaints by relatives and observations by inspectors that the residents bed rooms were cold. The complaint about DA for example stated that DA was wrapped in blankets and that the radiator in her room did not work and was not mended for three days.

Hygiene and odours

Every witness who had been to the home said that there was an odour in the home. Others mentioned that joss sticks were being burnt which witnesses considered was to mask the smell and was a fire hazard in the home especially when on one occasion the joss stick had been stuck in a box of live matches. Despite repeated request not to use joss sticks we noted that on 27^th October on Ms Gold's visit joss sticks were still being used.

The Appellants said that the problem had only started when two residents who were heavily incontinent persistently took off their incontinence pads and that despite cleaning the carpets it was difficult to get rid of the odour. AB brought a piece of the Wilton carpet that they had used on the unit to show that it was good quality but with a Hessian back and therefore liquid was seeping through to the floor boards. He acknowledged that it was the wrong type of carpet for an EMI unit.

Overall we conclude that there was a shortage of domestic hours, residents, some of whom were incontinent, were not being regularly bathed. There was an odour in the home and that the burning of joss sticks were an attempt to conceal this.

The administration and recording of medication

The Appellants stated that the medication was prescribed by the GP and delivered by the pharmacist once a week in Nomad containers for each resident. Other medication such as p.r.n., liquid or creams would come in a container with the residents name on it. Each resident appeared to have a medication administration record form known as a MARS sheet. There were a number of entries on the sheets which showed that AB had received and checked the medication.

AB said in his statement that he had trained staff in the administration of medication but when he came to give his evidence he said that he did refresher training on medication. RB said that she had shown care staff how to administer and record medication. She took the view that it was not necessary for care staff giving medication to know what medication they were giving or the possible side effects.

On 3^rd November Ms Hennessey, a registered nurse, checked the medication in the home. She found a number of examples of poor practice, and we note some of them below:

• Alendronic acid a medication only to be given once a week was signed for on every day by RB. If the medication was not given there were very specific instructions for the resident – not to lie down and to take a glass of milk and contact your doctor immediately.

• A care assistant ST who had no previous care experience and no CRB check was acting senior carer and administering the drugs together with two members of staff one with no CRB check and one with a check which revealed a caution for common assault.

• Medication was not signed for as it was given and it was not possible to correlate the drugs dispensed with the drugs given.

• The was a bottle of medication with the name changed.

• Eye drops were open with no indication when they had been opened. In evidence Ms Henessey said that eye drops should be discarded after 28days.

• There were three boxes of co-codamol dispensed on 28th September totalling 100 tablets, only 8 remained though the service user was prescribed one tablet a day. A further two boxes were dated 5 October totalling 224 tablets which seemed an excessive quantity.