England and Wales Care Standards Tribunal

GAVIN RATHBONE

v.

SECRETARY OF STATE

[2007] 975. PVA

[2007] 976.PC

Before:

Mr. Andrew Lindqvist (Nominated Chairman)

Mrs. Susan Last

Mr. David Tomlinson

Heard on the 15^th October 2007 at The Care Standards Tribunal, 18 Pocock Street, London.

The appellant appeared in person.

The respondent was represented by Mr. Philip Coppel of Counsel instructed by the Treasury Solicitor.

DECISION

1. By a notice of appeal dated the 23^rd March 2007, Mr. Gavin Rathbone appeals against the decision of the Secretary of State, communicated to him by a letter of the 8^th January 2007, to include him in i) the Protection of Vulnerable Adults List (a list kept by the Secretary of State under section 81 of the Care Standards Act 2000 of individuals considered unsuitable to work with vulnerable adults), ii) the Protection of Children List (a similar list kept by the Secretary of State under section 1 of the Protection of Children Act 1999 of individuals considered unsuitable to work with children) and iii) the list kept by the Secretary of State under section 142 of the Education Act 2002 of individuals subject to a direction that they may not carry out specified work such as teaching.

2. The first list is commonly known as 'the PoVA list' and the appeal against inclusion arises under section 86 of the 2000 Act, the second list is commonly known as 'the PoCA list' and the appeal arises under section 4 of the 1999 Act. The third list is commonly known as 'List 99'; inclusion in List 99 follows automatically from inclusion in the PoCA list so there is no separate appeal in respect of List 99.

The statutory provisions

3. Section 86(3) of the Care Standards Act 2000 provides that,

"If…………..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 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.

Section 4(3) of the Protection of Children Act 1999 is in identical terms with the substitution of 'child/ren' for 'vulnerable adult/s'.

2. It is therefore clear from the provisions in the two Acts that the burden of proof rests on the respondent, the Secretary of State, as Mr. Coppel accepted.

Interlocutory matters

3. At a directions hearing held (by telephone) on the 18^th July 2007, as ordered by the President on the 12^th June, Mr. Anthony Wadling gave directions about documents, witness statements, the preparation of a bundle and the hearing. Documents and statements were duly exchanged and incorporated into a bundle of 455 pages, time having been extended by an order of the President on the 13^th September.

Reporting restrictions

4. No application was made for a direction under regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The matter was considered briefly before the hearing; there appeared to be no circumstances making any such order desirable and the Chairman decided to make no order.

Background

5. Preston Lodge in Kingfisher Avenue, Humberton Road, Leicester is a care home run by Leicester City Council for up to forty elderly and disabled persons. The appellant, Mr. Rathbone, worked there from 1999 until January 2005, for the greater part, if not all, of that period he was a Senior Care Assistant. Above him and two other Senior Care Assistants in the management structure were two Assistant Managers, Mrs Lisa Hall and Ms Linda Weafer and the manager, Miss Enid Stevens, who became Mrs. Enid Delaney upon her marriage in August 2004. At the heart of Mr. Rathbone's appeal were the procedures for managing the residents' medication, an area of responsibility restricted to Senior Care Assistants, Assistant Managers and the Manager, in which the general care staff had no part.
6. The procedures to be followed when a service user was admitted to Preston Lodge were not the subject of any dispute. The new arrival should have with him/her a discharge letter from hospital or general practitioner with medication details. The senior staff member who handles the admission should check the medication accompanying him/her against the discharge letter and, if all is well, record the medication on a Medication Administration Record ('MAR sheet') and lock both the medicines and the MAR sheet in the medical room.
7. These procedures are derived from the Residential Care Homes Regulations 1984 as amended. Before any staff member can give medication, he or she must be trained in the procedures and satisfy the trainer of his/her competence. The newly qualified staff member then has to sign a form stating that he/she has been trained, understands the processes and is able to comply with the procedures. The importance attached to the administration of medication is such that any staff member may request refresher training if he/she feels it necessary.
8. The world being an imperfect place, it is inevitable that sometimes things will not go according to even the most carefully laid plans. A new resident may arrive with no discharge letter. In such a case it was and is a basic principle at Preston Lodge that no medication may be administered to any service user without written authority. The senior staff member who admits a new resident with no discharge letter must make enquiries about his medication, perhaps from his G.P., perhaps from the hospital, sometimes the new resident himself may provide useful information, or guidance may be available from other sources like Health Call or Prime Care. But whatever source or sources of information are discovered, no medication may be given unless and until authorisation is received in writing, for example by fax.
9. In September 2003 Mr. Rathbone had made a mistake in giving medication to the residents. He had, on his round with the medicines, overlooked an area of the home and failed to give the residents in that area their medicines. The precise details of the oversight are not of relevance to this appeal; what is of relevance is that the incident resulted in a disciplinary hearing, a final warning, temporary suspension and in April 2004, a spell of refresher training in the administration of medication. Consequently Mr. Rathbone should after that have been very aware of the great importance of following with care the procedures and regulations for the administration of medication to the service users. At no time in the conduct of his appeal did Mr. Rathbone suggest otherwise.

Misconduct

10. It was the disputed circumstances of the arrival of JR at Preston Lodge on the 5^th July 2004 which gave rise to the allegation of misconduct by Mr. Rathbone. JR was something of a 'regular' at Preston Lodge, having stayed for relatively short periods on a number of occasions. It appears that this time he was coming for respite care with a view to permanent residence.

The Secretary of State's case

11. The Tribunal heard oral evidence from Mrs. Hall, Mrs. Delaney and Ms Weafer. Each of them had made a statement to which were exhibited notes of interviews in which she had been involved. In some cases (except, for reasons unexplained, that of Ms Weafer) the interview was expressly conducted on the basis of confidentiality; that is stated at the outset and there is a reminder at the end of the interview. Mr. Coppel submitted, probably rightly, that in making their statements as they did, the three witnesses must be taken to have waived any confidentiality, but ex abundante cautela (with perhaps unnecessary caution), the Tribunal suggested that such waiver should be confirmed in oral evidence and in each case it was. The only reservation expressed concerned protection of the identity of the residents, for which reason the one resident who features in the evidence is referred to only as 'JR'.
12. The evidence of Mrs. Hall, Mrs. Delaney and Ms Weafer was that JR had arrived at Preston Lodge shortly before 5 p.m. on the 5^th July 2004. None of them was there when he arrived, Mr. Rathbone was the senior staff member present and he dealt with JR's admission. He recorded in the communication book (a book in which staff leave notes for other staff, for example other shifts) that he had booked in all of JR's prescribed medication but had found 4 x 5mg Temazepam tablets in his personal belongings and put them in the controlled drugs cabinet. Mr. Rathbone had indeed completed MAR sheets with JR's medication, there were some fourteen items including Ramipril (for hypertension), Isosorbide Mononitrate (for angina) and Loperamide (for diarrhoea) and Mr. Rathbone had noted JR's allergy to Ibuprofen. During the following three days medication was given to JR, on some fourteen occasions, in accordance with the MAR sheet completed by Mr. Rathbone.
13. On the 8^th July it was Mrs. Hall's task to re-order JR's medication. She looked in vain for a discharge letter or any equivalent document, nor could she find any record of JR's arrival so she telephoned Mr. Rathbone at home. He told her that there was no discharge letter and that he had completed the MAR sheet from the information on the boxes containing JR's various tablets. Mrs. Hall found on the boxes the name of the hospital from which JR had arrived, but it transpired that he had been there for only a day and she had to contact JR's G.P. for the information she needed.
14. The G.P. faxed a list of JR's medication but it did not include the three acute and short-term medicines, Ramipril, Isosorbide and Loperamide, which the G.P. advised that JR should not take.
15. The only document contemporaneous with JR's arrival is a record from the Accident & Emergency Department of the Leicester Royal Infirmary. The only medication it mentions is aspirin, but JR's allergy to Ibuprofen is recorded in the medication section of the form. Mrs. Delaney referred to that document as "the discharge letter that had arrived with JR" but there is in fact no evidence that it did so.

The appellant's case

16. Mr. Rathbone gave a different account of JR's arrival. He said that when he arrived at Preston Lodge for his shift just before 2 p.m. on the 5^th July the three managers (Mrs. Delaney (Miss Stevens at the time), Mrs. Hall and Ms Weafer) were all there and JR's tablets had already arrived in three bags. Ms. Weafer asked him to book them in so he put them on the desk in the medical room which he then locked. JR arrived at about 6 p.m. and Mr. Rathbone 'booked in' the tablets about half an hour later. He filled in the MAR sheet using information on the boxes containing the tablets and JR's previous MAR sheet. Mr. Rathbone said that he had not seen the discharge document from the A&E Department of Leicester Royal Infirmary. It was suggested to him that that document was the only possible source of his knowledge of JR's allergy to Ibuprofen, which Mr. Rathbone had recorded on the MAR sheet, but Mr. Rathbone said that he was well aware of JR's allergy from prior acquaintance. When it was suggested to him that to fill in JR's MAR sheet as he had done was reckless, Mr. Rathbone agreed.

The Tribunal's view

17. There were inconsistencies and discrepancies in Mr. Rathbone's evidence, which it is necessary to consider in connection with the issue of unsuitability. The Tribunal found that Mr. Rathbone's own account of JR's arrival disclosed misconduct. Mr. Rathbone had been trained in proper medication procedures. He had not very long before July 2004 been subject to a disciplinary hearing, received a final warning, been temporarily suspended and re-trained, all largely as a result of breaches of proper medication procedures (albeit not related to admission of new residents). The importance generally of complying with proper medication procedures could scarcely have been more heavily impressed on him. Even if Ms Weafer had rather casually asked him to 'book in' JR's medication, Mr. Rathbone must have known that the request was no authority for the improper action that he took in completing the MAR sheet as he did.
18. The Secretary of State relied on three particulars of misconduct, in brief they are a) that Mr. Rathbone gave medication to JR without current medical authorisation, b) that he completed the MAR sheet without proper authorisation or supporting documents and c) that he, knowing that there was no medical authorisation for JR's medication, made no attempt to get information from a medically qualified person. Although maintaining his denial of misconduct, Mr. Rathbone admitted as facts the latter two particulars, he denied the first on the basis that the information on the boxes was current medical authorisation because it emanated from a qualified pharmacist.
19. The Tribunal did not regard the pharmacist's signature on the boxes, if indeed it was there at all, as to which there was no evidence except Mr. Rathbone's recollection, as sufficient authorisation because the pharmacist would not have prescribed the medication. The Tribunal had no doubt that the facts of the three particulars relied on by the Secretary of State, one found proved and two admitted, were sufficient individually, and a fortiori together, to constitute misconduct on Mr. Rathbone's part. His admission that his actions were reckless came, in the Tribunal's view, very close to an admission of misconduct.

Unsuitability

20. In relation to the issue of unsuitability, the Secretary of State relied on the established misconduct in the context of the September 2003 incident and, in particular, its consequences, and also what Mr. Coppel described as a lack of insight and understanding and a cavalier and reckless indifference. It is with respect to the latter that the inconsistencies and discrepancies in Mr. Rathbone's account are relevant and significant.
21. Mr. Rathbone's evidence to the Tribunal was that JR's medicines were at Preston Lodge when he arrived for his shift. Towards the end of his investigatory interview of the 3^rd August 2004, Mr. Rathbone is recorded as saying, "I don't know if that medication came in before (JR) did."
22. In that interview Mr. Rathbone recalled a visit by JR's social worker prior to his arrival. Mr. Rathbone describes the social worker as young with fair hair and recounts a conversation in the office involving the social worker, Mrs. Hall and Ms Weafer. He repeated that account in his oral evidence to the Tribunal and gave more detail of his conversation with the social worker about her reduction of JR's medication. He mentions the social worker by name in his letters to the Manager of the Protection of Vulnerable Adults Team of the 19^th May 2005 and September 2005, the latter containing the allegation that she actually brought JR's medication with her to Preston Lodge. Mrs Hall and Ms Weafer both said that no such conversation took place; the social worker, Caroline Gibbard said in an interview on the 24^th August 2004 that she did not visit Preston Lodge on the 5^th July 2004 and did not speak to anyone there that day save by telephone to confirm JR's admission.
23. Mr. Rathbone recorded in the communications book that he had found 4 x 5mg Temazepam tblets in JR's belongings. In his interview of the 3^rd August 2004 he said almost in the same breath that the tablets fell out of JR's trousers and that they were just loose in a bag, later in the same interview he said that he could not remember how he found the tablets – "either in (JR's) trousers or in his bag". In his oral evidence to the Tribunal, Mr. Rathbone said that the Temazepam tablets were in JR's suitcase.

26. Mr. Rathbone did not accept that he had seen the discharge document from the Leicester Royal Infirmary (A&E Department) before he admitted JR. His explanation to the Tribunal that he knew of JR's allergy to Ibuprofen from long acquaintance and not from that discharge document was not given in his interview on the 3^rd August 2004 when Mr. Rathbone said of that information, "I might have got it from the MAR sheet, I don't know."

24. At the appeal hearing, Mr. Rathbone was asked, as he had been in his interview of the 3^rd August 2004, about sources of information about the medication of service users who arrive without documentation. His evidence was that in JR's case he had relied on the information on the boxes. Asked by the Tribunal whether that information included the date on which the medication was issued, Mr. Rathbone answered "I don't think I looked at the dates. All the boxes were new and unused." In his letter to the manager of the Protection of Vulnerable Adults Team of the 19^th May 2005, Mr. Rathbone had said that the dates on the boxes were correct.
25. Mr. Coppel submitted with some force that the Tribunal should find i) that Mr. Rathbone did have the discharge document from the A&E Department of the Leicester Royal Infirmary and so knew of JR's allergy to Ibuprofen, ii) that Mr. Rathbone was wrong when he said that JR's medicines arrived at Preston Lodge before he did, and iii) that Mr. Rathbone did not have any conversation with Caroline Gibbard (JR's social worker) on the 5^th July 2004.
26. In all three matters the Tribunal's findings on the balance of probability accord with Mr. Coppel's submissions. But that is to a degree beside the point or, rather, is not the most significant part of the point. The most serious point, in the Tribunal's view, is the extent to which facts are flexible in Mr. Rathbone's mind coupled with his propensity to latch onto any matter which, for the moment, appears to him to have exculpatory qualities. JR's arrival with scanty documentation and inconsistent medication should have rung alarm bells in Mr. Rathbone's mind and, simply, precipitated a check with hospital or G.P. or reference to a manager for guidance. In his mind and recollection it has become fogged and confused by an improbable conversation with the social worker, whose name he forgot in August 2004, a month after the event ("a young girl with fair hair") but recalled in both letters of 2005, about a year after the event, an unlikely and vague instruction from Ms. Weafer to 'book in' the medication and the creditable discovery and appropriate disposal of the stray Temazepam tablets.
27. In the Tribunal's view Mr. Rathbone's failure to take proper care despite the strong warnings, his inability to realise that he has gone wrong, to own up to it, to accept the responsibility and to do his best to put things right and to do better in future is a serious failing and one which, regrettably, casts very real doubt on his suitability to work with vulnerable adults or children. The Tribunal found much in Mr. Coppel's submissions concerning a lack of insight and understanding and a cavalier and reckless indifference.
28. Mr. Rathbone produced documentary evidence from three witnesses, Ms G. Cockayne, Mrs. J.D. Gale and Mr. Kevin Southerill. All three had varied but considerable experience of care work with the elderly and all three had worked with Mr. Rathbone for a number of years. They all spoke of his thoughtful, easy manner with service users, his caring concern for them and his practical interest in their well-being. He was, they said, widely liked and trusted.
29. Ms. Maxine Lloyd, called as a character witness by Mr. Rathbone at the hearing (without objection by Mr. Coppel despite the lack of a statement) had worked with him at Preston Lodge for three years. She spoke of his ability to get on well not only with the residents but also with 'authority' figures like health officials and doctors. He had a long-standing and supportive relationship with JR.
30. The Tribunal had no doubts about the evidence of Mr. Rathbone's witnesses. His demeanour and attitude were those of a person who could easily get on with people of different backgrounds. That quality is an important one for a social worker or a carer. But Mr. Rathbone's possession of that admirable quality does not, unfortunately, obliterate or even mitigate the flaws in his approach and attitude found by the Tribunal and which repeated warnings and training had, sadly, done little to improve.
31. It is right to record that, although the papers contain vague references to other possible misdemeanours on Mr. Rathbone's part, Mr. Coppel placed no reliance on them in his submissions nor did he seek to elaborate upon them in the evidence. The Tribunal paid no attention to them and gave them no weight at all but, in reaching its conclusions, relied on the evidence recited in this decision.
32. For those reasons the Tribunal was unanimously satisfied that Mr. Rathbone was guilty of misconduct which placed a vulnerable adult at risk of harm, namely the risks inherent in taking the wrong medicine and that he was unsuitable to work with vulnerable adults. Accordingly he is correctly included in the PoVA list. The same reasons and section 1(2)(a) of the 1999 Act justify his inclusion in the PoCA list.

The Tribunal unanimously dismisses Mr. Rathbone's appeal.

Mr Andrew Lindqvist (Nominated Chairman)

Mrs Susan Last

Mr David Tomlinson