England and Wales Care Standards Tribunal

JGD v Secretary of State for Education and Skills [2007] EWCST 1122 (PVA) (16 April 2008)

JGD
- v -
THE SECRETARY OF STATE FOR EDUCATION AND SKILLS [2007] 1122.PVA [2007] 1121.PC
DECISION

On 1 April 2008 sitting in Bridgend Law Courts.

BEFORE
Mr I Robertson (Nominated Chairman) Mr J Williams (Specialist Member) Mrs M Williams (Specialist Member)

REPRESENTATION

JGD in person.

Mr Dunlop of counsel instructed by the Treasury Solicitor for the Secretary of State

BACKGROUND

1. JGD is currently 23 years of age.
2. He started work as a Care assistant at a local Nursing Home when aged 18. The client group that he worked with were a challenging group of people with communication difficulties in an advanced stage of dementia. On 25 October 2005 an incident occurred with a patient JB. It was tea time and JGD was tasked along with other staff member to bring the Residents into the dining room and assist in feeding them. JB was mobile but had recently had a hip operation, was fragile and prone to falling (or putting herself on the floor as it was described to us). The normal practice was to walk with her to assist her to the dining table. On this day JGD put her in a wheelchair and pushed her to the table. This did not appear to be a wholly unusual occurrence in itself. Once he got her to the table however JGD decided that he needed to use the toilet and as there were no other staff immediately at hand, he strapped JB into the wheelchair using a lap strap.
3. JGD having left JB, then forgot about her and she appears to have been fed by other staff members. A member of staff EE then went to take JB back to her room and upon wheeling the wheelchair back from the table discovered that she was strapped in still.
4. Within the home is a policy of nil restraint unless approved by a multi professional team and written up in a resident's care plan. The seat belt on the wheelchair was not meant for use by staff (although we were told relatives sometimes used them when transporting residents.) After the incident all the seat belts were removed from chairs.
5. JGD was confronted about what he had done and accepted that he had strapped her in and left her, although according to EE showed little contrition. Towards the end of his shift he was heard by staff singing "Joy to the world, I don't give a huck" (sic). His conduct was reported and he was suspended the next time he came on shift, on 27 October, although was not told the reason for his suspension.
6. The Care Home reported his behaviour to the Police and on 15 February 2006 he was arrested and interviewed without legal representation. He admitted strapping JB in her wheelchair and forgetting her but said that it was done from the best of motives to stop her falling out. He was offered a caution by the police for an offence under S127 Mental Health Act and accepted this "as I knew I had done wrong". Following this he was summarily dismissed on 21 February 2006 and reported to the Secretary of State, who on 20 October placed him provisionally on both the Protection of Vulnerable Adults and Protection of Children Lists. These listings were confirmed on 20 June 2007 and it is from this that JGD appeals.

THE LAW

7. The Secretary of State has a duty under S81 Care Standards Act 2000 to;

"…keep a list of individuals who are considered unsuitable to work with vulnerable Adults"

8. The effect of inclusion on the list is spelled out by S89 which, to paraphrase, effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.
9. As indicated a referral was received from JGD's employers under S82 Care Standards Act 2000. This places a duty on employers to refer if;

"(2)(a) that the provider has dismissed the worker on the grounds of misconduct …………which harmed or placed at risk of harm a vulnerable adult."

10. On appeal the tribunal has to consider the matter as follows;

"S86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed 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 individuals 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"

11. In this case as set out above JGD was cautioned for an offence under S127 Mental Health Act . This amounts to the equivalent of a conviction. By S86(4) Care Standards Act 2000;

"Where an individual has been convicted of an offence involving misconduct (whether or not in the course of employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination"

12. By S2C Protection of Children Act 1999 the Secretary of State may consider any person placed on the POVA list for inclusion on the POCA list where the nature of the misconduct against a vulnerable adult is such that the individual would also be unsuitable to work with children. JGD was in this case placed on the POCA list under this provision.
13. In this case with the existence of the Caution there is no doubt in our mind that the first limb of the test enumerated above is satisfied, namely misconduct and actual or likely harm to JB. Furthermore we accept that the effect of the Caution is as set out in the previous Tribunal decision of Kalchev [2005] 589 PVA

"We consider that the caution satisfies the first two limbs that we have to consider on Appeal. Furthermore we consider that given the presence of the caution the onus in the case switches and it is for Mr Kalchev to satisfy us in the circumstances that he is a suitable person to work with Vulnerable People (and Children in the case of the POCA listing). "

THE EVIDENCE

14. We heard evidence from EE the Care worker who discovered JB was strapped into the chair and TH the Manager who, at the time, had in fact been in post 2 days and never met JGD before taking part in his initial suspension. We also heard from JGD and saw his staff records.
15. From the evidence of EE it is clear that staff fed JB and went about their tea time activities without noticing that she was strapped in. She showed little outward distress though when they came to move her "she looked sad, not her usual self" It was clear that although JGD was a somewhat arrogant and difficult person with staff, appearing at times truculent, this contrasted starkly with his behaviour towards and attitude to residents. EE herself in her witness statement expresses surprise that he should have left JB as he did, as this was not how he was with Residents. She praised his skills with Residents even when undertaking personal care tasks. JGD was undoubtedly the youngest member of staff, arrogant and at times full of himself, as he said in evidence he did not like to be told what to do.
16. He was remarkably candid in evidence. He accepted that what he had done was wrong, that he made the wrong decision and that he should have waited for a staff member to become free before going to the toilet. He was wrong to have forgotten JB and accepted that he must have caused her distress. He said that he did behave badly towards staff but spoke with genuine warmth and affection towards the Residents. Since being sacked he has not worked and he feels that the whole episode has had a hugely chastening and maturing effect upon him. His reason for appealing was not so that he could work with Children or Vulnerable adults in the future but rather to remove the stigma of being Listed.

ANALYSIS

17. Mr Dunlop on behalf of the Secretary of State cited the well known decision of MAIRS [2004] 269.PC. and the analysis of the tribunal of the factors that a Tribunal should take into account when considering suitability. In particular his behaviour had to be considered as a whole over his time at the care home, we had to look at the gravity of the offence, the effect upon JB, its context, his lack of contrition at the time and the lack of extenuating circumstances. He emphasised the importance of Public Confidence in the listing system and the need to ensure that the purpose of the legislation was to the forefront of our mind namely the Protection of the Vulnerable be they adults or children.
18. We concur with Mr Dunlop in his analysis of the factors to take into account but disagree with their application in this case.
19. JGD has no history of anything but good quality care of Residents he has worked with. The fact that he has on occasion been difficult with other staff members is an internal disciplinary matter that does not impact upon his care of vulnerable adults. We find that this incident was a one off and out of character. The original decision to strap her in, whilst being wrong, was motivated not by malice but misplaced concern. His subsequent failure to go back to her and release her is inexcusable negligence but is a matter of human frailty. We find that he did not act in a deliberately cruel or abusive manner but rather immaturely and inappropriately. He has learnt a harsh and cruel lesson and we have to wonder whether if he had the benefit of legal advice at the Police Station he would have accepted the caution.
20. It follows from what we said that we do not see JGD as a risk to vulnerable persons in the future. There is no doubt in our minds that the chastening effect of the Caution and the listing is huge. We doubt that he will want to seek work in this sector in the future, but if he does we do not feel that he will be unsuitable. Even therefore accepting the dicta in KALCHEV (above) we find that JGD has demonstrated that he is not unsuitable to work with Children and Vulnerable adults in the future.

DECISION

Both the Appeal against inclusion in the Protection of Vulnerable Adults List and the Appeal against inclusion in the Protection of Children Act List are allowed.

This is the unanimous decision of the Tribunal.

Mr I Robertson

Mr J Williams

Mrs M Williams

Dated: 16^th April 2008