England and Wales Care Standards Tribunal

Smith v Secretary of State for Health [2007] EWCST 1174(PVA) (24 June 2008)

BARBARA CHAPMAN SMITH

-v-

SECRETARY OF STATE FOR HEALTH

2007 1174 PVA
2007 1175 PCA

Before:
Ms Liz Goldthorpe, (Nominated Chair),

Mr David Braybrook

Ms Janice Funnell

Heard on 8^th and 9^th May 2008

at Procession House, Ludgate Hill, London

DECISION

REPRESENTATION

For the Appellant.


Mr Dyal of Counsel instructed by Ms H Caulfield, Solicitor, Royal College of Nursing Legal Department.

For the Respondent.
Mr Whale of Counsel instructed by Mr D Brown of the Treasury Solicitors

APPEAL

1. The Appellant appeals under s.86 of the Care Standards Act 2000 the decision of the Respondent dated 31^st August 2007 and contained in a letter to the Appellant dated 7th September 2007 (the Decision Letter) to confirm her on the Protection of Vulnerable Adults list (the POVA list – the first Appeal) and a letter on the same date to confirm her on the Protection of Children Act list (the POCA list – the second Appeal).
2. The basis of the decision to list the Appellant was that her employer reasonably considered her guilty of misconduct, which harmed or placed at risk of harm a vulnerable adult by verbally and physically abusing service users in her care and had failed to divulge the fact she had been previously dismissed from a care home for gross misconduct despite specifically being asked about this on two separate occasions. Furthermore, that she was considered unsuitable to work with vulnerable adults by reason of the nature and number of allegations reported by several witnesses and because the failure to disclose her previous dismissal had denied the home full information when considering her suitability to work in a care position.

Preliminary matters

3. On 30^th January 2008 the President, His Honour Judge Pearl, made the usual directions for disclosure and witness statements.
4. The Appellant said she had made a prior application to exclude unsigned and undated notes of interviews with herself, Ms W, and Ms F because the Respondents had no witness now available to give any direct evidence about the timing or manner in which these documents had been created. There was no direction for the exclusion of any documents, and the parties were unable to agree on contents of the Tribunal bundle. Having considered the issue before the hearing, the Chair ruled these documents should be included since the Tribunal could judge what weight to attach to them. At the hearing the Tribunal ruled that the Respondents' witnesses should not be present during the proceedings save for the purpose of giving their own evidence under oath.
5. The Tribunal made a Restricted Reporting Order under Regulation 18(1) of the Tribunal Regulations to withhold identification of the service users and their relatives in order to protect their private lives and a direction under Regulation 27(1) that the decision would be published in an edited form.

Evidence heard

6. The Appellant gave written and oral evidence. She did not call any witnesses.
7. On behalf of the Respondents the Tribunal heard evidence from Ms W and Mrs F, health care assistants ('HCAs') at the home and Mrs N, mother of a service user who was resident at the home at the relevant time, and Mrs S, Human Resources Manager for the group of homes run by Augustinian Care.
8. The Tribunal bundle contained several documents from the home's records, including those relating to the internal investigation of the events described below, as well as registered nursing care contribution sheets, and some accident or incident records. In the course of the hearing the solicitor for the Respondent found an incident sheet on the Treasury Solicitor's file not previously disclosed to the Appellant or her representatives. This recorded observation of a bruise on resident M, one of the service users who were the subject of the allegations against the Appellant. We requested full disclosure from the home of all similar records for the relevant period. A quantity of further records were produced that contained specific or general information potentially relevant to this appeal. Having carefully examined this, we added a number of these documents as additional evidence for this appeal.
9. On day two of the hearing, following oral evidence from Mrs W, Mrs N and Ms S, and having considered the late written evidence, the Respondents withdrew part of the allegations made against the Appellant. The Appellant also made a number of admissions during the course of the hearing.

THE LAW

10. The Secretary of State has a duty under s.81 Care Standards Act 2000 to "…keep a list of individuals who are considered unsuitable to work with vulnerable Adults". The effect of inclusion on the list is spelled out by s.89 which 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.
11. Under Section 82 Care Standards Act 2000 an employer has a duty to refer an employee if;

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

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

"S.86(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 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"

13. By s.2C 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.

Burden and Standard of Proof

14. The standard of proof is the ordinary 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] AC 563. The confusion caused by dicta in that case suggesting the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned, have recently been clarified by the House of Lords in In re B (Children) FC [2008] UKHL 35.
15. In paragraphs 31 and 32 of In re B Baroness Hale stressed the importance of oral evidence, "especially from those who were present when the alleged events took place", stating that in making up their minds whom to believe, judges are guided by many things, "including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses…if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other." She concluded at paragraphs 70 and 72 that the standard of proof "is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability".
16. In short, there is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. It is this test that we apply.
17. As set out in PB v Secretary of State [2006] 628 PC there are 3 tests that apply to the determination of an appeal under s.86 of the Care Standards Act 2000. Firstly, the Tribunal must be satisfied there was an act or acts of misconduct and secondly that one or more of those acts have harmed a vulnerable adult or placed them at risk of harm. The burden of satisfying the Tribunal as to misconduct rests on the Respondent.
18. If the first two tests are both satisfied evidentially, applying the single civil test of the balance of probabilities, the third test is whether the Tribunal is satisfied as to the Appellant's suitability to work with vulnerable adults or with children. In the cases of Kalchev v Secretary of State for Education And Skills [2005] 589.PVA and DG v Secretary of State [2006] 824 PVA, it was held that the duty to satisfy the Tribunal as to suitability transfers to the Appellant if the Tribunal is satisfied that the person has been guilty of misconduct. We agree, and adopt that approach in this case.

Misconduct

19. Misconduct is not defined in the 1999 Act nor is the term qualified as 'serious' or 'gross'. We have adopted the principles set out in Angella Mairs [2004] 269 PC, namely:

•    it is not necessary to establish misconduct is either serious or gross

•    a single act of negligence can constitute misconduct, but in most cases 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."

•    In the context of a profession there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession

•    Where an individual is unable to avoid the improper act or omission or the circumstances are such that it was impossible to avoid breaching the relevant code of conduct, misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult.

•    misconduct can arise out of acts of commission or omission and the term does not necessarily connote moral censure: an individual can be 'guilty of misconduct' without being, for example, dishonest or disgraceful.

20. By virtue of s.121, 'harm' means ill treatment or impairment of health to a vulnerable adult or to a child. All the links in the chain of causation between the misconduct and the harm or potential harm to a vulnerable adult must be intact before there can be a finding that an individual was guilty of misconduct resulting in harm or the risk of it.
21. However, not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children. A finding of misconduct of a less serious nature will not generally lead to finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable. Each case must be looked at on its own facts, context is very important and, as stated in Mairs the judgment "will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm".

(or as in this case, a vulnerable adult).

22. This requires consideration of at least, and not exclusively, the following matters:

(a) the number of incidents constituting the misconduct established;

(b) the gravity of that misconduct

(c) the time that has elapsed since that misconduct;

(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had potential to harm;

(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and

(f) extenuating circumstances surrounding the misconduct.

It also requires an assessment of risk.

23. The Tribunal must judge unsuitability as at the date of the hearing. The test of suitability is not an evidential test in itself, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously.

BACKGROUND

24. The Appellant qualified as a registered nurse in 1973. She has worked in various settings and homes, including Wycombe General Hospital from 1988 to 1998. She then worked at Shelbourne Lodge Nursing Home ("Shelbourne Lodge"), but was dismissed for gross misconduct in August 2001 following a disciplinary meeting at which she was represented. According to the Appellant the precipitating incident was a resident falling on the floor and being lifted by her and two other staff without using a hoist, contrary to the policy of the home. No referral was made to the nursing regulatory body on that occasion.
25. After a period of unemployment, in February 2002 the Appellant telephoned the Ker Maria Nursing Home ("the Nursing Home") to enquire about a job. She was invited to visit the Nursing Home and during the visit was interviewed and offered a job which she accepted. This is a registered care home run by Augustinian Care with capacity for 41 elderly physically frail and/or mentally impaired service users.
26. Following the job offer the Appellant completed an application form dated 24^th January 2002, and signed it under a declaration stating that any false or misleading information "may lead to dismissal." In two separate places she stated her reason for leaving Shelbourne Lodge was a lack of support from management. She left the references section blank. This section was completed in different handwriting and under 'current/most recent employer' named a nurse at Wycombe General Hospital. The second referee named was a longstanding friend and colleague of the Appellant.
27. The nursing home had 46 care staff working a rota of 3 shifts. The Appellant was employed as an Enrolled Nurse working 2 night shifts a week on Sundays and Mondays from 8 p.m. to 8 a.m. Approximately once a month she also worked an extra day or night shift. She was in charge of two HCAs and worked most often with Mrs W and Mrs F. During her shift she had overall responsibility for the home, the administration of medication, decision-making about the care of residents and a duty to ensure all incidents and relevant information about incidents were recorded, reported and highlighted in the formal handover to staff on the following shift.
28. The Commission for Social Care Inspection ("CSCI") carried out a number of unannounced inspections of the home. Requirements were set in two inspections prior to December 2004. In the third inspection CSCI highlighted the high level of residents' needs and reiterated a number of concerns including a lack of clear direction for the home, regular assessment of the level of competence of trained nurses and a lack of detail in care plans. Inspectors also highlighted the manager's duty to remind nurses of their accountability and the provisions of the Nursing and Midwifery Council's Code of Conduct guidelines. Some progress was noted on the return visit on 11^th April, but improvements were still required in the adequacy of care plans and records, clear documentation of accident records with follow up actions and supporting risk assessments, and formal supervision for all staff. It was also noted that recruitment procedures did not meet the required standard.
29. At the announced inspection on 16^th November 2005, inspectors repeated the earlier criticisms of accident records and care plans lacking specific detail, risk assessments and correlation between documents. They also commented on a lack of staff awareness of the difference between an accident and an incident. It was not evident staff received formal supervision.
30. On 25^th May 2006 in a further unannounced inspection CSCI noted that the home's hands on approach to care had been let down by insufficient and sometimes out of date records. The inspectors made a total of 15 requirements and 2 recommendations to improve practice.
31. In her 3-month probationary period the Appellant had three appraisals, on 22 April, 7^th June and 22^nd August 2002 respectively, which were carried out by Sister K, the home manager at that time. Her conclusions, though largely positive, did raise some issues about the Appellant's practice. There were comments about her level of knowledge of residents, some lack of confidence in delivering information about them to staff, and the fact she required a lot of practice in caring for the frail elderly and mentally ill. Sister K also noted the Appellant needed to demonstrate more expertise to HCAs and more hands on work when there were staff shortages. The training needs identified in April 2002, which included updating courses on care plans, were still outstanding In August 2002. Thereafter, in common with other members of staff the Appellant had no other appraisals, peer reviews or monitoring
32. During the four-year period the home's records show a number of unexplained falls by, or injuries to, service users. These lacked specific detail and do not appear to have led to any further investigation.
33. Some time in January 2005 Mrs F, Ms W and the Appellant were with Mr G., a resident aged 93 who had dementia. He was described as agitated, uncooperative, and flailing his arms around. They say they witnessed the Appellant shouting at him, being aggressive and punching him on the side of his head. Neither HCA reported the incident nor was it recorded in any of the home's logs.
34. On 23 May 2005 at about 11.30 p.m. Mrs N saw an exchange between the Appellant and Mr R, an 84 year old resident, which she noted in her diary as "Nurse B being rather irate and intimidating with R in the downstairs lounge. Shouting loudly, out of control, quite frightening. Had she hit him?". She did not report this to anyone at the home as she had lost confidence in the management, but she said she contacted CSCI.
35. On 29^th June 2005 the Appellant was suspended from duty following allegations of abuse of residents. This arose from:

•    a report by Ms S, an HCA on the day shift, that when she came on duty on 28^th June she had observed a purple bruise on Mrs M's eye. The relevant accident sheet completed by Mrs L the Deputy Manager noted other HCAs on night duty said they had noticed Mrs M's eye was red, the Appellant had denied being aware of any injury, and the injury itself consisted of purple bruising around the eye orbit and "conjunctival injection [sic] lower area".

•    a handwritten statement dated 27^th June 2005 given to Ms L by Mrs W about the earlier incident with Mr G in January. This had been prompted by Mrs W learning from a colleague about another allegation in respect of Mr R. In it she described her shock and distress and that of her colleague and her own feelings about her failure to report it.

36. These events precipitated a joint police, CSCI and social services investigation that lasted some 6 months, during which the home was requested not to contact the Appellant or to conduct any investigation of its own. In the course of this, enquiries revealed the Appellant's dismissal from Shelbourne Lodge. Eventually, charges against the Appellant were dropped by police on advice from the Crown Prosecution Service that prosecution would not be in the public interest. Ms S relayed this news to the Appellant in December 2005, confirming that the internal investigation would now commence.
37. The internal investigation, led by Ms S and the home manager, Mr G, began in January 2006 and a series of interviews were held with staff, Mrs N and the Appellant. Joint meetings also took place between the home's management and social services, although the police appear to have refused to disclose confidential information about their investigation.
38. On 19^th April 2006 the Appellant attended a disciplinary meeting held by Sister T, Deputy Superior General, at which she denied all the allegations put to her, including hitting Mr R, threatening Mr B and the further allegation about Ms M's black eye. She alleged Mr B was deaf. The disciplinary hearing ultimately concluded the Appellant's failure to disclose her previous termination of employment by Shelbourne Lodge had led to a complete breakdown of trust and she was summarily dismissed for gross misconduct. She did not appeal.
39. On 30^th June Ms Sanders notified POVA of the Appellant's dismissal, stating that the POVA office had previously advised her it would not be prudent to place the Appellant on the provisional register during her period of suspension given the time lapse during the police enquiries. Ms S cited the four allegations, stating that despite the inconclusive police investigation the Appellant had given the home unsatisfactory explanations of the events. Her eventual admission of her previous dismissal had led to a complete breakdown in trust.
40. On 26^th October 2006 the Secretary of State notified the Appellant of her provisional POVA listing. In her subsequent observations she again emphatically denied any wrongdoing, contending the allegations were no more than speculation, hearsay and innuendo, unsupported by substantive evidence and had been reported some time after the alleged incidents. She said she had not previously known about the sequence of events because she was not spoken to at the time, was unaware of the strategy meeting, the minutes of which contained inaccuracies, and she had been unaware the police were involved until an officer called at her home.
41. In her response Ms S said the delay in reporting was due to fear by Mrs N and the staff of reprisals from the Appellant. She described the Appellant as not operating in a manner expected of a responsible nurse as she appeared unaware of residents' conditions or injuries, she had failed to log incidents, and had wrongly alleged Mr R was deaf.
42. On 31^st August 2007 the Secretary of State confirmed the Appellant's POVA listing and POCA listing on the same grounds.
43. Appellant lodged her appeal on 9^th November 2007, stating that she has not been employed as a nurse since her dismissal and had not applied for any nursing or home care work.
44. At the outset there were a total of five allegations of misconduct

1. physical abuse – that on an unspecified date in January 2005 the Appellant had struck Mr G on his head

2. psychological abuse – that on 23 May 2005 the Appellant had behaved in a threatening and intimidating manner to Mr R

3. physical abuse – that on an unspecified date in June 2005 the Appellant put Mr R to bed on her own and he had subsequently complained his jaw hurt as a result of her actions

4. negligence or possible physical abuse – that on June 28^th the Appellant either caused or negligently ignored Mrs M's discoloured left eye.

5. the Appellant's admission of lying about being dismissed from her previous employment

The Respondent's Case

45. Having withdrawn the allegation of physical abuse to Mr R in June 2005 and the allegation of causing Mrs M's discoloured eye, the Respondents relied upon the Appellant's admissions and the allegations that she hit Mr G, had behaved in a threatening and intimidating manner to Mr R, and had negligently ignored Mrs M's discoloured eye in order to show the Appellant was guilty of misconduct and was unsuitable to work with vulnerable adults.
46. The Respondents asserted that the Appellant

•    was guilty of serious professional misconduct in lying to the home in order to obtain a job, in lying about her reasons for leaving Shelbourne Lodge and in concealing information about her past. That misconduct alone was sufficient to justify her listing and a finding of unsuitability

•    had agreed with all the witnesses on the key facts and circumstances of the incidents involving Mr G and Mr R, save that the Appellant denied hitting Mr G.

•    had finally conceded she might well have wrongly alleged Mr R was very deaf, had sought to introduce new facts and had either been unhappy to answer certain questions or simply did not know what to say in response

•    had sought to cover up her misconduct by repeatedly lying during the investigation and throughout her appeal.

47. There was no dispute that she had fallen short of the standards expected of a registered nurse. In the behaviour of the Appellant from the incident at Shelbourne Lodge, for which there was no proper justification, through to the initial deception over her application and the ensuing incidents, there was a causal link to the harm or risk of harm to vulnerable adults in her care. Furthermore, although obvious in many respects that the paperwork and standards in the home were less than satisfactory, this had no relevance to the incidents or admissions made by the Appellant, nor did she seek to rely on these shortcomings as reasons for her own professional failings.
48. The Appellant had expressed no remorse and had failed to face up to the truth of these events. Relying on the similarities in the case of BB v Secretary of State [2004] 421, PC [2004] PVA, there were more than sufficient reasons to dismiss this appeal.

The Appellant's case

49. In her notice of appeal the Appellant denied any misconduct that harmed or placed at risk of harm any vulnerable adult and described herself as a caring and conscientious nurse who stood up for appropriate nursing care, maintaining that, by reason of her qualifications, experience and attitude she was suitable to work with vulnerable adults.
50. She maintained that the extensive police investigation had resulted in no action being taken and there was no evidence of harm to any vulnerable adult. Furthermore, she had only been dismissed because it was alleged she had lied about the real reasons for her departure from Shelbourne Lodge. The incident at Shelbourne Lodge may have been misconduct but involved two other staff and in helping a mobile resident up from the floor contrary to an internal policy could not be said to have placed him at risk of harm. She explained the subsequent misconduct in relation to the application form by her desperation to get a job and the failure of the home to make the right enquiries.
51. None of these actions had amounted to the high level of incompetence, misconduct, grave deception or lack of insight shown in the case of BB v Secretary of State, nor had they placed any vulnerable adult at risk of harm. Nor did they amount to evidence of unsuitability, a conclusion further reinforced by the Appellant's candid admission, which served to distinguish her from the behaviour, attitude and the total lack of insight displayed by BB in a case involving far greater deception and incompetence.
52. In relation to the specific allegations, in her written evidence the Appellant challenged the accuracy of the home's records and the recollections of the witnesses and denied behaving inappropriately to Mr R or hitting Mr G. The evidence lacked the necessary requisite cogency and did not comply with the standard of proof, which had to be all the more cogent for such serious allegations. The witnesses had given unclear accounts that were not consistent with a reliable recollection of fairly straightforward events and which contradicted their contemporaneous evidence in relation to material facts. This included whether or not witnesses had observed marks on Mr G, their recollection of the relative position of staff and Mr G and whether the blow to his head had been seen or simply heard.
53. The Appellant admitted speaking loudly to Mr R and that she might have stood close to him. She also conceded that Mrs N must have been close enough to hear what was said and that she had been alerted to Mrs N's presence by her cough. She stated specifically that she had then stepped away from Mr R, at which point he had walked over to Mrs N. She agreed with everything Mrs N had said, save she denied shouting and was reluctant to agree this accurately described what had happened. However, Mrs N's account was not consistent and contained discrepancies and she had not been candid about her state of knowledge about other allegations against the Appellant.
54. The Appellant agreed with everything said by Ms W and Mrs F about the incident with Mr G, but continued to deny hitting him. She said it was her practice to withdraw if a vulnerable adult was agitated and leave someone else to obtain compliance. As with Mr R, this was a straightforward incident that witnesses should have recalled with sufficient clarity and accuracy, but there were glaring and severe inconsistencies in their accounts about central facts, rather than mere detail, and the written evidence provided further contradictions.
55. The mere fact of the admissions in respect of these incidents did not in themselves mean there had been misconduct, nor were they evidence of risk to any vulnerable adult or of the Appellant's unsuitability. In addition the allegation in respect of Mrs M could not be sustained given the conflicting accounts and the lack of evidence to suggest negligence on the balance of probabilities. Negligence could not be concluded from failing to notice the injury or infection since there was simply not enough known about what had happened, especially in the absence of any corroborative written record.
56. The Appellant asserted she had demonstrated appropriate insight in her admissions and her acknowledgement of the professional standards required.

Conclusions and Findings

Misconduct

(i) The Appellant's admission of lying about being dismissed from her previous employment on her application form in January 2002

57. There is no dispute on the facts that the Appellant was guilty of misconduct by her own admission. We agree that the way in which she chose to deal with this issue also showed a course of subsequent conduct amounting to misconduct.

(ii) Physical abuse to Mr G in January 2005 by striking him on his head

58. We found no reason to suggest that Ms W and Mrs F were anything other than credible witnesses. There was no evidence that they were biased towards the Appellant or that they had somehow concocted a story between them that had no basis in fact, indeed we note the Appellant's agreement with most of the oral evidence given by these witnesses. Furthermore, the Appellant became visibly distressed at the point in the giving of evidence when the HCAs referred to Mr G being struck.
59. Despite contradictions about some of the detail, it was abundantly clear something untoward and inappropriate had happened in the treatment or management of Mr R that was sufficient to alarm and distress these HCAs.

(iii) Psychological abuse to Mr R on 23^rd May 2005 by behaving in a threatening and intimidating manner

60. Mrs N was a persuasive witness whose account of events was lent further authenticity simply because it would have been unusual for a relative to be present in the home so late at night. .It was her routine to visit her mother most evenings and to stay with her until she was in bed and asleep. The accuracy of her account was supported by the contemporaneous note she made in her diary, which although very brief had the ring of authenticity. Her credibility was not undermined by her failure to report the incident to the home: it was very clear she had lost so much faith in the home and was so concerned about the potential consequences for her own mother, now deceased, that she felt unable to report her concerns to anyone else other than CSCI.
61. Mrs N gave a clear description of the Appellant behaving in a threatening and intimidating manner towards Mr R by standing or leaning over him and invading his personal space and shouting at him. Much of this tallied with the evidence given by the Appellant, which contained a number of inconsistencies and partial admissions. She agreed with everything Mrs N had said save that she denied shouting but conceded that she might have said Mr R was deaf when in fact he was not. She agreed that 'rather irate' referred to an irritated volume of speech and conceded she had spoken loudly to Mr R. She also agreed she may have stood close to him and that Mrs N must have been close enough to hear what said. She also added a new piece of information in saying that he may have been by the front door as he sometimes attempted to leave the home.
62. The extent of this agreement and the eventual telling admission provided further corroboration for Mrs N's version of events. However, when asked whether therefore the rest of the account must be true, the Appellant was evidently not happy to respond.
63. When the Appellant realised Mrs N was present she became flushed and bothered, a reaction that strongly suggests she had been wrongfooted. The Appellant's concession about speaking loudly, standing close to Mr R and reassuring Mrs N he would be "alright" also demonstrates that she did not understand his needs.

Physical abuse of Mr G

64. The accounts of Ms W and Mrs F were mutually consistent on the central fundamental facts. It is understandable that there were some discrepancies in their account given the lack of contemporaneous written evidence. The delay in Ms W writing up a statement of these events was likely to result in distortion of detail and a failure to record key elements, which she recollected to the best of her ability when giving evidence. The discrepancies do not undermine the central force of the evidence or its reliability: they merely serve to reinforce the contention of these two witnesses that they had not discussed the incident with each other. There may have been some lack of clarity about certain details but they were clear that Mr G was struck on the head.
65. These two witnesses came across as honest and credible. They were clearly upset about having to give evidence and obviously still felt guilty and remorseful at not having come forward earlier in the process leading up to the Appellant's dismissal. There was no evidence they held any grievance against the Appellant nor did she seek to suggest that they were motivated by any adverse or unfair view of her.
66. Despite the fact that they were not completely coherent about the whole detail of the incident, it was clear that at the very least something untoward and inappropriate in the treatment or management of Mr R had occurred that was sufficient to alarm and distress the two HCAs. It was very difficult to believe that an assault had not taken place given Ms W's evident distress and clear physical reference to the Appellant using her fist, evidence supported by a similar gesture from Mrs F.

(iv) Negligently ignoring Mrs M's discoloured eye on June 28^th

67. Staff awareness in relation to procedures was unclear and the observation of CSCI inspectors about their understanding of the difference between accidents and incidents was borne out in evidence. It was clear from the sheets we saw that the other incidents had not been reported. If the Appellant was guilty of negligence then she was typical of the general approach of the whole home. The fact that the discoloration to Mrs M's eye was noticed early in the day shift was an example of a general pattern observed throughout the records of day staff picking things up in the washing and dressing routines for residents.
68. The Respondents did not call any of the HCAs who had seen the mark, there was no other evidence in the form of photographs and the relevant incident sheet was only disclosed to the Appellant in the course of the hearing. She was therefore deprived of an opportunity to seek further evidence or challenge the version recorded on the incident sheet. In these circumstances the only reasonable conclusion is that the available evidence shows negligence on the part of the home itself in addressing this incident and demonstrates there was little or no understanding of the home's responsibilities or how to investigate incidents of this nature.
69. Many of the incident and accident sheets showed unknown causes recorded for other injuries, with a lack of subsequent investigation, a lack of recording of outcomes and a lack of signatures or countersignatures or independent monitoring. Similarly, there was no such completion for this incident and the fact that Ms L clearly meant 'infection' when she recorded 'injection' itself gave cause for doubt about what had happened and when. If Mrs M had developed an eye infection she could easily have worsened its appearance and changed its colour by the morning by rubbing it herself. The very insecure reporting procedure and the context of this incident makes it difficult to conclude that there is sufficient evidence to support a finding of misconduct.
70. In conclusion therefore, the Respondents established to the requisite standard of proof that there were three incidents of misconduct, including two incidents of abuse towards vulnerable adults that in themselves were individual acts amounting to misconduct and which pointed to a course of conduct amounting to misconduct.

Suitability

71. The Appellant previous dismissal for gross misconduct was subject to an appeal that was upheld. Her explanation for her conduct in lying on her application form and in concealing the information about her dismissal until some years later was simply not sufficient to remove the taint of professional unsuitability. Her concession that she recognised the seriousness of what she had done, albeit with the tacit assistance of poor employment practices, did not amount to sufficient mitigation.
72. The employment procedures in the home were clearly extremely unsatisfactory in that the Appellant was interviewed before filling in the application form and proper references were not taken up. She had obviously been offered the job and had accepted it before filling in the application form and it was all too tempting to adjust the wording to avoid any potential for her dismissal being discovered. The temptation must have been all the greater if she regarded the offence of failing to lift the patient properly was not that serious and at her level it might not have seem an unreasonable interpretation that she was at odds with management. However, the fact that the selection process allowed her to get away with not disclosing material information by not filling in the references section herself is not sufficient. She may well have thought she would lose the job otherwise, but she was foolish in the circumstances to apply to work in the same field.
73. The Appellant demonstrated a level of deception about the events at Shelbourne Lodge. She knew she would not get the job if she lied, so she said she had received insufficient support. However, she had already been offered the job at Ker Maria: she simply failed to tell the whole truth about Shelbourne and was not asked for any detail. She stated quite freely she had worked there, but the management of the home did not take up references from her last employer anyway and Ms S admitted Ker Maria's employment procedures were not robust.
74. Despite being evidently upset when questioned, the Appellant showed no remorse in respect of the incident at Shelbourne Lodge. She was somewhat inarticulate and gave the impression the basic explanation had been squeezed out of her. Indeed, any frank admissions she did make seemed to have been elicited in response to direct questions rather than emerging in a pro-active way. Most of her answers were very cautious, and she sometimes refused to answer difficult questions at all.
75. There was a paucity of detail about what had happened at Shelbourne Lodge from the Appellant in particular. From the available evidence there was no indication about what her colleagues had done in the circumstances nor what the outcome of the incident had been for them. The incident in itself may have been insufficient for gross misconduct. She referred to the fact that she had chosen not to adhere to the policy of the home, by which we think she must mean the guidelines linked to the policy. We cannot know whether it was clear from the home's documentation that she would be dismissed if she ignored a service user's history or did not act in accordance with guidelines. However, the fact remains she chose not to follow what she knew was the correct procedure and the way in which she chose to deal with these circumstances is important here. We have also concluded that the incident must have been of some substance.
76. The Appellant's assertions about the lack of support at Shelbourne Lodge had some resemblance to the situation at Ker Maria. However, at Ker Maria there were 3 incidents, 2 of which amount to misconduct in circumstances demonstrating an inability on the Appellant's part to act properly towards the vulnerable adults in her care. It was clear that something untoward had happened during the incident with Mr R. The Appellant spoke loudly to him, possibly even very loudly and gave the impression in her tone that she was somewhat irate. This alone indicated that she was unable to manage the frustrations of caring for the vulnerable elderly. It was also clear that the Appellant's behaviour towards Mr G was wholly inappropriate and the witnesses were very shocked by what they had seen.
77. The Appellant's behaviour demonstrated a lack of respect for service users in invading their space and acting in a demanding manner. The impression given by Ms W and Mrs F was, at the very least, of someone with an overbearing manner. Their evidence was consistent and both indicated they had addressed these difficulties by telling the Appellant to leave the particular service user to them, and thereby getting her out of the room. The Appellant herself stated that "then I could get them to do what I wanted."
78. Speaking in an unnecessarily loud voice is disrespectful to service users. Furthermore, by her admission about Mr R's alleged deafness, the Appellant showed she was prepared to lie to get out of responsibility for her part in this incident. She was asked when it would be appropriate to speak loudly for a purpose but she failed to give examples.
79. Ker Maria was by any standards not at that time a well run home and there was no proper monitoring, supervision or appraisal of staff. In consequence, we were unable to gain any independent view of the Appellant's practice save for the evidence from witnesses. Save for the 3 probationary assessments in her first 6 months, there were no further checks on the standard of the Appellant's practice. Despite the fact that each of the 3 bi-monthly assessments had identified shortfalls that needed to be addressed, that was supported by other evidence from her colleagues, there was no evidence that these concerns were ever satisfactorily addressed or even checked again thereafter. The Appellant therefore passed unnoticed for the next 4 years.
80. The fact that in her probationary stage a nun who managed the home identified the Appellant's lack of training and practice with regard to the vulnerable elderly meant that she did not start with a strong card. Despite the somewhat coded messages in the appraisal record, nevertheless there were also clear indications that she needed help with the management of staff. Nevertheless, in her oral evidence the Appellant did not perceive that there was anything wrong at all and she failed to say she needed anything more by way of training and support. Given that she was someone who had been dismissed twice for gross misconduct and had relied upon an alleged lack of support from management to justify her first dismissal this was somewhat surprising.
81. In working mainly night shifts and infrequently, it is undoubtedly the case that the Appellant compounded the lack of knowledge and experience noted in her probationary period. We also did not find her reasons for working with the elderly convincing.
82. The evidence from Ms S that the home had difficulties and from CSCI inspections, which identified very significant weaknesses between 2004 and 2006, do not amount to potentially difficult or frustrating circumstances that would undermine the Appellant's ability to act properly as a trained professional. They are not sufficient to exonerate her from the finding that she was guilty of improper behaviour in circumstances when she ought to have known doing what she was doing was contrary in particular to her own code of professional practice.
83. The Appellant lacked insight into the responsibilities of a longstanding and fully trained professional nurse with sole overnight responsibility for vulnerable adults. She did not appear fully to comprehend what was required of her in ensuring the needs and care of residents were appropriately met and staff appropriately managed. That with 33 years experience she ought to have a firm grasp of this is obvious, regardless of whether she was appraised, visited or monitored during her night shifts over a 4 year period.
84. There may be partial mitigation for some aspects of these events but the Appellant's own professional performance in this nursing home fell far short of the standards expected of a registered nurse. As the Tribunal observed in EK v Secretary of State [2006]716.PVA:

"Nursing is a self-regulating profession and is governed by the NMC as its regulatory body, so all registrants are required to abide by the NMC rules, standards and the NMC Code of professional conduct: standards for conduct, performance and ethics, known as the Code…[which] states that managers have a duty toward patients and clients, colleagues, the wider community and the organisation in which they work: "[W]hen facing professional dilemmas, your first consideration in all activities must be the interests and safety of patients and clients." The care provider should have a managerial and supervisory process to identify when a registered nurse is not meeting NMC standards to minimise the risk of error.

85. As stated in the preamble to the 2002 Code, nurses are personally accountable for their practice. This means the nurse is answerable for their own actions and omissions, regardless of advice or directions from another professional. The Code also sets out the legal duty of care nurses owe to their patients and clients, who are entitled to receive safe and competent care. This requires a nurse to act in such a way that justifies public trust and confidence, including identifying and minimising risk to those receiving care, and co-operation and effective communication with team colleagues.
86. Furthermore, the Code states that standards of competent practice require a nurse to possess the requisite knowledge, skills and abilities for lawful, safe and effective practice without direct supervision. This includes the need to keep these up to date by regular training throughout working life. The Code also stresses the importance of health care records as a tool of communication within the team, stating that nurses must ensure these are an accurate, consecutive account of treatment, care planning and delivery, which is completed as soon as possible after an event has occurred, and provides clear evidence of the decisions made and the information shared.
87. The NMC's Guidelines for records and record keeping states that recordkeeping is a fundamental part of nursing and the quality of this also reflects an individual's standard of professional practice: "[I]t is a tool of professional practice and one that should help the care process. It is not separate from this process and it is not an optional extra to be fitted in if circumstances allow…Good record keeping is a mark of the skilled and safe practitioner, whilst careless or incomplete record keeping often highlights wider problems with the individual's practice."
88. The NMC guidelines point out that the courts tend to adopt the approach that 'if it is not recorded, it has not been done', stating that professional judgement needs to be exercised to decide what is relevant and what should be recorded, taking into account the reliance professional colleagues will place on it. Thus good communication is essential: good record keeping helps to protect patient welfare by promoting high standards of clinical care, continuity of care, better communication and dissemination of information between members of the inter-professional health care team, an accurate account of treatment and care planning and delivery, and provides the ability to detect problems, such as changes in a patient's condition, at an early stage. A number of factors contribute to effective record keeping, including clarity, consistency and accuracy: records should be written "as soon as possible after an event as occurred, providing current information on the care and condition of the patient…" …

•    particular care and more frequent entries are necessary when patients "present complex problems, show deviation from the norm, require more intensive care than normal, are confused and disoriented or generally give cause for concern."

89. The Appellant showed she was clearly unsuitable to work with vulnerable adults by her lack of understanding of the serious nature of her actions and the risk to which this exposed them. She lacked insight into the consequences of these events and throughout the appeal process and the hearing continued to demonstrate a lack of suitability by her responses to key issues. Her admissions came late in the process and her assertions during the hearing that she understood the issues involved were not sufficiently persuasive of a capacity to respond appropriately in future.

Observations:

90. The lack of proper investigation and record keeping was a material factor in this case. Proper management of the home, including proper procedures and detailed records might well have meant the Appellant would not have been offered a job in the first place, or, alternatively, she would have been properly supervised and the lacunae in her practice identified earlier and more clearly. This home was chaotic and unsatisfactory in its practices, but not to the extent that CSCI took the ultimate step of closing it on grounds of major health and safety concerns and inspections did at least result in some improvements. Ms S confirmed this.
91. These failures were inherently unfair to the Appellant since if she possessed the ability to improve she was not ever faced with the need for it. Most importantly, they were also unfair and negligent to service users and led to a failure to protect them. It is notable that Ms S said had not seen certain key documents. As was stated in TM v Secretary of State [2007]1118.PVA "It is a statement of the obvious that it is critical to good practice to carry out a thorough, properly conducted and recorded investigation: failure to do so not only compromises those involved but risks a failure to uncover bad or even worse practice. Protection of the vulnerable involves an understanding that thoroughness in itself may be the best form of protection: this makes it possible to establish that what has precipitated the investigation is either merely the tip of the iceberg or nothing more than the original incident itself... We are not suggesting a more detailed investigation…would have revealed anything more, or less, simply that it is dangerous not to know more."
92. The correspondence from the Department of Health to the home makes it clear that "the information gathered will need to be sufficient for us to form the opinion that your organisation reasonably considered her to be guilty of misconduct…" We cannot understand how the POVA officers can have been satisfied as to the sufficiency of the information if the investigation was inadequate.
93. Regardless of the adequacy of the home's records, we note that the Treasury Solicitors once again ignored the basic principles of disclosure. The observations in the above case bear particular repetition in this case, "the stronger party must be doubly careful to ensure that full disclosure takes place before the hearing in order to ensure that the fullest possible evidence is presented to the Tribunal…[but]…the process of disclosure is not the same as the task of producing the bundle of final evidence that is regarded by both parties as relevant to the decision to be made by the Tribunal and is necessary to reach a fair conclusion…Full and frank disclosure requires the Respondents to make every effort to obtain all the records for the relevant period and for the Appellant to be afforded a proper opportunity to scrutinise them in order to decide what may be relevant to his appeal…an inadequate process of disclosure hampered both the parties and the Tribunal."
94. These issues and the positive obligations of disclosure on a public body are underpinned by Article 6 of the European Convention on Human Rights, the principles of which apply in this jurisdiction as they do in other jurisdictions dealing with matters of public policy and protection of the vulnerable. In the European Court cases of Sahin v Germany; Sommerfeld v Germany; Hoffmann v Germany [2002] 1 FLR 119, the court stated that:

'Correct and complete information … is an indispensable prerequisite for … striking a fair balance between the interests at stake.' As stated by Mr Justice Munby in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam) [2002] 2 FLR 730, "... the process of decision-making should be transparent and transparently fair. Nor is fairness confined to the purely judicial part of the process either - collective decision making surely carries with it collective responsibility and a collective duty to act fairly." 

95. We are satisfied that in this case, given our conclusions and the evidence that was available, our decision would have been the same had the investigation been properly conducted or the home's full records properly disclosed to the Appellant. However, the outcome of the events might well have been very different: it is possible the Appellant might have made many more concessions at an earlier stage and, had she then appealed in those circumstances the hearing would have been conducted with the fullest available evidence.

Appeal dismissed.

This decision is unanimous.

24 June 2008

Ms L Goldthorpe Nominated Chairman

Mr David Braybrook

Ms Janice Funnell