CW v Secretary of State for Health [2007] EWCST 1182(PC) (07 May 2008)
CW
-v-
SECRETARY OF STATE FOR HEALTH
[2007] 1182.PVA
[2007] 1223.PC
Before
MS M E LEWIS
(Nominated Chairman)
MR MICHAEL FLYNN
MS MICHELE TYNAN
DECISION
Heard on 23 April 2008 at the Care Standards Tribunal, 18 Pocock Street, London, SE1 0BW.
For the Appellant: Not represented
For the Respondent: Ms Kate Olley, instructed Jade Allan, Treasury Solicitor
Directions
The Background
The Evidence
(a) You work inflexibility. For instance, you are unable to change the way you wash Mrs E, even when asked, or depart from routine when asked by Mrs G. One of the fundamental principles of home care is making a client feel comfortable, safe and knowing that their needs are met. On the evidence, we believe that your inflexible way of working caused distress to the clients including Mrs S and the relative Mrs B.
(b) The way you speak and the words you have used to explain how you work with clients, suggest to me that your clients would feel uncomfortable being cared for by you and that in my opinion does amount to verbal aggression.
(c) You have illustrated on 2 August and again today how you lifted Mrs E. On both days I could see how you stepped on Mrs E's foot which matches up with the statements from the 2 carers. One of these incidents was in November and the other during the period April to June 2006. This leads me to believe that there is a pattern of behaviour, which leads to physical abuse.
The Law
Burden and Standard of Proof
Misconduct
(a) the number of the incidents constituting the misconduct established for the purposes of section 86(3)(a) of the 2000 Act;
(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 the potential to harm a vulnerable adult;
(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.
This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.
The findings of the Tribunal on the evidence.
Conclusions
Signed
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Melanie Lewis, Chair