England and Wales Care Standards Tribunal

VP v Secretary of State [2008] EWCST 1251(PVA) (31 October 2008)

VP

-and-

SECRETARY OF STATE FOR HEALTH

[2008] 1251.PVA

[2008] 1252.PC

Before:

Mrs. Carolyn Singleton (Chairman)

Ms. Michele Tynan

Mr. Tim Greenacre

The hearing took place at the Magistrate's Court, Loughborough on 21^st and 22^nd October 2008.

Representation

The Appellant, VP, appeared in person. The Respondent was represented by Ms. Leventhal of counsel.

DECISION

1. This appeal was brought under s86(1) of the Care Standards Act 2000. The Appellant appealed against a decision by the Secretary of State to place her name on the Protection of Vulnerable Adults (PoVA) list, the Protection of Children Act (PoCA) list and the list kept under s142 of the Education Act 2002, also known as List 99.
2. At a directions hearing before His Honour Judge Pearl on 24^th July 2008, a Restricted Reporting Order under Regulation 18(1) was made together with a further Order under that Regulation excluding members of the press and public from the hearing.

Facts of the case

3. The Appellant was employed as a care worker by Carewatch Care Services Ltd. She was dismissed from that employment on 5^th March 2007 following a disciplinary hearing. The reason for her dismissal was that she had falsified client log books on four occasions. She was dismissed for gross misconduct.
4. On 10^th April 2007 she was notified of her provisional inclusion on the PoVA list and PoCA list. She replied with her observations on 19^th April 2007. On 18^th February 2008 she was confirmed on both lists and List 99. She appealed to the Care Standards Tribunal in an appeal form which was undated but received by this Tribunal on 17^th April 2008.

The Law

5. Section 86(3) of the Care Standards Act 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 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.

6. There is, therefore, a three stage test and the appeal will succeed if the tribunal is not satisfied on all three aspects of the test. In other words, the Tribunal must be satisfied, on the balance of probabilities, on misconduct, harm or risk of harm and unsuitability.

Burden of proof

7. Following the case of DG v Secretary of State [2006], the burden of proof is on the Respondent to satisfy the Tribunal on the questions of misconduct and harm or risk of harm. If satisfied on those stages of the test, the burden shifts to the Appellant to demonstrate her suitability to work with vulnerable adults and children.

Evidence for the Respondent

8. The Tribunal heard from Louise Richards. She is the Care Manager of Carewatch. Her statement is at pages 60 to 67 of the bundle. She had joined Carewatch in August 2005 as manager and indicated that when she joined the organization she felt things could be improved. This became apparent through more rigorous spot checks than had been taking place before, and as a result of these checks, some bad practices had come to light. These included the fact that carers were not always signing the log sheets. Also, the log sheets were not being completed with sufficient information. Carewatch have a written policy for maintaining records. A copy of the policy is in the care worker handbook, a copy of which was given to the Appellant.
9. On 1^st November 2005, the Appellant had been given a verbal warning after taking her young child to the home of a service user whilst she was working. On 12^th December 2005 she was given a written warning relating to two incidents involving service users. She had not completed the log sheet in respect of cleaning calls she should have made and, where care was provided, had completed the log sheets inadequately, merely stating "all's well" or "all care given". The importance of detailing information in the log sheet was explained to the Tribunal. Ms. Richards explained that the information that should be contained in it informs other carers and Social Services of everything that goes on. Merely writing "all care given" tells them nothing. Every care worker has a manual which contains every policy and procedure relating to their duties.
10. In February 2007, Carewatch identified problems with the log sheets for four service users which involved entries made by the Appellant.

On 18^th February 2007, Lynette Carpenter who is a care worker for Carewatch , attended the home of HF, a service user, for a call she was scheduled to do from 11.45 to 12.15. She discovered that the lunch time call had already been documented by the Appellant. Although it was only 11.45 am at the time, the entry read "12.15 to 12.45. H in the bath, sausage and onion pie, made all she wanted and coffee". It is signed by the Appellant. It appears at document 107 of the bundle.

On 22^nd February 2007, Paula Noone, who is a coordinator for Carewatch, received a phone call at approximately 3.30pm from PS, the daughter of LP, a service user. She had checked the log sheet and an entry had been made, in advance, for the scheduled evening call that day. It was entered for 6.30 to 7.00 pm and stated "Soup and coffee for tea…left Lily well and fine". A copy of this log sheet appears at document 111 of the bundle. It is signed by the Appellant. At the request of Carewatch, those log sheets were removed at 4 pm. The Field Care Supervisor, Lynn Durrington was asked by Louise Richards to visit LP that evening to see if the Appellant did, in fact, arrive. According to Ms. Durrington, the Appellant did not arrive.

On 23^rd February 2007, the Appellant was suspended from work. She was notified by letter from Robert Mackenzie, the proprietor of Carewatch, which he hand delivered to her at 3.30 pm on that date. Ms. Richards told the tribunal that the Appellant's evening duties had to be covered by other care workers and they reported that for two further service users the log sheets had been filled in, in advance, by the Appellant. Document 116 is the log sheet for EG. It is completed by the Appellant as follows, "8.00 to 8.30 Nighty on.. drinks left…E fine and well". This appears at document 116. Document 117 relates to service user AC. That, also, has been completed in advance by the Appellant. It reads "6.30 to 7.00 Salmon and veg for tea…..A fine and well".

11. Ms. Richards told the tribunal that the Appellant was called to a disciplinary hearing after these matters had come to light. Notes were taken contemporaneously by Sharon Carter. A typed record is at document 119 to 121 of the bundle. Ms. Richard's evidence was that the Appellant accepted that she had completed the log sheets in advance but in relation to LP the Appellant maintained that she had attended her later on. The Appellant was dismissed from her employment.
12. Ms. Richards gave evidence that she had introduced more rigorous checks once she was appointed as manager. She had been keen to improve standards. As a result a few care workers had been dismissed for other types of misconduct, but, as far as she was able to recall, the Appellant had been the only one dismissed for the falsification of records. Had it been a problem that was widespread throughout the care workers, the rigorous checks introduced by her would have revealed it, and this had not, in fact, been the case.
13. Sharon Allen then gave evidence. She is the on call supervisor and field care supervisor for Carewatch. She filed a statement dated 17^th October 2008. In that statement and in evidence to the Tribunal she stated that she logs everything that she is told by careworkers and all that happens on her shift in her diary. The diary page for 22/02/2007 was copied and produced as evidence. There is no reference to the Appellant on it. In cross examination it was put to her by the Appellant that she, the Appellant, had phoned Ms. Allen during the evening of 22/02/07 ( to tell her that she had attended LP's home but that someone had already been there). Ms. Allen denied that this had taken place. If the Appellant had phoned her it would have been noted in the diary.
14. Paula Noone is a coordinator for Carewatch. Her statement appears at document 68 of the bundle. She confirmed that on the 22/02/07 she received a phone call from LP's daughter at 3.30 pm expressing her concerns that the log sheet had already been completed for the evening call that day. She reported this to Louise Richards.
15. Clare Williams is a field care supervisor for Carewatch. Her statement is at document 53 of the bundle. On 18/02/07 she received a phone call from Lynn Carpenter to say that she had attended HF's house in the late morning as requested but found that the Appellant had already completed the log sheet for lunchtime. Ms. Williams then realized that she had double-booked the lunchtime call. Ms. Carpenter told Ms. Williams that she had had to prepare HF's lunch and clear up an untidy kitchen.
16. Lynn Durrington is a field care supervisor for Carewatch. Her statement is at page 56 of the bundle. At the hearing she asked for paragraphs 5,6 and7 of that statement to be struck out because she was unsure of their accuracy. She referred the Tribunal to page113 of the bundle which are her notes relating to the events of 22/02/07. She had been asked by Louise Richards to go and check the tea time call at LP's. She went in a car which would not be recognized by the Appellant and parked across the road where she could see both entrances to the building. Whilst waiting in the car park, she saw the Appellant drive past on her way through the village. She did not stop at LP's home. Mrs. Durrington, therefore, went into LP's at 6.50 pm and left at 7.15 pm. She told the Tribunal that, on her arrival, LP's coffee from lunchtime was still there, having gone cold, and there was no evidence of any food having been prepared for tea. In cross-examination the Appellant put to Mrs. Durrington that there was another way of approaching LP's home which could not be observed from where Mrs. Durrington said she had parked. This was the route she took and she said that she arrived at LP's at 7.05 pm. Mrs. Durrington said that this could not be the case because she, herself, did not leave LP's until 7.15 pm. She wrote her times of arrival and departure down at the request of the management.
17. No other oral evidence was given on behalf of the Respondent but the Tribunal was asked to take into account the statements of Robert Mackenzie, Lynette Carpenter and Julie Highland, all of which had been served on the Appellant prior to the hearing. The Appellant had not raised any questions of any of those witnesses on receipt of the statements, despite having been asked to do so if she objected to any comments made by them within those statements.

Case for the Appellant

18. MP, the Appellant's son, gave evidence. He told the Tribunal that he clearly recalled the night of 22/02/07. He recalled that it was a Sunday and that the Appellant came home, stated that she had just been to LP's home but that someone had already done the evening call. He also recalled his mother phoning Sharon Allen to report this. Despite the fact that this event took place 18 months prior to the hearing he could remember it clearly. He was sure that it took place on a Sunday. When it was pointed out to him in cross-examination that 22/02/07 was, in fact, a Thursday, he said he must be mistaken.
19. The Appellant gave evidence by answering questions put to her rather than giving evidence in chief.. She accepted that she had made entries in the log sheets as alleged by the Respondent but justified it on the basis that she went on a regular basis to her service users, she knew their routine and it was only what lots of carers do. When she wrote what had been eaten for tea, she wrote what they always had. She wrote comments like "L's well and fine" because she assumed she would be well and fine. That was how she always was. In the case of LP she was aware that she needed encouraging to eat but still wrote up the log sheet in advance. She commented that LP always had soup and coffee for her evening meal and so she entered it in advance. It was a hard habit to break. Also, she was not well at the time. She stated that she had, in fact, attended LP on the evening of 22/02/07, and that, although Mrs. Durrington said that she had stayed at LP's until 7.15 pm, that was not the case. She did accept that, when she arrived, there was hot soup and coffee there and for that reason she went home and phoned Sharon Allen to tell her that the call had already been done. When asked specifically about pre-recording entries in the log sheets she admitted that she knew that was wrong, but denied that it had placed any service user at risk of harm.
20. In answer to questions from the Tribunal, the Appellant admitted that she had a young daughter to care for. Her partner is a long distance lorry driver but it did not conflict with her work. She always had a babysitter or a child minder. She was asked what the purpose was of writing an accurate and detailed account in the log sheets and she replied that she was well aware that it was needed to inform the next care worker, family members and doctors and to keep a close eye on the service user. "This is something that's embedded in my head". She was asked what advantage there was in pre recording calls. She responded "My mind took over. I knew the regime. I knew they would be well. I knew the clients". She denied having done it to save time; she had just got "carried away". She said that it was not something she would always do. She described it as a "mishap in my mind". For the vast majority of the time she filled them in properly. She insisted that she always returned to carry out the call she had pre-recorded. She pointed out that she had been supposed to call at LP's on 22/02/07 at 6.30 pm. She had repeatedly told Carewatch that she could not start work until 7 pm because of issues with child care and the fact that her partner does not return home from work until 6.30 to 7pm. On that evening she was also to attend the home of NV at 8.30 pm but his wife had requested that she come earlier. The Appellant's partner arrived home earlier than expected that evening so she decided to attend NV first and then go on to LP. That meant she arrived at LP's late. NV lived approximately 5 minutes drive away from LP.
21. The Appellant was asked to explain her assertion that she had been unwell at the time these incidents took place. She had undergone a hysterectomy in December 2006 and felt, with the benefit of hindsight, that she had returned to work too early. She had not asked her doctor for a report for the Tribunal. She had not asked anyone for a character reference because she did not want to get anyone else involved.

Tribunal's findings

22. The Respondent relies on 4 incidents of pre-recording log sheets as set out earlier in this decision to prove misconduct. The Appellant does not seek to deny any of these. The Respondent also seeks to rely on the allegation that on 22/02/07 the Appellant failed to attend the teatime call to LP. The Appellant denies this and says she did attend but not until 7.05 pm.
23. The Tribunal found the Appellant to be an inconsistent witness. Her evidence that she pre-recorded log sheets out of habit was not supported by her comment that she did not always do it. Her evidence as to the time she says she arrived at LP's is unsupported. She says she arrived at 7.05 pm. Mrs. Durrington says she was there until 7.15 pm. If the Appellant is correct, she would have met Mrs. Durrington at LP's home. Mrs. Durrington had the benefit of having written down the times involved at the specific request of the management of Carewatch. The Appellant did not specifically record the times. Even if the Appellant is correct in her evidence that she did indeed return to do the teatime call at LP's, she went at a later time than she should have done to provide an elderly lady with her meal; a lady who was not eating well and who needed to be encouraged to eat.
24. The Tribunal discounted the evidence of MP. He was mistaken in his belief that 22/02/07 had been a Sunday and it was unrealistic to expect him to recall, with the accuracy that he suggested he could, events from 18 months before

Tribunal's decision

25. As stated earlier in this decision, the statutory framework requires a three part test to be satisfied.

Firstly, has the Appellant been guilty of misconduct? The Tribunal is satisfied, on balance, that the pre-recording of log sheets amounts to misconduct. Indeed, the Appellant, herself, admits that she should not have done this.

Secondly, did that misconduct harm a vulnerable adult or place them at risk of harm? In her evidence the Appellant denied that anyone had been placed at risk of harm. The Tribunal does not agree. The service users in this case were elderly and vulnerable, dependent on carers doing what they were being paid to do. The pre-recording of log sheets meant that an inaccurate account of what was happening in the daily life of the service users involved was made. Given that the Appellant was able to tell the Tribunal why an accurate account should be kept, it follows that she must have known that by completing them in advance, the service users were exposed to the risk of harm. The Tribunal is satisfied on this aspect of the statutory test.

Thirdly, is the Appellant unsuitable to work with vulnerable adults? In the view of the Tribunal, the Appellant's reason for pre-recording goes to the very heart of the matter. Quite simply, she cannot offer any justifiable reason for doing it. She says it was a habit, but was inconsistent on this point as set out above. She says that she knew her client's routine. She says she was unwell at the time but did not produce any medical evidence to support that. Indeed her contention that she was ill was not raised until the hearing itself. The entries made in advance by the Appellant as set out in the log sheets are very specific. They are not merely general comments. The Tribunal took the view that they were so specific in order to be plausible and the Tribunal inferred, on the balance of probabilities, that the Appellant pre-recorded either because she had no intention of returning to carry out the call or, as is more likely in the Tribunal's view, she could not be confident that she would be able to carry out the call. She has other demands on her time. She has a young daughter for whom care has to be arranged. She has told Carewatch that she cannot start work until 7 pm. Her partner is a long distance lorry driver and, therefore, his time for returning from work is not definite. The Appellant's contention that it is only what other carers do is not supported by any evidence and, in any event, is irrelevant.

The Tribunal's view is that this demonstrates a pattern of behaviour which inevitably raises question marks over the Appellant's integrity. The keeping of accurate records is a fundamental part of her job. She deals with extremely vulnerable people and she has demonstrated herself to be unreliable. The Tribunal does not seek to suggest that the Appellant would ever intentionally harm a vulnerable adult, but her cavalier attitude to what is a most important element of her responsibilities must render her unsuitable to work with them. She has tried to "cut corners" and doing that in an industry where vulnerable people are reliant on you is unacceptable. For all these reasons she is also unsuitable to work with children. The burden of proof is on the Appellant to satisfy the Tribunal, on the balance of probabilities, that she is suitable to work with vulnerable adults. She has failed to discharge that burden.

26. The Tribunal's decision is that the appeals should be dismissed.
27. This is a unanimous decision

Carolyn Singleton

(Nominated Chair)

Michele Tynan

Tim Greenacre

Date: 31^st October 2008