England and Wales Care Standards Tribunal

 


Wright v Secretary of State For HealtH v Secretary of State [2008] EWCST 655(PVA) (21 October 2008)
Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list

IN THE CARE STANDARDS TRIBUNAL

JUNE WRIGHT Appellant

-v-

SECRETARY OF STATE FOR HEALTH Respondent

[2006] 655.PVA

Before:

Mr. Andrew Lindqvist (Nominated Chairman)

Mr. Peter Sarll

Ms. Caroline Joffe

The appeal was heard on the 17^th, 18^th, 19^th and 22^nd September 2008 at Bicester Magistrates Court, concluding submissions were heard on the 23^rd September 2008 at the Care Standards Tribunal, Pocock Street, London.

Mr. Jamie Carpenter of Counsel, instructed by Ms Helen Caulfield of the Legal Department of the Royal College of Nursing, appeared for the appellant.

Miss Zoe Leventhal of Counsel, instructed by the Treasury Solicitor, appeared for the respondent.

The appeal

Miss Zoe Leventhal of Counsel, instructed by the Treasury Solicitor, appeared for the respondent.

1. Mrs Wright appeals under section 86 of the Care Standards Act 2000 against the decision of the Secretary of State made on the 22nd of November 2005 to confirm her name on the list of individuals who are considered unsuitable to work with vulnerable adults, kept by him under section 81 of that Act (' the PoVA List ')
2. Mrs Wright's name was subsequently included (under section 2(c)) on the list of individuals who are considered unsuitable to work with children, kept by the Secretary of State under section 1 of the Protection of Children Act 1999, (' the PoCA list ').
3. It follows automatically from her inclusion in the PoCA list, that Mrs Wright is subject to a direction under section 142 of the Education Act 2002, prohibiting many sorts of educational work (commonly known as inclusion in ' List 99 ').
4. At a directions hearing on the 10th of April 2008, the Deputy President ordered that Mrs Wright's appeal be treated as being against her inclusion on the PoVA and PoCA lists and List 99.

Preliminary matters

5. Mrs Wright's inclusion on the PoVA list resulted from alleged misconduct in 1999 to 2003. The referral took place on the 10th of October 2004. The material provisions of the Care Standards Act 2000 came into force on the 26th of July 2004. Mrs Wright sought a judicial review of the Secretary of State's decision on the grounds that alleged misconduct occurring before the coming into force of the relevant provisions could not be the basis for a referral made after the provisions came into force. Other points and parties were concerned in the judicial review application, but so far as this appeal (which was stayed pending the outcome of the judicial review application) is concerned, the rejection of that contention by the Administrative Court established the Secretary of State's power to make the decision and cleared the way for the hearing of Mrs Wright's appeal.
6. On the 27th of April 2006 the President directed a preliminary hearing and on the 23rd of June 2006 he ordered a stay of the appeal pending the outcome of the judicial review application. The Deputy President lifted that stay on the 10th of April 2008 and gave directions about disclosure and the exchange of witness statements and a restricted reporting order prohibiting the identification of any vulnerable adult. The time for compliance with those orders was extended on the 16th of May 2008.
7. Despite the extensive and detailed order of the 10th of April 2008, all was not in order at the start of the hearing on the 17th of September. Counsel explained to the Tribunal that the Secretary of State had served a further statement of Mrs Maxine Tiffin on the 15th of September. The appellant did not object to such late service as she herself then wished to call two further witnesses, however, Mrs Tiffin's statement included allegations involving a Mrs H, and the appellant wished to see the notes and records concerning her. They were amongst the documents to be disclosed in the orders of the 10th of April 2008. Miss Leventhal told the Tribunal that Mrs H's notes and records had been sought but could not be found.
8. Mr Carpenter also raised the question of disclosure of any notes made by the Secretary of State of interviews of witnesses prior to the making of their statements.
9. The Tribunal suggested that it should hear Mrs Tiffin's evidence and decide whether an adjournment to make further efforts to obtain Mrs H's notes was really necessary. Mr Carpenter said that that would leave his point about the disclosure of the Secretary of State's notes prior to the interviews unresolved and Miss Leventhal expressed reservations because of the possible need to adjourn for some time and continue with Mrs Tiffin's evidence at the adjourned hearing.
10. The Tribunal adjourned for an hour to enable Counsel to consider the position. Counsel returned to say that Mrs H's notes were not in the hands of the current or previous owners of Brooklands, the nursing home at which she had resided and the appellant had been employed. The notes should not have been anywhere else and short of contacting numerous authorities around Oxfordshire, nothing further could be done to find them. Mr Carpenter, with some understandable reluctance, agreed that no proportionate effort could now be made to find Mrs H's notes.
11. Mr Carpenter's point about the Secretary of State's notes had been raised for the first time on the 11th of September. As Miss Leventhal pointed out, it was arguable that such notes were not subject to disclosure. As the point had been raised so recently she had not had time to consider the position either generally or in respect of any particular note/s the Secretary of State may have made. The Tribunal decided that the point had been raised too late to justify an adjournment at the appellant's behest.

The evidence

12. The hearing commenced at 2 p.m. on the 17th of September. In her opening submission, Miss Leventhal set out eight allegations of misconduct on which the Secretary of State relied; they had been made known in a document on the 7th of July 2008 as directed on the 10th of April. In summary, they were,

i) Force feeding of tablets and liquids

ii) Placing call bells out of reach

iii) Leaving a service user on a commode for too long

iv) Rough turning of service users

v) Rough and unprofessional catheterisation of a service user

vi) Casual and excessive administration of Lactulose

vii) Carelessly causing or permitting scalding with hot drinks

viii) Failing to disclose convictions for dishonesty in relation to benefits.

13. The Tribunal heard oral evidence from Mrs Maxine Tiffin, Miss Passmore Kwenda,, Ms Caroline Kirby, Miss Margaret Websdale, Mrs Audrey Brooks, Mr Mark Taylor, and from the appellant Mrs June Wright. All those witnesses had made written statements. In addition, there were written statements before the Tribunal by Miss Janine Cross for the respondent and Ms Jean Clowry for the appellant and there were testimonial statements for the appellant made by Ms Cynthia Ntabeni, Ms Irene Wyngaardt, Mrs Edna Sparks, Ms Pauline Holden and Ms Jenny Gregory. Further documentation ran to some 1500 pages, of which about a hundred were referred to in the course of the hearing.

The background

14. The eight allegations arose out of Mrs. Wright's employment at Brooklands Nursing Home in Banbury. There were in fact two establishments (Brooklands 1 and Brooklands 2), both run as part of the same business by a Mr. and Mrs. Brooks when Mrs. Wright went to work there in 1999. All the events with which the Tribunal was concerned happened at Brooklands 1, 14 Dashwood Road in Banbury. It consisted of accommodation for about 22 residents in single or shared rooms on three floors. The residents needed care of a variety of reasons, some temporarily for example while recuperating after operations, some permanently, for example the terminally ill or those suffering from dementia. The day at Brooklands was divided into two shifts, the day shift from 8 a.m. to 8:30 p.m., and the night shift from 8:30 p.m. to 8 a.m. At night, one nurse and one care assistant would be on duty, by day there would be one nurse and more care assistants to meet the residents' needs during their waking hours.
15. Mrs Wright joined the staff at Brooklands in June 1999 to work on the night shift. She had qualified as a State Enrolled Nurse in 1970, and, with some career breaks and variety, had over 20 years nursing experience when she went to Brooklands.
16. It is clear that, if Mr Carpenter's criticism of Brooklands as dysfunctional is a little harsh, relationships were to say the least strained. Mrs Tiffin, who otherwise admired Sister Websdale's ability and professionalism, at one point asked to be transferred to Brooklands 2 get away from her. There was evidence of shouting between Mrs Wright and Mrs Brooks. Ms Kirby described Mrs Wright as a ' horrible woman '. Mrs Wright described Mr and Mrs Brooks as irresponsible. Mrs Brooks found Mrs Wright to be insubordinate and confrontational.
17. The administration of Paracetamol to a resident, Mrs S, and the disagreements surrounding it provided, in the Tribunal's view, an insight into the workings of Brooklands at the time. Mrs S, like a number of the residents, had a prescription for Paracetamol as required. According to Mrs Brooks, the day shift had reported that Mrs S was very sleepy and difficult to rouse in the morning, increasingly after the appellant's nightshifts.
18. On the 2nd of November 2002, Mrs Brooks wrote to Mrs Wright asking her not to give Paracetamol to Mrs S. Mrs Wright wrote a note in reply, that she was giving Mrs S her prescribed dose of Paracetamol as needed to keep her comfortable. Mrs Brooks, perceiving no improvement in the situation, discussed it with her husband (who was in charge of non medical administration) and he wrote, but did not send, a letter dated the 7th of April 2003 suspending the appellant for giving Paracetamol to Mrs S as a result of which she could not be woken on the 5th of April
19. Reference to the medication administration records (pp 763, 751) shows that in 2003, Mrs S had Paracetamol on the 13th and 27th of February, the 12th of March and 3rd and 4th April. Mrs Brooks agreed that Mrs Wright was entitled to give Mrs S Paracetamol, if she thought she needed it.
20. The letter of suspension seemed a disproportionate response to five instances of giving Paracetamol in three months, no doubt it was for that reason that the suspension letter was not in fact sent. But the atmosphere engendered by such an episode cannot but have been an unhappy one. It evidently never occurred to Mrs Brooks to enquire about other possible analgesia for Mrs S neither did Mrs Wright suggest it.
21. Some earlier complaints against Mrs Wright had led to a meeting on the 17th of April 2002. It appears to have been convened by Mr Brooks, notice being given to Mrs Wright by an undated letter (p.122). The letter is far from clear, though it must have alerted the appellant to the fact that her performance was considered unsatisfactory. The record of the meeting shows that it began at 8:30 p.m. When Mr Brooks began to indicate dissatisfaction with the appellant, she, in effect, requested an adjournment to produce her own witness. Mr Brooks appears to have replied that he employed the appellant, not the other way round and the appellant thereupon declined to take any further part in the meeting, which is recorded as ending at 8:40 p.m. The poor arranging and handling of that disciplinary hearing (if that is what it was intended to be) must also have contributed to the animosity and ill-feeling, which was too much a feature of Brooklands life.
22. Mrs Wright was eventually suspended on full pay at the end of May 2003, at about which time Mr and Mrs Brooks were selling Brooklands to Mr and Mrs Taylor. According to Mr Taylor, they omitted to tell him about Mrs Wright's suspension pending a disciplinary investigation, and he was ' extremely surprised and somewhat disappointed ' to discover the addition to his payroll. Unimpressed by Mr Brooks's file relating to the disciplinary proceedings against the appellant, Mr Taylor undertook his own investigation and it was in the course of that investigation that much of the material relied on by the Secretary of State came to light and was recorded.
23. That caused the Tribunal some concern, because Mr Taylor was unlikely to have been keen to restore the appellant to the Brooklands staff and was therefore likely to have been astute to collect evidence of her shortcomings. Those concerns were heightened by the manner in which the statements were taken. As Mr Taylor put it, he prepared statements for the witnesses, Mrs Maxine Tiffin, Sister Margaret Websdale and Ms Janine Cross which reflected what they had said during their respective discussions with Mr Taylor. He then asked each to check and sign her statement, which they all did. Those statements were used at a disciplinary hearing on the 24th of November 2003, which resulted in the appellant's dismissal. Other than the appellant, no one who had been at Brooklands during the the appellant's time there was present at the disciplinary hearing according to the note of that hearing (p.78).
24. Another feature of this enquiry, which cause the Tribunal some disquiet was Mr Taylor's evidence that he prepared a summary of the evidence in the statements for use at the disciplinary hearing (p.75). Yet the summary contains allegations which do not appear in the statements. For example the summary records an allegation by Mrs Tiffin that the appellant. ' would not use glide sheets '. That does not appear in her statement (p.330). Sister Websdale is recorded in the summary (p.76), as complaining that the appellant frequently disobeyed instructions and requirements from superiors and senior nurses, an allegation which is not in Sister Websdale's statement (p.329).
25. Added to these concerns about the evidence were the facts that all the witnesses before the Tribunal were dealing with events at least five years ago and there was a very extensive reliance on hearsay.
26. It is appropriate to record in brief the Tribunal's impressions of the witnesses who gave oral evidence.

Mrs Tiffin struck the Tribunal as a careful and accurate witness, who was not to be persuaded to say anything that she was not sure about. It was clear that some events had made a deep impression on her and the Tribunal's only reservation about her evidence was that such events were seen through the eyes of a then new and very inexperienced care assistant, whose interpretation of what she saw may not have been wholly correct.

27. Miss Kwenda, who was also new to the position of care assistant, admitted in her written statement (p.59) to very little recollection of events at the time. The position was somewhat restored by some skilful examination in chief by Miss Leventhal, never crossing the line into the forbidden territory of cross-examination. However, Miss Kwenda admitted to signing a written statement for a disciplinary hearing without reading it properly and in general, the Tribunal found her evidence to be of limited assistance because of her poor recollection and casual approach to making the statement.
28. Ms Kirby seemed very ready to criticise. In a written statement, she described the appellant as a ' horrible woman ' (p. 65), but the basis for that opinion seemed slender. She was similarly critical of another nurse, whom she described as unkind and shoddy. The Tribunal feared that she would be too ready to ascribe to the appellant any misdeed or mishap she happened to hear about.
29. Sister Websdale (as she was invariably called) had disagreements with the appellant on a number of matters. She appeared to be a careful and accurate witness, but it seemed to the Tribunal that she had looked for potential criticisms of Mrs Wright - one of Sister Websdale's complaints was that Mrs Wright would conclude a note with a flourish or a wiggly line whereas the Brooklands way was to end with a ruled or at least a straight line.
30. Mrs Brooks, perhaps surprisingly for a Matron, appeared to have trouble with documents and records. She needed the help of either the Tribunal clerk or the representative of the Treasury Solicitor to find pages in the documents. Although her views were firm and a definite, the basis for them seemed less substantial, which may well have contributed to the appellant's impression that Mrs Brooks was inclined to lay down the law without, as the appellant saw it, good reason.
31. Mr Taylor seemed to be a truthful witness whose recollection was dim, particularly in relation to the manner in which he collected information for the disciplinary hearing of the 24th of November 2003 which resulted in the appellant's dismissal and the subsequent referral, which resulted in her inclusion in the three lists.
32. The appellant, Mrs Wright, appeared not to ' suffer fools gladly '. In a similar vein, she may well have been impatient with Matron (Mrs Brooks) when the latter's explanation for a rule or regime seemed to the appellant to be inadequate. But she appeared to the Tribunal to be a devoted and conscientious nurse with a genuine concern for her patients. She was moved by the death of Mr. E, whom she described as a brave old soldier.

The burden of proof

33. Counsel agreed that the burden of proof lay on the Secretary of State. That is plainly right because section 86 (3) of the Care Standards Act 2000 requires the Tribunal to allow the appeal unless it is satisfied as to misconduct and unsuitability. The general standard of proof is the civil standard (the balance of probability), and neither Counsel suggested that a heightened standard was appropriate.

The alleged misconduct

Force feeding tablets and liquids

34. Mrs Tiffin said in her written statement of the 17th of September 2008 (p 152a) that she had seen the appellant forcing pills and drinks on residents. One resident, Mrs M, had gaps in her teeth through which the appellant would force tablets if Mrs M was reluctant to take them. Mrs Tiffin recalls hearing that Mrs M. had lost one of her teeth and working out that it must have happened during a night shift on which she had worked with the appellant. Mrs Tiffin said she felt really bad about it but she did not see Mrs M's mouth at the time. Mrs Tiffin had made a statement on the 10th of May 2003 as part of a process of gathering information about the conduct of the appellant. That statement contains no mention of force feeding tablets or liquids. In her oral evidence to the Tribunal, Mrs Tiffin insisted that she had seen the appellant giving drinks forcibly and was convinced that the loss of Mrs M's tooth was caused by conduct of that sort on the part of the appellant, though she had not seen it happen.
35. Miss Kwenda said in her written statement of the 16th of September 2008 that she remembered that the appellant would push the beaker into a resident's mouth if he/she were reluctant to drink from it but it did not seem to her to be done in a bad way. In her oral evidence, Miss Kwenda described seeing the appellant force a beaker into Mrs M's mouth, causing bleeding at the corner of her mouth. Miss Kwenda had seen the same thing happen to other residents but could not remember any specific occasion.
36. Ms Kirby recounted a complaint by a resident, Mrs H, that the appellant had forced her to take milky drinks which she did not like. She recalled that Mrs M had a blood blister on the corner of her mouth one morning after the appellant's nightshift and that Mrs M had once lost a tooth. In cross-examination Ms Kirby agreed that Mrs M had a problem with teeth falling out and that she could not remember if Mrs M had named the appellant in connection with the incident.
37. Sister Websdale said in her written statement (p.92), that Mrs H had complained to her that ' that other nurse ' had forced her to drink milky drinks and that she, Sister Websdale, had sought and received confirmation from Mrs Tiffin. Sister Websdale's oral evidence was of being told about the appellant's forceful technique with the beaker by residents and care assistants.
38. In order to reach a conclusion on this matter and on the other issues of misconduct, the Tribunal had to estimate the gravity of the various incidents recounted by the respondent's witnesses. The direct evidence, generally the most reliable, was five years old at the least. The indirect evidence, much of it hearsay and not generally so reliable, was also five years old. There was a possibility of an element of bias because the appellant was not a popular member of the Brooklands staff and because the evidence was collected for use against her. The Tribunal therefore sought confirmation from the contemporary records. As Sister Websdale put it, a minor bruise might well not be recorded, a major one should be.
39. A serious incident might be recorded in the accident book, it might necessitate a visit from the doctor, medication might be prescribed, there might even be an admission to hospital. At the Tribunal's request, Miss Leventhal prepared a helpful schedule showing where the eight instances of misconduct relied upon found reflection in contemporaneous records. In only one instance was there any note relevant to any of the allegations of misconduct, other than in the daily record. That was a note made by the appellant herself in the accident book in relation to scalding. In particular no injury to any resident alleged to result from force feeding was recorded anywhere outside the daily record. In relation to Mrs M., the daily record (p.1359) records ' another tooth found in bed at 0200 ' on the 3rd of January 2001 and (p.1361), on the 20^th of January 2001, ' tooth fell out, while Mrs M. having bed time milky drink, no bleeding, socket dry.
40. Mrs Wright said that usually residents would take their drinks and medication. She would sometimes hold the beaker to their mouths ' like feeding a child '. If they declined, she would try again later, noting it in the daily record. She had never forced a drink on any resident.
41. The Tribunal bore in mind that medication was prescribed because residents needed it and that it was important to maintain fluid intake. A certain amount of persuasion and encouragement was therefore not only legitimate but necessary in the interests of the residents' welfare. The Tribunal was not satisfied as to any injury caused by the appellant's alleged forcible feeding. Mrs M.'s teeth were susceptible to spontaneous detachment and there was nothing to link the blood blister on Mrs M.'s mouth to anything done by the appellant. It is not clear that what is recorded in the daily record indicates any force-feeding; there is no relevant record anywhere else. That indicates to the Tribunal that what occurred was unremarkable and within the boundaries of legitimate and necessary persuasion. And as such it may have alarmed Mrs Tiffin and Miss Kwenda, during their early experience as care assistants; it seemed probable to the Tribunal that their later accounts were exaggerated because of the focus of the enquiry at the time. The statement of Janine Cross of the 14th of November 2003 (p.31) with regard to the allegation seems to be an example of such exaggeration. So far as the force-feeding allegation is concerned, the Tribunal finds no misconduct.

Removal of call bells

42. Mrs Tiffin said that she had seen the appellant take call bells away from residents and hang them over their cot sides. Ms Cross said that after the appellant's shift, several call bells were on the floor out of the residents' reach. She said that it was done in such a way that it could not have been accidental. Ms Kirby said that two residents, Mrs D and Mrs H, had complained to her that the appellant had taken their bells away. She had noticed that Mrs H's bell was out of reach when she came on duty. In cross-examination Mrs Tiffin said that she would not have seen Mrs Wright moving a resident's bell, but she did hang them over the cot sides, though not systematically.
43. Sister Websdale gave evidence of reports from residents, in particular, Mrs D, of removal of call bells. Mrs D told her that she did not have a call bell when Mrs Wright was on duty.
44. Mrs Wright was able to point to numerous records of her answering residents' bells. Four of those occasions relate to Mrs D. If Mrs Tiffin recollected that Mrs D's bell was hung over her cot side, then Mrs Tiffin was mistaken, because records show that Mrs D did not have cot sides while Mrs Wright was at Brooklands.
45. The Tribunal had serious reservations about the evidence of Ms Cross. It appeared, like her evidence about the force-feeding, to be biased and exaggerated. It could not be tested in cross-examination, Ms Cross having lost her memory of events recounted in her statement as a result of a medical condition. Her conclusion that the position of the bells on the floor could not have been accidental was not acceptable without explanation and was at variance with that of Mrs Tiffin, who said that bells would be hung over cot sides. That evidence had its own difficulties; not all the residents had cot sides and it appeared unlikely that cot sides would necessarily be out of reach. Sister Websdale's report of Mrs D's complaint about not having a bell when the appellant was on duty was at odds with the records of the appellant answering Mrs D's bell. There was no evidence of harm suffered by residents unable to call for assistance because bells had been removed. The evidence did not satisfy the Tribunal that Mrs Wright had removed any bell from a resident and accordingly the Tribunal finds no misconduct in that respect.

Leaving a resident unattended on a commode

46. Mrs Tiffin, in her statement of the 17th of September 2008 referred to her statement of the 18th of May 2003 in which he she said that a resident, Mrs W, had confided in her that she had rung her bell and that the appellant had answered it and put her on her commode. The appellant had then left her and not returned until an hour later by which time Mrs W had made her own way back to bed, having no bell to ring for assistance. On the appellant's return Mrs W asked if she had forgotten about her, to which the appellant replied that Mrs W was quite capable of getting back to bed by herself.
47. Mrs Brooks records in her written evidence that Mrs Tiffin expressed concern to her about what Mrs W had said. She, Mrs Brooks, spoke with Mrs W, who in substance, repeated her complaints to her. Sister Websdale also recalls Mrs W's complaint, but neither she nor Mrs Brooks made any significant reference to it in their oral evidence.
48. This was one of the matters taken up by Mr Taylor as part of his investigations, he said he spoke with Mrs W but did not want to involve her in proceedings. Mrs W had said, according to Mr Taylor, that if the appellant returned to Brooklands, she would consider leaving.
49. Mrs Tiffin had expanded her allegation in her statement for Mr Taylor's disciplinary proceedings, saying that it involved a couple of residents for more than two hours. Cross examined, she said that she could not remember where the two hour allegation came from, but other incidents seemed to her to be more important at the time, implying that, for that reason, her account of the incident involving Mrs W. is less careful.
50. Mrs Wright was able to point to notes in the early part of 2003 recording that Mrs W was becoming more mobile, in particular ' walking from chair to commode and commode to bed, slow but fine ' and ' walking well with frame ' (p.446). The incident itself is probably recorded in daily notes made by the appellant (p.449), as occurring on the 3rd of April 2003 - ' Put self into bed using zimmer from commode. All care as needed'.
51. Mrs Wright recalled the incident. She said that she was on duty with Miss Kwenda. Mrs W rang her bell at about 5.30 a.m. and was helped to her commode. It was the custom at Brooklands to allow the residents privacy while on the commode. While the appellant was on her way to Mrs W, another resident, Mrs D, had called out to her. The appellant had told Mrs D that she would be with her in a moment; she left Mrs W on her commode while attending to Mrs D. In the event Mrs D required only reassurance and Mrs Wright went back to Mrs W's room to find her back in bed. The appellant did not disturb Mrs W but went back with her morning drink about half an hour later, when Mrs W asked ' Did you forget me? ' to which the appellant replied that she had not forgotten her and that Mrs W was able to get back to bed by herself.
52. The Tribunal found, in the absence of any direct evidence of the occurrence, that the indirect evidence was not consistent or reliable. There was nothing wrong with leaving a resident alone in her room on a commode; it was quite proper for them to have privacy. The alleged misconduct consisted of leaving Mrs W for too long. She had asserted an hour, which had become two hours (and applied to another resident also) in Mrs Tiffin's almost contemporaneous statement. The Tribunal did not share Mrs Tiffin's confidence in Mrs W's assessment of the passage of time, nor was it satisfied that Mrs W did not have a bell within reach. It seemed likely that Mrs W was perhaps irritated that Mrs Wright was not there to help her back to bed, managed well by herself, but felt the need to complain at what she saw as her abandonment. The complaint fell on fertile ground and grew in Mrs Tiffin's statement, without other explanation, to two residents for two hours. The Tribunal did not find any misconduct on the appellant's part in relation to Mrs W.

Rough turning

53. It was necessary to turn the residents at night to avoid bedsores. Usually, the nurse and the care assistant did it together, but in the absence of particular difficulty, it was sometimes done by one of them, most often, the nurse. Mrs Tiffin describes in her statement of the 17th of September 2008 how Mrs Wright turned a resident, Mrs H, very quickly by herself, without any explanation of what she was about to do. Mrs H was frightened and said to Mrs Tiffin, ' Please help me '. When Mrs Tiffin suggested to Mrs Wright that she might have explained what she was about to do, Mrs Wright gave her the ' silent treatment ' for the rest of the shift. The incident is recorded in Mrs Tiffin's handwritten statement of the 10th of May 2003 without mention of Mrs H saying 'Please help me' - words which Mrs Tiffin in her oral evidence said made a deep impression on her. According to Ms Kirby, Mrs H complained to her about the appellant's rough turning.
54. In support of this allegation evidence was adduced purporting to show that the residents were in fear of the appellant. Sister Websdale said that Mrs H, at one time, would scream when she saw her in the doorway of her room. Sister Websdale was upset, but discovered a while later in conversation with Mrs P, who shared a room with Mrs H, that Mrs H did not have her glasses on and must have mistaken Sister Websdale for the other nurse who forced her to drink and forced tablets on her. Sister Websdale then spoke with Mrs H, who complained that the appellant had turned her ' like a sack of coal ', and arranged to sing ' She'll be coming round the mountain' as she approached Mrs H's room to reassure Mrs H that it was not the other nurse. According to Sister Websdale that put an end to Mrs H's screams.
55. Mrs Wright agreed that she did turn Mrs H. alone and without using a glide sheet, which she did not like using because there were only two or three available, so they had to be shared between a number of residents which Mrs Wright considered unhygienic. Her request for more glide sheets met with no response; sometimes there was a clean one available for Mrs H, if so Mrs Wright would use it, if not she would turn her without one. She recalled Mrs Tiffin suggesting the use of a glide sheet but not Mrs H saying ' Please help me ' and also remembers that for a week or so Mrs H had screamed at the sight of a nurse's uniform, though the appellant never found out why.
56. It seems strange to the Tribunal that Mrs Tiffin failed to mention in her statement of the 10th of May 2003, Mrs H's plea for help, which, according to her oral evidence made such a deep impression on her. Maybe the explanation lies in Mrs Tiffin's view, as an inexperienced carer, of a task carried out with brisk efficiency by an experienced nurse. It may have appeared to Mrs Tiffin to be much more unsympathetic than it really was and the pathetic qualities of Mrs H's plea may have grown in Mrs Tiffin's recollection over the years. However that may be, the Tribunal is not satisfied that the appellant ever turned Mrs H or any other resident roughly or unkindly, nor that any such action on the appellant's part was the source of Mrs H's screams or her plea for help, which were evidently not reflected in the conduct of any other resident.

Rough catheterisation

57. The catheterisation of Miss E. appeared to the Tribunal to be the prime example of the distortion by inexperience of Mrs Tiffin's otherwise careful and accurate evidence. She described in her statement of the 10th of May 2003 how the procedure had made her feel sick and faint. Miss E. appeared to be in a lot of pain and was bleeding. Mrs Tiffin said in her statement of the 17th of September 2008 that she had previously seen such procedures carried out by other nurses, much more sympathetically. At the disciplinary hearing in May 2003, Mrs Tiffin had given a similar, if less clear account (p.295).
58. Although Mrs Tiffin never gave any date for the incident, it appeared likely that it had occurred on the 9th of September 2001. Mrs Wright had made a note on that day in the daily record relating to Miss E., ' Catheter change as abdo tight, stomach distended and painful -- fresh blood on end of catheter removed and concentrated haematura -- offensive 800 mls on introduction of new catheter. ' Mrs Tiffin's evidence to the Tribunal was that ' there seemed to be a lot of pushing, pulling and blood. She (Miss E.) seemed to be in agony '. Questioned by the Tribunal, Mrs Tiffin added that she had not seen the procedure completed because she felt ill and faint. There was blood in the catheter bag at the outset and fresh blood on the catheter.
59. Mrs Wright told the Tribunal that Mrs Tiffin was inexperienced and wary of ' mess and blood ' but she saw it as part of her job as an experienced nurse to help her through it. Miss E was inclined to remove or pull at her catheter. There was a little urine with blood in the catheter bag, Mrs Wright suspected that something was wrong and felt Miss E's stomach, she then re-catheterised her, probably using an anti-septic cleansing gel.

60. The Tribunal's view of the incident is that Miss E.'s catheter was evidently blocked, quite possibly by dried blood, because she had pulled at it. A relatively small amount of blood mixed with urine (as in the catheter bag) or water can give an impression of profuse bleeding, which is how things looked to the inexperienced Mrs Tiffin. Mrs Wright felt Miss E.'s abdomen, quite properly investigating the cause of the problem. Miss E's bladder was painfully full - it proved to contain 800ml of urine. No doubt the incident was distressing to Miss E and upsetting to Mrs Tiffin. But the Tribunal's view is that Mrs Wright acted properly and promptly to alleviate Miss E's suffering without being either rough or unsympathetic. Accordingly, the Tribunal finds no misconduct in Mrs Wright's catheterisation of Miss E.

The administration of Lactulose

61. The allegation against Mrs Wright is that rather than measuring Lactulose for each resident, she would give it direct from the bottle by pouring it into the resident's drink. Evidence was given to that effect by Miss Kwenda, in the form of a short note made on the 18th of May 2003, ' Doesn't measure Lactulose, just pours it into patients' drinks ', reduced somewhat in her statement of the 16th of August 2008 to ' I can remember one instance ……….' and expanded in her oral evidence to ' I saw that quite a few times '. Miss Kwenda's evidence at the disciplinary hearing in May 2003 had been recorded as, ' She found that Nurse Wright was not measuring the Lactulose but administering it straight from the bottle '.
62. In April 2003, Mrs Brooks was concerned about the Lactulose and carried out an investigation described by her in a statement made on the 16th of May 2003. On the 9th of April at 6 p.m. after the medicine round, Mrs Brooks, with a care assistant, checked the Lactulose bottle and found 290ml. At 8:30 a.m. on the 10th of April, 160ml remained in the bottle, so 130ml had been used during the night shift. That bottle was not used on the 10th of April during the day, but replaced for use by the night shift. All 160ml were consumed during the night of the 10/11th of April, leaving the bottle empty.
63. Asked for an explanation, Mrs Wright produced a written note of Lactulose consumption (p.222). It shows 10ml doses, one at midday, five at tea and seven in the morning, together with one 5ml dose. That makes a daily total of 10 + 50 + 75 = 135ml. The use of 290ml over two days was not excessive, because there were other residents who took Lactulose on an ' as required ' basis. Cross-examined about it, Mrs Brooks was unable to point to any flaw in Mrs Wright's calculations.
64. Precise measurement of Lactulose consumption was made much more difficult because of the improper way it was generally dispensed. Each consumer had his/her own bottle and should have taken the medicine from his/her own bottle and no one else's. But that would have meant quite a number of Lactulose bottles on the medicine trolley, for which there was not room. So the practice developed, as described by Sister Websdale, of using somebody's bottle for all the residents and when that bottle was finished using somebody else's. The nature of Mrs Brooks's investigation on the 9th - 11th of April 2003 makes it clear that that practice was followed, without, apparently, any objection from Mrs Brooks. While it means only one or maybe two bottles of Lactulose on the trolley, it also means that it is practically impossible to keep track of the administration of the medicine.
65. Mrs Wright accepted that she had followed the Brooklands practice, but did not accept that she had ever dispensed Lactulose without measuring the dose. Only Miss E. had it in her drink (which can be a proper method of giving it). It is possible that if a few drops remained in the bottle, Mrs Wright might have tipped them into Miss E's drink rather than leave a small amount in the bottle, but she could not recall doing so.
66. The Tribunal considers the evidence about the Lactulose to be particularly unsatisfactory. Only Miss Kwenda could give any direct evidence, her recollection was admittedly very poor and she was very uncertain about the number of times she claimed to have seen Mrs Wright pouring Lactulose direct into residents' drinks. The Brooklands method for dispensing Lactulose was not only casual and improper, but seemed to enjoy the tacit approval of senior staff (Sister Websdale) and Matron (Mrs Brooks). That evidence falls some way short of satisfying the Tribunal of any misconduct on the part of Mrs Wright.

Scalding

67. The allegation of scalding with hot drinks relates to two residents, Mrs S and Mrs E (not the Miss E of the catheterisation incident). The evidence about Mrs S is confined to an entry by Mrs Wright in the accident book. Save that the accident happened on the appellant's shift, no fault on her part can be suggested. The burden on the nurse in charge of a shift is doubtless both exacting and weighty, but it cannot extend as far as a guarantee of no mishaps.
68. Mrs E seems to have suffered spilt tea twice, on the 21st of May and 31st of December 2000. Her daily notes were not available to the Tribunal, but the incidents are recorded in the accident book. The earlier entry (page 868) appears to have no connection with the appellant. The incident of the 31st of December 2000 is recorded by the appellant (pp.882/3). The notes about the 24 - 48 hour follow up are in another hand, as is the word ' none ' in the witness column. Cross-examined about the incident, Mrs Wright said that Mrs Tiffin was in the room when Mrs E. spilt her drink. Sister Websdale records (p.95), that a few weeks after the incident Mrs E had told her that the nurse had knocked the tray, causing the drink to spill. Sister Websdale assumed that it had been an accident. Some time later, Mrs E told her that after knocking the tray the nurse had left the room and on her return said. ' What have you done? ', trying to make out that it was Mrs E's fault.
69. Mrs Brooks said in a statement of the 15th of August 2008 that Mrs Wright came to tell her that Mrs E had spilt a drink. Mrs Brooks went to the sitting room and saw that Mrs E was quite badly scalded. She says that Mrs Wright initially pretended that Mrs E had knocked the drink over but it was obvious to Mrs Brooks that she could not have done so. Mrs Brooks did not think that Mrs E could have reached her drink and she, Mrs E, said that Nurse Wright had knocked the drink over. Cross-examined, Mrs Brooks accepted that a spilt drink did not necessarily indicate misconduct. She mentioned the incident in her 'second' statement of the 19th of August 2008, recalling that it had happened in Mrs E's room rather than in the day room as she had suggested in her statement of the 15th of August.
70. The Tribunal was not satisfied that the appellant had in fact spilt drink. The statements to that effect were made in response to a request for accounts of the appellant's misdemeanours. There was a natural tendency to recollect incidents which might have suggested fault on the appellant's part and to supply the missing factor from faulty recollection. The evidence that Mrs Wright had spilt Mrs E's drink is entirely hearsay, over seven years old. The incident is recorded, by the appellant, in the accident book (pp. 882/3). It does feature in the allegations made against the appellant in 2003 (p.122), but as giving hot drinks to residents rather than spilling them or falsely denying responsibility for doing so. Indeed, the record made at that time implies that the resident herself had spilt the drink.
71. Sister Websdale in her statement of the 13th of November 2003 does not suggest that the appellant spilt the drink, but that she applied cream to the scalds 'inappropriately'.
72. The Tribunal finds that the evidence about scalding is lacking in cogency and consistency, and does not establish any misconduct on the appellant's part.

Failure to disclose convictions

73. It was not disputed that on the 15th of February 1996 Mrs Wright was convicted at Banbury Magistrates Court of three offences of falsely furnishing a document or information to obtain benefit or payment, contrary to section 112(i)(b) of the Social Security Administration Act 1992. She asked for seven further offences to be taken into consideration and was conditionally discharged for 12 months (p.1493). Miss Leventhal was unable to provide any details of the offences. Mrs Wright's account was that she was ' working on bank ' that is on an occasional basis, and informed the Benefits Agency of some, but not all, of her work, thereby obtaining benefit payments to which she was not entitled. Her recollection of the proceedings at Banbury Magistrates Court was that they concerned the amount overpaid; she had little recollection of any of the criminal aspects of the proceedings such as pleading guilty to the offences or asking for other offences to be taken into consideration.
74. It was also common ground that Mrs Wright had not disclosed these convictions when completing her application form for work at Brooklands, though she had confessed to being fined in the 1980s for not having a television licence (p.960).
75. It seems to the Tribunal that failure to disclose convictions for dishonesty, must, in the circumstances, amount to misconduct. Mrs Wright's selective recollection of the Magistrates Court proceedings was the least satisfactory part of her evidence.

Harm to vulnerable adults

76. Miss Leventhal argued that by concealing her convictions the appellant prevented her prospective employer from making a complete and informed assessment of her trustworthiness and integrity. Putting someone whose trustworthiness and integrity are suspect in charge of a night shift is to put the residents under her care at risk of harm. The Tribunal was referred to the decision in McNish v. Secretary of State for Health and Secretary of State for Education and Skills [2006] 0646.PVA/0647.PC but found it of limited assistance because the offences in that case were more serious in themselves and represented a greater risk to vulnerable adults.
77. Mr Carpenter argued for a high threshold before risk of harm could be found. He suggested that risk of harm is demonstrated where there has been a lucky escape from harm, for example, where drugs have been wrongly administered or hygiene procedures inadequately followed but fortunately no harm has in fact resulted. On that basis, he said that the possible risk from inadequate opportunity for a potential employer to assess a prospective employee was too tenuously connected to its cause. Mr Carpenter also referred to the Department of Health guidance and to the Care Standards Tribunal decision in McNish's appeal, and in KM v. Secretaries of State for Education and Health [2006] 675PVA and on appeal [2008] EWHC 1288 (Admin). Again, the Tribunal found KM's case to be of limited assistance as the concealed offences were, as in McNish's case, both more serious in themselves and in the risk to vulnerable adults.
78. The Tribunal declined to attempt any gloss on the words of the regulation, which refers to ' misconduct which harmed or placed at risk of harm ' a vulnerable adult. It was inclined to regard Mr Carpenter's ' lucky escape ' test as suggesting too high a threshold. To give the regulation practical effect the risk of harm must clearly be real and significant, rather than fanciful or insignificant.
79. In the Tribunal's view, the risk from the appellant's failure to disclose was minimal. Benefit fraud is a serious offence, but, that said, the Magistrates appeared to regard the appellant's offences as at the lower end of the scale, for they imposed a conditional discharge. It is unlikely that Mr and Mrs Brooks would have rejected the appellant's application for employment because of those convictions, had she disclosed them. None of the other allegations against the appellant, except perhaps pretending not to have spilt Miss E's drink, is related to dishonesty. The Tribunal is unable to find that any significant risk to vulnerable adults arose from their being in the nocturnal care of a nurse convicted of benefit fraud and conditionally discharged or otherwise from the appellant's failure to disclose her convictions.

Unsuitability

80. The respondent is not confined to his allegations of misconduct to support the suggestion of unsuitability. Miss Leventhal naturally relied on the failure to disclose convictions which the Tribunal finds to be misconduct. The evidence also comprised other incidents, one in particular in which Mrs Wright was seen leaving Brooklands with a bath towel in a bag and consequently accused of theft. The police were called, but took no action. Mrs Wright's explanation was that she had used the towel to dry her feet and, Brooklands laundry having been dispatched or at least packed, was taking it home to wash as a matter of convenience. This appeared to the Tribunal to be rather like Sister Websdale's wiggly line, something of a storm in a teacup. It probably arose from the background of the various enquiries, which was in effect a gathering of complaints about the appellant. Much of what was thus gathered was, in the Tribunal's view, of poor quality.
81. At a relatively late stage in the proceedings, the appellant produced some health records. They reveal something of a history of depressive illness. Dothiepin was prescribed in 2001, Fluoxetine in 2002 and 2003 and there is reference to stress associated with problems at Brooklands. Sertraline was prescribed in 2006. Such an illness could undoubtedly justify a finding of unsuitability. However nothing of the sort was suspected at the time and any such suspicions were very likely to have been called forth in the atmosphere of collecting complaints about Mrs Wright. There is no connection even suggested between depressive illness and the allegations of misconduct which, in any event, save for the non-disclosure, the Tribunal finds not proved.
82. It is therefore the failure to disclose convictions which is the principal basis for a finding of unsuitability. Such dishonesty in seeking and obtaining a position of responsibility for the vulnerable is not to be lightly discounted. Miss Leventhal, submitted that length of time as a nurse could not be weighed against the dishonesty. While the Tribunal was prepared to accept that submission, it did not apply to the quality of the appellant's nursing.
83. There were testimonials from Ms. Cynthia Ntabeni, Mrs. Edna Sparkes, Mrs. Pauline Holton, Ms. Jenny Gregory and Mrs Jean Clowry attesting to the appellant's qualities of reliability, her dedication and respect both for colleagues and patients. There was also a letter from a Ms Irene Wyngaardt but she had worked only two shifts with the appellant. She remembered nothing untoward.
84. The Tribunal's impression of the appellant, for what it is worth based on only a few hours acquaintance in a somewhat artificial setting, is that she is conscientious and sympathetic. Generally careful and disciplined, she is capable of a slightly hot-headed response as when she obtained a prescription for a resident (p.966) direct from the GP's surgery rather than through Matron (Mrs Brooks), with whom she did not always see eye to eye.
85. Weighing carefully all the evidence and circumstances, the Tribunal does not find that Mrs Wright is unsuitable to work with vulnerable adults.

Decision

86. The Tribunal, unanimously, therefore finds one allegation only of misconduct proved, that no risk to vulnerable adults arose from that misconduct and that the appellant is not unsuitable to work with vulnerable adults or with children.
87. It follows that Mrs Wright's appeal must be allowed. The Secretary of State is accordingly directed to remove the appellant's name from the list kept under section 81 of the Care Standards Act 2000. It follows, in the circumstances, that her name must also be removed from the list kept under section 1 of the Protection of Children Act 1999 and from ' List 99'; the direction of the Secretary of State under section 142 of the Education Act 2002 is accordingly revoked.
88.   The Tribunal ordered that the restricted reporting order prohibiting the identification of any vulnerable adult continue in force indefinitely.

Andrew Lindqvist

Peter Sarll

Caroline Joffe