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Cite as: [2006] EWCST 852(PVA)

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Close v The Secretary of State for Health [2006] EWCST 852(PVA) (10 March 2008)

Rachel Close

-v-

The Secretary of State for Health

Application No. [2006] 852.PVA

Rachel Close

-v-

The Secretary of State for Children Schools and Families

Application No. [2006] 853.PC

Before:

Mr John Reddish (Chairman)

Ms Bridget Graham

Ms Helen Hyland

Hearing dates: 27, 28 and 29 February 2008

Application

On 8 December 2006 the applicant appealed under section 86(1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include her in the list kept under section 81 of the 2000 Act (the "POVA" list) and also appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children Schools and Families to include her in the list kept under section 1 of the Protection of Children Act 1999 (the "POCA" list).

Representation

At the hearing Miss Maya Lester of Counsel, instructed by Miss Geraldine Haack of the Treasury Solicitors, represented the Secretaries of State. The applicant represented herself.

The evidence

The Tribunal heard oral evidence on behalf of the Secretaries of State from:

Mrs Lynne Gough, a company director who was employed as a social care worker by Rhondda Cynon Taff County Borough Council at Clwyd Wen Respite Care Home for Adults with Learning Disabilities between 1996 and 2006; Mr Stephen Gullidge, a Care Home manager who was employed as a social care worker at Clwyd Wen from July 1996 until January 1997 and from May 2000 until May 2004; Miss Louise Thomas, a child care worker who was employed as a social care worker at Clwyd Wen from 24 February 2003 until June 2003; Mr Glynn Llewellyn, a community care worker who was employed as a social care worker at Clwyd Wen from January 2002 until May 2003 and Ms Zowie Crandon, a phlebotomist and support worker who was employed as a social care worker at Clwyd Wen from January 2001 until May 2003.

The Tribunal also received written evidence on behalf of the Secretaries of State from:

Mr Robert Gatis, the Director of Community Care for Rhondda Cynon Taff County Borough Council; Ms Sian Gurner; Ms Carol Gould; Ms Rachel Trehane Howells; Ms Caroline Lidster; Ms Helen Jones and Ms Arlene Price, all of whom were social care workers at Clwyd Wen in April 2003; Ms Elizabeth Carpenter, who was a social care worker at Clwyd Wen until February 2003; Mrs Meryl Morris and Mr Paul Morris, the parents of Mr Adam Morris; Mr John Cousins, a Paramedic with the Welsh Ambulance Service and Dr Rupert Evans, a Consultant Physician at the University Hospital of Wales.

The Tribunal heard oral evidence from the applicant herself.

The Tribunal also received written evidence on behalf of the applicant from:

Mrs A, the mother of a former service user at Clwyd Wen; Mrs Josephine O'Grady, a former social care worker at Clwyd Wen; Mrs G, the mother of another former service user at Clwyd Wen and Ms Karen Claridge, a social care worker who worked with the applicant in Pontypridd during 1993-4.

The Tribunal also read the documents submitted by the parties comprised in two binders, sub-divided into 39 sections and including time sheets, care plans, records of disciplinary hearings, correspondence with the applicant, guides for service users and staff and other miscellaneous documents disclosed by Rhondda Cynon Taff County Borough Council; the analyses of staff rotas prepared by or on behalf of the applicant; the written decision of the Employment Tribunal dated 23 August 2007; the formal record of HM Coroner's Inquisition into the death of Mr Adam Morris dated 16 October 2006; counsel's note of the outcome of that Inquisition dated 17 October 2006; a summary of all of the evidence obtained by the police during their investigation of the circumstances surrounding the death of Mr Adam Morris and the transcripts of the interviews of the applicant conducted by police officers on 18 September 2003.

Preliminary matters

On 27 April 2007 the President made an order, pursuant to regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to the identify any service user. That order applied until the conclusion of the hearing. The Tribunal decided to extend the order indefinitely in respect of all service users at Clwyd Wen save for Mr Adam Morris. The Tribunal was satisfied that such an order would be appropriate to safeguard the welfare of the vulnerable adults concerned and to protect their private lives. The Tribunal received representations to the effect that the restricted reporting order need not be extended to cover the identity of Mr Morris because, following his death on 2 May 2003, his name appeared in many reports of proceedings in the criminal courts and HM Coroner's Court and became widely known. The Tribunal invited Miss Lester and Miss Haack to obtain the views of Mr and Mrs Morris as to whether they had any objections to their deceased son being identified in reports of the proceedings in this case. Miss Lester informed the Tribunal that they had no objections.

Facts

The material facts found by the Tribunal were as follows:

The applicant was born on 26 February 1968 and is now 40 years old. She is married and has four children. She was employed as a social care worker by Rhondda Cynon Taff County Borough Council from 1987. In 1993 she became a retained fire fighter for South Wales Fire Brigade and then worked, pursuant to a part-time contract with Rhondda Cynon Taff County Borough Council, at Clwyd Wen Respite Care Home for Adults with Learning Disabilities in Miskin.

Clwyd Wen accommodated service users with a variety of physical and mental disabilities, most of whom required extensive personal assistance. The home was principally used to provide respite care for vulnerable adults, who normally lived with their families, at weekends and during holidays but some service users remained living in the home for extended periods.

On 10 May 1998 the applicant's elder sister, Mrs Deborah Waters became the manager of Clwyd Wen.

For many years, Clwyd Wen provided respite care for Mr Adam Morris. He was a young man (born in October 1979) who had cerebral palsy and a severe learning difficulty. He had multiple disabilities and was wholly reliant on others. When uncomfortable or unhappy he would thrash his limbs and become extremely vocal. During the night he often experienced muscle spasms and would use his considerable physical strength to push himself towards the head of his bed. When this happened, his carers would have to pull him back down his bed and move him into a comfortable position to enable him to sleep.

On an occasion in 1999, when Mrs Gough was the "night sleeping" carer at Clwyd Wen and the applicant was the "night awake" carer, Mrs Gough awoke at about 6.30 a.m. She was concerned to note that there was no noise emanating from the residents or staff downstairs. Mrs Gough went down to the lounge and discovered the applicant asleep on the sofa, covered by a duvet and with her head on a pillow. Mrs Gough woke the applicant and said: "Oh, for God's sake, Rachel" or words to a like effect, implying that, as both of them were well aware, the applicant should not have been asleep and that the applicant's conduct was dangerous and foolish. Mrs Gough was deeply unimpressed by the applicant's behaviour and relations between them were never good thereafter but Mrs Gough did not, at that time, report the applicant's misconduct to Mrs Waters. She did, however, contribute to the common knowledge of the staff at Clwyd Wen that the applicant was liable to sleep whilst on "night awake" duty, by recounting her experience to some of them.

On many occasions between 2000 and April 2003 Mr Gullidge saw the applicant asleep when on "night awake" duty at Clwyd Wen. Mr Gullidge was able to observe this because, when he was on the premises as the "night sleeping" carer, the applicant lay on the settee in the lounge, covered herself with a quilt and went to sleep before he did.

The applicant frequently referred to the service users at Clwyd Wen as "the wonks". She was often resistant to suggestions that service users might be given extra help. Her stock answer, given when she was disinclined to exert herself or was indicating to others that they should not take further trouble to assist service users, was: "Fuck 'em".

From October 2001 until April 2003, T, a vulnerable adult who had a tendency to self harm when upset, was permanently resident in Clwyd Wen. On several occasions in 2001-2 Mrs Gough saw and heard the applicant swearing at T and taunting her by mimicking her self-harming actions. Mrs Gough and others remonstrated with the applicant about this but preferred to give additional attention to T, to compensate for the ill-treatment she was receiving from the applicant, rather than to report the applicant to higher authority.

On 15 February 2002 Mr Stephen Webb, a Senior Community Occupational Therapist, attended Clwyd Wen and undertook modifications of the bed which was used by Mr Morris when he stayed there. Mr Webb secured the bed rails to the bed frame by using plastic cable ties to prevent Mr Morris moving the rails and creating a gap.

On 31 May 2002 Mr Webb looked again at the bed he had previously modified for Mr Morris because it had been reported to him that Mr Morris had injured his arm on one of the expansion joints of the bed rail. Mr Webb placed foam around the horizontal bars of the rails to prevent this from happening again. During this visit, Mr Gullidge pointed out to Mr Webb that Mr Morris might still be able to become trapped between the headboard and the bed rails. The plastic castors that were attached to the corner frame of the bed to prevent damage to walls when the bed was being moved prevented the bed rails being secured in a more favourable position adjacent to the headboard. Mr Webb removed the castors and positioned the bed rails so that their top ends were slightly beyond the edges of the headboard.

On an occasion in the summer of 2002 Mr Llewellyn saw the applicant sleeping on the settee in the lounge at Clwyd Wen when she was on "night awake" duty. The applicant did not stir when Mr Llewellyn walked past her during the night to use the bathroom facilities on the ground floor.

On another occasion in 2002, the date of which Mr Llewellyn was unable to specify more precisely, he saw the applicant flicking water at R, a service user who had Down's Syndrome and who particularly disliked having water on her body. Mr Llewellyn formed the view that the applicant had done this deliberately to provoke R into reacting adversely. Mr Llewellyn says that he reported this incident to Mrs Waters in the course of a supervision session conducted by her but there is no evidence to corroborate that assertion. Mrs Gough also saw the applicant flick water into R's face on a different occasion, apparently in an attempt to make her kick out and scream.

On another occasion in about 2002, the date of which Mr Gullidge was unable to specify more precisely, the applicant intentionally "wound up" E, a service user whom she knew to have a propensity to become extremely distressed at the prospect of having her clothing laundered. At a time when E was already distressed and threatening to harm herself and others, the applicant shouted at her: "I am going to wash your clothes".

On an unspecified date in December 2002 when Ms Crandon was the "night sleeping" carer and the applicant was the "night awake" carer at Clwyd Wen, Ms Crandon saw the applicant fall asleep on the settee in the lounge at about 11.45 p.m. Ms Crandon slept in the same room, preferring to make her bed there rather than to use the bed in the office on the upper floor. During the night Ms Crandon woke up in response to a noise. She saw that the applicant had not stirred and was still asleep. Later during the same night Ms Crandon was awakened by the shouts of D, a service user who often shouted, sometimes when she was about to have an epileptic fit. Ms Crandon got up to check upon D while the applicant remained asleep. This was not the first occasion upon which Ms Crandon had seen the applicant asleep during "night awake" duties. On two or three previous occasions she had awakened in the lounge and turned off the television while the applicant had slept undisturbed.

On 27 March 2003 Miss Thomas was the "night sleeping" carer and the applicant was the "night awake" carer at Clwyd Wen. Miss Thomas slept on the settee in the lounge. The applicant slept on another settee in the same room. They both went to sleep at about 1 a.m. on 28 March 2003. Miss Thomas, who was relatively new to Clwyd Wen, assumed that this was standard practice and neither reported nor commented upon it.

In early April 2003 Ms Crandon resolved to report what she perceived to be the unsatisfactory features of work at Clwyd Wen to senior officers of the Council. Her particular concerns were the preferential treatment given to the applicant by Mrs Waters and the breaches of the rules that the applicant was "getting away with". Mr Gullidge encouraged Ms Crandon to make her complaint but others (Ms Jones and Ms Lidster) persuaded her not to do so on the basis that, if she did complain, Mrs Waters would "make her life hell".

Mr Adam Morris arrived at Clwyd Wen on 25 April 2003 for a weekend stay. The bed which had been modified for him by Mr Webb was not available because the room in which it was situated was being used by D. Moving beds from one room to another would have involved dismantling them and this could not be undertaken at short notice. Accordingly, Mr Morris had to use a bed which had not been specifically modified for his use.

The staff on duty on the evening of 25 April 2003 were Ms Gould, Ms Gurner and Mr Gullidge. Mrs Waters was also there. She had asked the applicant to come in early to cover for Mr Gullidge, who had been asked to help out at another respite home for some of the shift. The applicant arrived for work at about 7.20 p.m. At that time Mrs Waters was applying foam padding to the guard rails on the bed to be used by Mr Morris. The applicant suggested that these measures were not satisfactory and that Mr Morris' stay should have been cancelled. Ms Gurner recalled that the applicant said to Mrs Waters: "I don't know why you are bothering: send the fucker home".

After Mr Morris was put to bed on 25 April 2003 Ms Gould checked on him and found that he had got his head "wedged down the side of the bed". When Mr Gullidge returned to Clwyd Wen later that evening to fulfil his duty as "night sleeping" carer, he also checked Mr Morris several times. Mr Gullidge found that Mr Morris had trapped his head under the guard rails of his bed. He moved Mr Morris and used folded pillows to fill the gap between the guard rails and the headboard of the bed. During the evening Mr Morris shouted out several times and, on one occasion, the applicant told Mr Gullidge to "leave the fucker".

Ms Gould remained at Clwyd Wen at the end of her shift on 25 April 2003 and stayed the night there because the applicant had asked her to come in early on the following morning to cover for her, so that she could to go home and enable her husband to go to work. Ms Gould settled for the night on the bed settee in the lounge at about midnight. Mr Gullidge had already gone to sleep in the bed provided for the "night sleeping" carer in the upstairs room. Before he did so he overheard the applicant speaking harshly to Mr Morris, using words such as: "be quiet, I've had enough now". Mr Gullidge had also written on the daily recording sheet, as a report for the applicant: "when we checked Adam at approx. 10.30 he had wedged his head between bars and headboard: managed to fill the gap with pillows".

On several occasions during the night of 25/26 April 2003 the applicant responded to Mr Morris' shouts and was annoyed that she had had to do so.

At about 5.15 a.m. on 26 April 2003 the applicant woke Ms Gould; told her that she was leaving to go home and that she had just checked on Mr Morris. The applicant left Clwyd Wen shortly after 5.15 a.m. At about 5.30 a.m. Ms Gould went into Mr Morris' room and found that his pyjamas had been pulled down to around his ankles and his incontinence pad was soaking wet. Ms Gould saw that there was a dry pad on the chair next to Mr Morris' bed. She deduced that the applicant had gone into Mr Morris' room with the intention of changing him but had decided to leave him as she wanted to get home. Ms Gould then attended to Mr Morris herself.

On the morning of 26 April 2003 Mr Gullidge examined the daily recording sheet for Mr Morris and saw that the applicant had not made any entry in relation to the events of the previous night. The applicant later inserted the words: "although he still managed to find a gap. Adam up all night: has not slept". She probably did so after she returned to duty at about 10.45 p.m. on 26 April and before she left Clwyd Wen on the morning of 27 April 2003.

At about 9.30 p.m. on 26 April 2003 Mr Llewellyn and Ms Treharne Howells, assisted by Ms Thomas, put Mr Morris to bed at Clwyd Wen. During the next hour Mr Llewellyn checked Mr Morris on three or four occasions and found that he had been thrashing and pushing himself up the bed so that his head was in danger of becoming trapped between the headboard and the guard rails. Miss Thomas noted that Mr Morris was "really hot and sweating".

At about 10.45 p.m. on 26 April 2003 the applicant arrived at Clwyd Wen to undertake the "night awake" shift. Mr Llewellyn reported to the applicant that Mr Morris had "got his head stuck" and that she should watch him carefully throughout the night. The applicant responded to Mr Llewellyn using words variously reported as: "Tell me about it. If I have a night like I had last night, he'll be in the fucking garage" and "If he starts tonight, I'll put him in his chair and put him in the fucking garage".

Before he left Clwyd Wen, Mr Llewellyn wrote on the daily recording sheet that he had "put another pillow down the side hoping this would help but Adam needs to be watched during the night as he has tried twice more to put his head down in the last hour". Mr Llewellyn left Clwyd Wen at about 11 p.m. and went home. Miss Thomas had completed her shift at 10.30 p.m. but remained at Clwyd Wen because she was to be the "night sleeping" carer for that night.

Shortly after midnight on 27 April 2003, when Miss Thomas and the applicant were sitting in the lounge at Clwyd Wen, Miss Thomas heard a noise from one of the bedrooms and got up from her seat. The applicant tried to dissuade her from taking any further action saying: "Fuck 'em: you are not even on duty". Miss Thomas went to investigate the noise and found that L was trying to get out of bed. The applicant then came to assist Miss Thomas and together they settled L.

Miss Thomas and the applicant stayed awake until about 3.15 a.m. on 27 April 2003. They sat in the lounge. The applicant asked Miss Thomas if she could leave early that morning because her husband had to go to work and there was no one to look after the children. Miss Thomas did not object to this. On several occasions the applicant left the lounge. Miss Thomas presumed that she had gone to check Mr Morris.

At about 3.15 a.m. on 27 April 2003 Miss Thomas fell asleep in the lounge. The lights in the room were off and the applicant was lying on the settee covered by a quilt and with her head on a pillow. The applicant had set an alarm clock, which was commonly used to warn staff that the time had come for medication to be administered to one or other of the service users in residence.

At about 6.50 a.m. on 27 April 2003 the applicant woke Miss Thomas and told her that she was leaving. Miss Thomas got up. The applicant went to her car, which was parked outside the home but did not then leave the premises. She returned and told Miss Thomas that she had changed her mind and would not leave her on her own at the home.

The applicant checked Mr Morris at some time between 7 a.m. and 7.40 a.m. and saw that he appeared to be sleeping. At about 7.40 a.m. Ms Gurner arrived for duty. The applicant told her and Miss Thomas that she had checked Mr Morris and that they should let him sleep because he had had a restless night. At some time before she left Clwyd Wen, the applicant wrote: "had a good night turned 6 times" on the recording sheet for Mr Morris.

The applicant left Clwyd Wen in her car at 7.56 a.m. Shortly thereafter Mr Llewellyn arrived. He indicated to Ms Gurner and Miss Thomas his intention to wake Mr Morris and to give him a drink but they told him that the applicant had told them that Mr Morris should be left to sleep.

Mr Llewellyn then attended to the needs of the two service users, D and M, who were awake and out of bed while Ms Gurner and Miss Thomas assisted the other resident, L, to get up. No one heard any noise from Mr Morris' room. At about 8.40 a.m. Ms Crandon arrived early for her shift. She was due to start work at 9 a.m.

At about 8.45 a.m. on 27 April 2003 Mr Llewellyn went into Mr Morris' room and found him with his head wedged under a pillow in the gap between the headboard of his bed and the guard rails. He was not breathing, had no pulse and was cyanosed around the lips. Mr Llewellyn called for assistance and began trying to resuscitate Mr Morris. With assistance from Ms Gurner, he moved Mr Morris on to the floor of his bedroom and continued mouth to mouth resuscitation.

At 8.48 a.m. Ms Gurner dialled 999 and handed the portable telephone handset to Ms Crandon. Ms Crandon asked for the ambulance service. While an ambulance was en route to Clwyd Wen, Ms Crandon stayed on the telephone; gave directions and received instructions as to how Mr Morris might be resuscitated. She saw that Mr Llewellyn was already following those instructions. At 8.52 a.m. Mr Cousins, a Paramedic and his colleague Mr Niblett, an Emergency Medical Technician, arrived at Clwyd Wen in an ambulance. They found that Mr Morris was not breathing and had no pulse but that he was not generally cyanosed and was still warm. They fitted an oxygen mask; administered adrenaline and atropine and used a defibrillator. After several minutes they managed to restart Mr Morris' heart and then evacuated him by ambulance to the Royal Glamorgan Hospital in Llantrisant.

At 9.18 a.m. on 27 April Mr Morris was received into the Resuscitation Room at the Royal Glamorgan Hospital. He was not breathing independently but he had a pulse. His body temperature was cold (34.7 degrees Centigrade). His condition was very poor and the prognosis was not good. His blood pressure was low. The grossly abnormal results of the blood gas tests administered by the Senior House Officer, Dr Davies indicated that Mr Morris had been unable to maintain normal breathing for some time. Dr Ching, a Specialist Registrar in Respiratory and General Medicine, saw that Mr Morris' skin was mottled, indicating that he had been without a pulse for some time. Dr Ching also noted that his corneas were dry, indicating that Mr Morris had not been blinking for some unspecified time. Dr Ching diagnosed asphyxiation and also noted that Mr Morris had suffered brain damage due to lack of oxygen. She examined Mr Morris for any signs of an assault and found none. Thereafter, Mr Morris was transferred to the hospital's Intensive Care Unit.

After Mr Morris' removal the members of staff who had not been present, including the applicant, Mr Gullidge and Ms Treharne Howells, were notified by telephone as to what had happened.

During the morning of 27 April 2003 the applicant telephoned Clwyd Wen. Her call was answered by Ms Crandon. The applicant asked to speak to Miss Thomas. Ms Crandon handed the receiver to Miss Thomas. Miss Thomas had a short conversation with the applicant during which the applicant asked her to "put a 1 in front of the 6" in her report on the recording sheet relating to Mr Morris so that it would read: "had a good night turned 16 times". Miss Thomas declined to do this and, as soon as she had terminated the telephone call, remarked to Ms Crandon that she "could not believe it", but the applicant had just asked her to change the night report.

During the morning of 27 April 2003 the applicant telephoned Ms Lidster at home several times. The applicant said," I'm in for it I am". When Ms Lidster asked her why, the applicant told her that Mr Paul Morris had seen that the baby alarms he had provided for use at Clwyd Wen during his son's stay had not been plugged in. The applicant explained that she had not used the alarms because she could hear Mr Adam Morris without them. The applicant also told Ms Lidster that she had written on Mr Morris' night report that she had turned him 6 times. She laughingly said that she could have put a 1 in front of the 6 and that she had asked Ms Thomas to do this for her.

On the afternoon of 27 April 2003 Mr Gullidge went to Clwyd Wen. He examined the daily recording sheet in respect of Mr Morris dated 25 April 2003 and saw the words that the applicant had added, after his own report, in the section which she had earlier left blank.

On 2 May 2003 Mr Morris was pronounced dead by doctors in the Royal Glamorgan Hospital. He never regained consciousness after his admission on 27 April 2003.

On 6 May 2003 Dr Steven Leadbeatter, a Home Office Pathologist, conducted a post mortem examination of Mr Morris at the University Hospital of Wales. His findings were consistent with a period of cardiac arrest. He was unable to give an opinion as to the cause of this cardiac arrest other than to comment that deaths in sufferers from cerebral palsy have been attributed to positional or postural asphyxia.

On 8 May 2003 Mrs Gough reported to Ms Chris Webb, the Head Of Learning and Disability Services of Rhondda Cynon Taff County Borough Council, "matters which were not really connected to Adam's death". She said that morale had been very low at Clwyd Wen; that "the manager and sister thing" did not work; that Mrs Waters had made life difficult for Ms Jones and Ms Crandon; that Ms Carpenter had left because of Mrs Waters' behaviour and that the applicant habitually slept on "night awake" duty.

On 8 May 2003 Rhondda Cynon Taff County Borough Council convened a Protection Of Vulnerable Adults strategy meeting following the death of Mr Morris. It was noted during the meeting that Mr Gullidge, Mr Llewellyn and Mrs Gough "had reported that they were concerned that Rachel Close sleeps during her waking night shift and leaves early" and that these members of staff "would be prepared to speak out regarding this".

As a result of all of the matters reported to the meeting on 8 May 2003, Mr Gatis decided to suspend the applicant from her duties as a social care worker and, on 9 May 2003, Ms Tracy Harris, the Council's Human Resources Manager, informed the applicant of that decision.

On 18 September 2003 the applicant was interviewed at length by Detective Constables Miller and Hallett at Merthyr Police Station. The applicant explained that she had been "in and out" of Mr Morris' room for "most of the night" of 25/26 April 2003 and had left between 6.45 a.m. and 7 a.m. because Ms Gould had agreed to cover for her. She also said that she had been told on that Friday night that Mr Morris had trapped his head and had "pushed himself up into the corner" and that she should "keep an eye on him". The applicant could not remember whether she had written a report for Mr Morris on the Friday night or Saturday morning but if she had "forgotten to do it" she would have written it up on the following day. She conceded that this might have caused a problem for the following shift but said that she would have reported verbally. When asked about the following night (26/27 April 2003) the applicant said that she had not checked Mr Morris as many times as she had on the previous night but had probably done so six times. She had checked him "at about quarter past seven" and seen him sleeping before going into the kitchen to clear up. She then told Ms Gurner (who had come in early) and Ms Thomas that Mr Morris had had a good night and she had left "at about 7.55 a.m., when Sian arrived". The applicant recalled that she had told Ms Gurner that Mr Morris was "probably tired because he'd had a terrible night the night before".

During her interview the applicant denied that she had slept on either the Friday or Saturday night. She admitted that she might have had her legs up on the settee and might have a quilt or blanket over her. She said that she could not remember asking Miss Thomas to "put a one in front of the six" in her night report. During the latter part of her interview the applicant declined, on legal advice, to answer any more of the questions put to her.

On 27 May 2004 the applicant was arrested at Merthyr Police Station and charged with the unlawful killing of Adam Morris. On the same date, Mrs Waters was reported for an offence of neglect under section 127 of the Mental Health Act 1983. She was subsequently acquitted of that charge.

On 4 October 2004 Rhondda Cynon Taff County Borough Council referred the applicant to the Secretary of State for Health under section 82 of the 2000 Act.

On 6 December 2004 the Respondents decided provisionally to list the applicant on the POVA and POCA lists and invited the applicant to make written observations. The applicant made no observations.

In April 2005 the manslaughter charge against the applicant was withdrawn.

In July 2005 Rhondda Cynon Taff County Borough Council commenced an internal investigation.

On 13 July 2005 the applicant made a statement by way of answers to written questions put to her by Ms Alison Cade (the Rhondda Cynon Taff County Borough Council Human Resources Manager). The applicant said, amongst other things, that all of the other staff had "got together and changed their statements"; that she had heard Mr Morris shout at about 7 a.m. on 27 April 2003 and had seen to him then; that she had always completed service user recording sheets at the end of every shift; that she had never slept on a waking night shift but that, in common with others, she had covered herself with a sheet or quilt whilst sitting on the settee during night shifts.

On 21 October 2005 the Council held a disciplinary hearing to address the allegations of misconduct by the applicant. On the same date, the Council dismissed the applicant for gross misconduct.

The applicant appealed the decision to dismiss her to the Council's Appeals Committee. The Committee heard the case on 8 December 2005 and confirmed the decision to dismiss the applicant for gross misconduct.

On 20 February 2006 Rhondda Cynon Taff County Borough Council informed the Respondents that their internal investigations had been completed.

On 27 February 2006 the Respondents wrote the applicant inviting her to make representations as to her listing. The applicant again made no representations.

On 12 September 2006 the Respondents confirmed the applicant's listing on the POVA and POCA lists. They said that they had concluded that the Council reasonably considered that the applicant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by neglecting a vulnerable adult and not providing the care specified in his care plan, and that she was unsuitable to work with vulnerable adults because of the number of incidents of neglect and inappropriate language and behaviour.

On 16 October 2006 HM Coroner reported that Mr Morris had died of "acute hypoxic/ischaemic encephalopathy as a consequence of cardiac arrest which occurred as a consequence of asphyxia". His conclusion was that Mr Morris had suffered "accidental death contributed to by neglect"

On 17 October 2006 Ms Caroline Rees, counsel who represented the applicant at the inquest into the death of Mr Morris, presented a note of what had happened. She said that the jury had been given the option of returning a narrative verdict but had chosen not to do so and had returned a short form of verdict. The applicant should, she said, be clear that the verdict was not necessarily based only upon her conduct and that of her sister, Mrs Waters but also encompassed the actions of others such as Ms Gould, Mr Gullidge, Ms Gurner and, in particular, Mr Llewellyn. The Coroner had directed the jury that they could only return a verdict of accidental death contributed to by neglect if they were satisfied on the balance of probabilities that there had been a gross failure to provide Mr Morris with adequate supervision. The jury had to ask themselves if there had been a lost opportunity to intervene so as to prevent Mr Morris' cardiac arrest. On the evidence called at the inquest it could not be shown that Mr Morris became fatally entrapped on the applicant's shift. The expert medical evidence pointed to the fact that Mr Morris did not sustain his cardiac arrest more than 12 minutes before his heart was restarted. This time period was within Mr Llewellyn's shift. The person who could be shown to have missed an opportunity to release Mr Morris was Mr Llewellyn, not the applicant. Counsel concluded that the verdict was safe and fair and did not necessarily reflect badly upon either the applicant or Mrs Waters.

On 23 August 2007 the Employment Tribunal found that the applicant was dismissed for a potentially fair reason (misconduct) but that the Council had not acted reasonably in relying on police reports rather than conducting their own investigation. There is currently an appeal pending on this point to the Employment Appeal Tribunal.

The law

Under section 86(3) of the 2000 Act, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of his or her duties) which harmed a vulnerable adult or placed a vulnerable adult at risk of harm and (b) is unsuitable to work with vulnerable adults, it must allow the appeal. If the Tribunal is so satisfied, it must dismiss the appeal.

The decision to place the applicant on the POCA list was as a result of her inclusion on the POVA list. Section 92(4) of the 2000 Act provides that proof of misconduct relating to a vulnerable adult satisfies the requirement of misconduct relating to a child for the purposes of the POCA list. However, the issue of unsuitability to work with children falls to be considered separately.

Burden of proof

Section 86 of the 2000 Act and section 4 of the 1999 Act place the burden of proof on the Secretaries of State.

Standard of proof

The standard of proof required, in order to be satisfied as to the matters set out in section 86(3) of the 2000 Act, is that described in the decision of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80. In that case, Lord Nicholls of Birkenhead said:

"[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation."

Misconduct

Miss Lester submitted that the Tribunal should be guided in this area by the observations made by the Tribunal in the case of Mairs v Secretary of State [2004] 269.PC. The Tribunal accepted that submission.

Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross".

In most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.

Inclusion in the list kept under section 81 of the 2000 Act is not intended to stigmatise, discipline or punish. The concern of the listing regime is to contain the risk of harm to vulnerable adults. The regime identifies an unacceptable risk of harm by reference to some past misconduct plus a present unsuitability to work with vulnerable adults. It is neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of "misconduct". The misconduct triggers consideration of the second criterion for inclusion – unsuitability to work with vulnerable adults. Not all of those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or with children. A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct could be shown to be wholly unsuitable to work with vulnerable adults or with children.

For the purposes of the 2000 Act, there must be a direct causal connection between the misconduct admitted or proved and harm or potential harm to a vulnerable adult. In most cases the harm will have been directly inflicted, or the potential for harm will have been directly created, by the individual charged with the misconduct. However, this is not always so. There can be several links in the chain of causation between the misconduct and the harm or potential harm to a vulnerable adult but all of them must be intact before there can be a finding that an individual was "guilty of misconduct (whether or not in the course of his or her duties) which harmed or placed at risk of harm a vulnerable adult".

In deciding whether misconduct by omission has harmed a vulnerable adult or placed a vulnerable adult at risk of harm, consideration must be given to the responsibilities assumed by the person listed and whether, if those responsibilities had been properly discharged, there is a real and substantive likelihood that the harm that was occasioned to the vulnerable adult would have been prevented or materially lessened.

Harm

Section 121(1) of the 2000 Act provides that "harm", in relation to an adult who is mentally impaired, means ill-treatment or the impairment of health or development.

Unsuitability to work with vulnerable adults and children

Unsuitability must be judged by the Tribunal at the date of the hearing. 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 vulnerable adult or placed a vulnerable adult at risk of harm. The Tribunal may have regard to:

(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.

Issues

It was argued by Miss Lester on behalf of the Secretaries of State that:

(a) the applicant was clearly guilty of misconduct in that she repeatedly slept on duty when she should have been awake; she was disrespectful to and abusive of service users on several occasions; she failed to provide a service user with the constant attention and monitoring that she knew he needed; she failed to complete her night reports at the proper time and she attempted to falsify her night report on 27 April 2003;

(b) sleeping on "night awake" duty was the most serious misconduct in that it placed the vulnerable adults in her care at risk of very significant harm;

(c) the allegation of sleeping on duty was fully supported by the detailed and fully corroborated evidence of credible witnesses, many of whom had no "axe to grind";

(d) several of the witnesses could not be, as the applicant suggested, trying to deflect their own responsibility for the death of Mr Morris on to her, because they had no such responsibility;

(e) the applicant's own admission that she sometimes lay on the settee in the lounge in darkness or semi-darkness with a quilt over her and a pillow under her head was an admission of misconduct because the applicant knew or must have known that, in such circumstances, she was likely to fall asleep;

(f) the applicant's case amounted to a bare denial without any detail of the steps she took to remain awake and alert;

(g) the argument, advanced by the applicant, that the evidence of those who said that she had slept on duty should be rejected because they did not report the occurrences to the manager of the home at the time was unsound because the failures to report were entirely understandable when the manager was the applicant's elder sister and there was a history of victimisation or adverse treatment of staff who had complained or commented;

(h) the applicant herself accepted that if, which she denied, she had slept on duty, she would have placed vulnerable adults at risk of harm because service users at Clwyd Wen were variously liable to have epileptic fits, to wander from their rooms, to fall from their beds or to become trapped in or under the rails around their beds;

(i) the allegations of taunting, provoking and "winding up" service users were also supported by the detailed and fully corroborated evidence of credible witnesses;

(j) such conduct was obviously likely to harm these vulnerable adults either directly or indirectly;

(k) the applicant's case in relation to this allegation again amounted to a bare denial coupled with an unconvincing suggestion that the witnesses were fabricating evidence for reasons of their own;

(l) the irresistible inference to be drawn from the detailed evidence concerning the events of 26 to 27 April 2003 was that, between about 3.15 a.m. and about 6 a.m. on 27 April 2003, the applicant failed to provide Mr Morris with the constant attention and monitoring that she knew he needed;

(m) the issue was not the extent of the applicant's responsibility for the death of Mr Morris but whether she conducted herself improperly and thereby placed him at risk of harm;

(n) there was clear evidence that the applicant failed to fill in her night report before she left the home on the morning of 26 April 2003 and only completed it later;

(o) there was clear and fully corroborated evidence that on 27 April 2003 the applicant attempted to persuade Miss Thomas to alter the night report that she, the applicant, had previously written;

(p) the persistent and unrestrained use by the applicant of offensive and obscene language when referring to the vulnerable adults in her care, while not necessarily constituting misconduct which harmed or placed at risk of harm a vulnerable adult, was clear evidence of the applicant's unsuitability to work with vulnerable adults and children since it demonstrated a wholly uncaring attitude;

(q) the applicant's persistent, serious misconduct in relation to sleeping on "night awake" duty, failing to comply with the procedures in relation to written reports and mistreating service users should lead inevitably to the conclusion that she is unsuitable to work with vulnerable adults and children;

(r) the applicant's approach to the allegations made against her, her conviction that there had been an unjust apportionment of the blame for the death of Mr Morris and her determined insistence that there was a conspiracy against her, together demonstrated a lack of understanding which rendered her unsuitable to work with either vulnerable adults or children;

(s) the applicant's complete failure to accept any responsibility for her acts and omissions in the face of overwhelming evidence further indicated that she is unsuitable to work with either vulnerable adults or children; and

(t) the evidence of Mr Gullidge to the effect that he, as the manager of a care home, would not employ the applicant because she was unsuitable and dangerous was compelling evidence of unsuitability to work with both vulnerable adults and children.

It was argued by the applicant on her own behalf that:

(a) she has been victimised by incompetent managers, denied the right to dignity at work and treated unfairly and differently from others;

(b) she was not on duty at the time Mr Morris was found, did not sleep on duty, did not close the door of Mr Morris' room, did not ignore advice to check on Mr Morris and properly completed her night reports;

(c) no member of staff at Clwyd Wen ever reported her for sleeping on duty because she never did;

(d) the evidence against her should not be believed because Mr Llewellyn was himself guilty of misconduct and was attempting to shift responsibility for Mr Morris' death away from himself by lying about her conduct and persuading others to do the same;

(e) Miss Thomas was not telling the truth and had given inconsistent statements;

(f) the suggestion that she had left Clwyd Wen at 7 a.m. on 27 April 2003 but had then returned because she felt guilty about leaving Miss Thomas on her own was unsubstantiated, implausible and untrue;

(g) the suggestion that she had asked Miss Thomas to change her night report was a complete fabrication;

(h) Mr Llewellyn's theory as to how and when Mr Morris died was unsupportable, contradicted by expert evidence and wholly wrong;

(i) the allegations of abuse of service users were not reported at the time that they allegedly happened and were not discussed between members of the staff of the home because they did not happen;

(j) it is inconceivable that Mr Gullidge would not have reported incidents if they had happened because he had been in a management position and would have known how to do so;

(k) she did not receive favourable treatment from her sister in the allocation of shifts or otherwise;

(l) her sister did not protect her from criticism or complaints because there was nothing for the other members of staff to criticise or complain about;

(m) she did swear when on duty but no more or less than anyone else;

(n) other members of the staff of the home who failed to report misconduct should be held to account;

(o) Mr Llewellyn's alleged report to Mrs Waters during a supervision session would have been noted but no notes had ever been produced to confirm that this happened because it did not;

(p) Ms Alison Cade failed to conduct a proper investigation in a number of respects so that her dismissal and the appeal process which followed was flawed;

(q) she had an unblemished record of 18 years work in social care;

(r) she did not need to sleep on duty and her working on "night awake" shifts was not, as had been suggested, inconsistent with her obligations towards her young children; and

(s) her attitude did not, as was alleged, deteriorate over time and it was impossible to come to that conclusion without reference to precise dates of the alleged incidents.

Conclusions and reasons

Having carefully considered all of the evidence given and the arguments presented at the hearing and the witness statements and other papers submitted in advance, the Tribunal came to the following conclusions: