First-tier Tribunal (Health Education and Social Care Chamber)

Phan v Secretary of State for Health [2008] UKFTT 1 (HESC) (12 November 2008)

Lien Hong Phan

-and-

SECRETARY OF STATE FOR HEALTH

[2008] 1259.PVA

[2008] 1260.PC

Before:

Ms Maureen Roberts (Chairman)

Ms. Bez Chatfield

Mr. Jim Lim

The hearing took place at the Canterbury Combined Court Centre on 5th November 2008.

Representation

The Appellant, Ms Phan, appeared in person and gave evidence. The Respondent was represented by Mr. Auburn of counsel instructed by Ms McLeod of the Treasury Solicitor's Office.

Mr Paneandee the home proprietor and manager and Ms Geronimo a senior carer at the home gave evidence.

DECISION

1. This appeal was brought under s86(1) of the Care Standards Act 2000. The Appellant appealed against a decision by the Secretary of State to place her name on the Protection of Vulnerable Adults (PoVA) list, the Protection of Children Act (PoCA) list and the list kept under s142 of the Education Act 2002, also known as List 99.The letter notifying her of the decision was dated 18^th January 2008.
2. At a telephone directions hearing before Mr. Simon Oliver, Deputy President on 4^th August 2008, a Restricted Reporting Order under Regulation 18(1) was made together with a further Order under that Regulation excluding members of the press and public from the hearing.

The Law

3. Section 86(3) of the Care Standards Act states:

If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely -

(a) that the individual was guilty of misconduct (whether or not in course of his duties) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

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

Burden of proof

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

The background facts

6. Ms Phan, the Appellant, is of Vietnamese origin and came to the UK some time ago. She worked in a residential home for two years before she started at the Lyndhurst Rest Home in Whitstable in March 2005. Lyndhurst rest home is registered for and has 29 EMI residents. All the residents have some level of dementia or confusion. The Appellant was employed as a carer. She worked a mixture of day and night duties.
7. In early November 2006 Ms Geronimo complained to Mr Paneandee that the Appellant was sleeping when she was on night duty. Mr Paneandee told Ms Geronimo that she must wake her up and tell her that sleeping was not allowed on duty. Subsequently Ms Geronimo reported back to Mr Paneandee to say that when she had told the Appellant not to sleep on duty she had been ignored. Mr Paneandee said that he needed proof that the Appellant was sleeping while on duty.
8. On the 18^th November 2006 a member of staff reported that after the Appellant had had her break at 11-30pm she had pulled together two chairs and had gone to sleep. The member of staff had found her asleep at about 3-35 am. He took some photographs of her on his camera phone and said that she woke at around 4-30 am.
9. On the 20^th November 2006 Ms Geronimo was working with the Appellant and said that the Appellant had again pulled two chairs together and had slept from around 12-45 am to 4-45am. She had also taken photographs of her on her camera phone.
10. Mr Paneandee as the proprietor manger decided to visit the home on the night of the 22/23 November 2006 when the Appellant was working a night shift. He did not tell any member of staff about the proposed visit. He attended the home at 2-50 am. He let himself into the house and walked into the lounge. He found Ms Geronimo sitting reading a magazine and the Appellant asleep in two chairs pulled together. He spoke to her but she did not wake and he then shook her to wake her. He told her that he had to send her home because he had found her sleeping on duty. The Appellant did not want to do home and would not leave. The police were called and the Appellant went home with two police officers.
11. Mr Paneandee then conducted an investigation which involved a disciplinary hearing with the Appellant on 30^th November 2006. At that hearing the Appellant denied six times that she was sleeping and said that she was 'resting'. Mr Paneandee took statements from members of staff and held a reconvened hearing on the 8^th December which the Appellant did not attend. After this meeting Mr Paneandee wrote to the Appellant summarily dismissing her. He said 'Sleeping on duty is a fundamental breach of your contract of employment and we have independent witness statements and photographic evidence to show that this was the case. The statements also show lengthy periods of absence from your duties, not in keeping with any rest breaks'.
12. The Appellant then raised a grievance. She complained that photographs had been taken of her without her permission and that she was not informed about the photographs until the disciplinary hearing. She also said 'during my employment with you my colleagues who worked with me on the night shift had an arrangement that once all our duties had been completed we took turns of reading or sleeping, at no time were the residents not cared for; this arrangement was already in place when I started my employment with you.'
13. Mr Paneandee replied to this denying the truth of what the Appellant was alleging and upheld the dismissal. He then referred the Appellant to the Respondent who decided on the evidence to list the Appellant.
14. The Tribunal noted that the Appellant had approached Mr Paneandee on a number of occasions to question/change her hours and rates of pay. The Appellant referred to these issues a number of times. However they did not form part of the Respondent's case and while we noted the issues as background matters they did not have a bearing on our decision.

The evidence to the Tribunal

15. The Appellant now works in a hotel and we agreed that she could give her evidence first as she could only have the first day of the hearing off work. We note that English is not her first language and she was not always easy to follow; she spoke freely honestly and at some length. While she understood the issues and followed the oral evidence it was evident that she did not read English easily, if at all. We had the witness statements read in full at the hearing.
16. The burden of what she said is accurately reflected in the quotation from her letter of grievance set out above. In fairness to her she admitted that she was sleeping on duty and had made that admission in the Appeal form. However she said she cared about the clients and that no client had ever come to harm. She understood the 'law' that staff were not to sleep on duty but said that needed to sleep and that because she knew the clients so well there was no problem with the clients. She compared the situation in the home with that of a hospital. In a hospital there would be emergencies and a change of patients so in those circumstances it was right that night staff should not sleep on duty.
17. She said that she cared about the clients and worked hard. She only had little formal qualifications and had learnt on the job. She alleged that all the staff slept on night duty. She was asked about her preparation for night duty and said that she found it difficult to sleep in the day. She said she did not have earplugs or other aids to help her. She said that she was not coping with night duty and so she was resting during the night shift.
18. It emerged in her evidence that she had left her previous job because there had been a complaint about her sleeping on duty and a falling out with the manager in the home.
19. The Appellant was at pains to tell the hearing that she was not a bad person and that she felt she had given a lot to her job and worked long hours. While she had attended the induction training arranged by the employer and received the policy documents and contract it was not clear that she had read documents given to her and she said that she had put policy documents 'in the bin'.
20. Mr Paneandee is a nurse with a RMN qualification. He runs two homes. He described the Lyndhurst home as a converted building with 29 residents all with EMI status. He confirmed that it is a rule and requirement of the home that the two waking night staff remain awake while on duty and said that this is something he emphasized to staff.
21. He said that he had taken the Appellant on to give her a chance. She was a good practical worker and got on with her care tasks. She always worked with a more senior member of staff and was not expected to perform any administrative work such as record keeping or administration of medication.
22. He said that the Appellant was not a particularly popular member of staff; she 'thinks she knows it all'. He said that the Appellant seemed to think he had some sort of personal vendetta against her and that other staff had victimized her. He adamantly denied this. In fact he was generally satisfied with her work but he was concerned by her poor attitude when she was discovered sleeping by him and her refusal to admit she had been sleeping in the disciplinary hearing. He considered that falling asleep on duty was very serious and was compounded by the Appellant's refusal to accept responsibility and her apparent blaming of other staff.
23. Ms Geronimo confirmed her statement. She is employed as a senior carer and had worked in the care profession in the Philippines for some time. She has worked at the home since November 2005 and continues to be employed there. She was concerned when she found the Appellant sleeping and had spoken to Mr Paneandee about it. She confirmed that she had seen the Appellant asleep and had taken a photograph of her.
24. She said she liked the Appellant, that she was generally a good worker but that she was lazy sometimes and that it was unfair for her to sleep at night because it left all the work to one worker. She said that to her knowledge no other member of staff slept while they were on night duty

Findings

25. We find that the Appellant did sleep on duty. It was not the case that she occasionally had a short nap but she deliberately settled down to sleep for 3 or 4 hours. We accept that she had done this for some time.
26. Initially she denied that she had been sleeping and even when she admitted it she showed no insight or remorse for what she had done or the possible dangers of the situation. She knew the rule but had no insight or way of explaining why the measure was a requirement. We consider that she felt victimized, that others were jealous of her and that she was not paid enough. This was her understanding of her dismissal rather than the finding of gross misconduct because she had been found sleeping on duty.
27. We do not accept that other members of staff were sleeping on night duty. It was denied in statements and there was no evidence that they did so.
28. The client group of the home is a very vulnerable group. Not only are they elderly but they are all suffering to some extent from dementia. This means that they may wander or become confused or disorientated at night. They are a higher risk group than that of residential elderly clients.
29. We were helpfully referred to two previous 'sleeping on duty' cases, Jane Brown v Secretary of State [2005] 580 PVA and MM v Secretary of State[2007] 1149PC and conclude that the facts of this case most resemble that of MM (and SC) where the appeals were dismissed.

The Tribunal decision

As noted above there are three stages in coming to a decision.

30. Firstly, has the Appellant been guilty of misconduct? The Tribunal is satisfied, on balance, that in the circumstances of this case sleeping on duty amounts to misconduct.
31. Secondly, did that misconduct harm a vulnerable adult or place them at risk of harm? In her evidence the Appellant denied that anyone had been placed at risk of harm. The Tribunal does not agree. The service users in this case were elderly and vulnerable, dependent on carers doing what they were being paid to do. The Appellant knew 'the law' that she should not sleep but appeared to believe that it did not apply to her in this home. We consider that the residents were exposed to the risk of harm. The Tribunal is satisfied on this aspect of the statutory test.
32. Thirdly, is the Appellant unsuitable to work with vulnerable adults? We find that the Appellant displayed no insight or understanding as to the seriousness of what she had done. While as noted above she knew 'the rule' about not sleeping on duty she could not explain the rationale behind the rule and why it was necessary to have two waking staff on duty at night.
33. The burden of proof is on the Appellant to satisfy the Tribunal, on the balance of probabilities, that she is suitable to work with vulnerable adults. She has failed to discharge that burden. In the Tribunal's view for the above reasons she is also unsuitable to work with children.
34. We want to make it clear to the Appellant that she is not a 'bad person'. She did not intentionally seek to harm or abuse any client and we accept her evidence that she cared about them. We consider that her linguistic limitations have probably handicapped her in her job. It may be in the future that if she undertakes further education or training she could consider taking advice on the procedure for applications for removal from the list.
35. The Tribunal's decision is that the appeals should be dismissed.
36. This is a unanimous decision

Observations on the issue of equalities & other considerations

37. The Tribunal was immediately drawn to the fact that the Appellant was evidently handicapped by her significantly limited understanding of the wider issues surrounding the provision and structure of institutional arrangements in caring for vulnerable and dependent individuals.
38. The tribunal noted that despite the acceptable investment put in by the provider in induction training, supplemented by other critical specific training, the obvious linguistic limitations of the Appellant would seriously restrict her competencies, and confined her ability to a performance only around the very basics of physical/manual duties.
39. The Tribunal heard, by the Appellant's own admission of her limited educational achievements and therefore, her inability to regard, appreciate or relate the importance of formal qualifications per se, to her contracted duties in a caring environment and within a team work approach,
40. The Tribunal once again, is conscious that with the Appellant's handicap, that specific ethnic and cultural factors may work to exacerbate negatively the way she had performed her duties and eventually, her perception of her reality.
41. The Tribunal is therefore conscious of the over-riding need for providers to pay particular attention and rigour in terms of suitability in recruitment, to avoid setting up individuals for failure at worst or, compromising aspects of care at best.
42. The Tribunal would have been more satisfied had the Appellant being directed to seek specialist advocacy services prior to her disciplinary hearing at Lyndhurst Home and indeed, prior to this Hearing. It would have assisted the Appellant to understand the procedure. Having said that, the facts and evidence heard by the Tribunal were overwhelming and it would not have altered its unanimous decision.
43. The reason for the above previous observation is the undeniable fact that the Appellant would have benefited from a fuller understanding of the processes which have resulted in her inclusion on the current sanctions "Lists" and be better placed in the future to rectify her situation through a significant change in her circumstances.
44. The Tribunal is mindful that within the caring services, both in public, private and voluntary sectors, it is still the case that the over-whelming majority of workers are women, of non-white racial and ethnic group, relatively unqualified in health and social care and comparatively low paid and to a visible extent, candidates fitting the general profile of the Appellant fit the specification recruited within the sectors.
45. At its worst case, poor practice and quality of care can result if providers do not urgently invest in the necessary skills uplift made more difficult by the continuing depleted state of the care staff resources market.
46. However, in this case, the tribunal wishes to reiterate its view that the Appellant is not being regarded as a direct danger to adults or children. Indeed, the Appellant was regarded by her employer as showing the qualities of a good worker and was kind to residents. It is important that the Appellant understands the reasons of her actions and of its wider implications with regards to working with vulnerable users in society and, that her determination if she wishes to continue in the caring role should give her the impetus to effect major changes in her personal circumstances.

APPEALS DISMISSED

Maureen Roberts

Bez Chatfield

Jim Lim

12^th November 2008