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

PH v Secretary of State for Health [2008] UKFTT 3 (HESC) (12 November 2008)
PH -v- The Secretary of State for Health [2008] 1289.PVA [2008] 1920.PC
Before:
Ms Maureen Roberts (nominated chairman) Mr. David Braybrook Ms Gillian MacGregor
Heard on 22^nd October 2008 at the Manchester Civil Justice Centre Greater Manchester .

The Appellant did not appear.

Mr Alex Ruck-Keene of Counsel appeared for the Respondent instructed by the Treasury Solicitor Ms Naomi Kincey.

For the Respondent, we heard evidence from Mr Darren Bamforth a Network Support Worker employed by Manchester City Council at the home , Ms Debra Campion the acting Network manager at the time of the incidents and now Network manager for the Central Manchester Support Team with responsibility for the home concerned.


Decision

1. The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 19 February 2008 (the decision letter); firstly (the first appeal) to confirm him on the Protection of Vulnerable Adult's List (the PoVA List) and secondly (the second appeal) to confirm him on the Protection of Children Act List (the PoCA List).
2. The decision letter also notified the Appellant that the effect of inclusion on the PoCA list also meant that the Appellant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that his name had been added to the Education Act List.
3. The tribunal makes a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations), restricting the reporting of the names of residents involved in the case and directing that reference to them shall be by their initials so as to protect their private lives. We further order that the decision be published in an anonymised form, under Regulation 27 to protect the private life of the Appellant.

The law

4. The first appeal (the PoVA Appeal) is brought under section 86 (3) of the Care Standards Act 2000 (CSA 2000) which 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 the course of his duty) 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.

5. The second appeal (the PoCA appeal) is brought under section 4 (3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86 (3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4 (3) of P0CA 1999 with unsuitability to work with children.
6. In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We noted the case of R (on the application of N) v Mental Health Review tribunal (Northern Region) [2006] 4 All ER 194 and were directed to the two recent cases decided by the House of Lords Re D [2008] UKHL 33, and Re B [2008] UKHL 35 where all the recent cases on the standard of proof were considered.

Facts

7. The Appellant was employed as a network support worker for Manchester City Council from 4^th March 2002 until 31 August 2005. From the summer of 2004 until his dismissal in August 2005 he worked at a property in central Manchester with two male residents RP and MH, one of whom (RP) had autism and learning difficulties. RP was described as 'very vulnerable, displays a number of complex behaviours and has particular communication needs.' Double cover was always provided for RP.
8. On the 6^th July 2005 the Appellant had come on duty at 12-00 noon and was to work through to the next morning. In the afternoon the Appellant, Mr Bamforth and RP had all gone to a local supermarket to do the weekly shop. When they got back the Appellant said that they could have pizza and put them in the combi micro wave to cook. While the food was cooking Mr Bamforth observed him 'rolling a joint' in the kitchen. The Appellant is alleged to have said 'I have the odd one now and again, don't worry I haven't put any on the pizzas'. The Appellant lit the cigarette/joint and went outside to smoke it.
9. After tea the RP went into the garden and the Appellant encouraged RP to get on a 'makeshift' swing which he had made using a hammock and a decking tile fastened to a tree. RP got on to the swing and was told by the Appellant that if he did ten swings he would be 'rewarded ' with a cup of tea. RP was fearful of swinging and the Appellant said that he had not done enough for a brew. RP stayed in the garden for some time. Mr Bamforth made a cup of tea for all of them. The Appellant hid RP's cup of tea behind a clock in the sitting room and Mr Bamforth said that he devised a game to ensure that RP found the cup of tea.
10. The Appellant continued to tease RP by saying that if he didn't drink the cup of tea he would lose it. A that point Mr Bamforth decided to take RP for a walk. On the walk they went into a pub and Mr Bamforth phoned his immediate superior (Steve O'Connell) to talk through his concerns. He said that he was going to report the situation to Ruth Armstrong one of the managers the next day. Mr O'Connell said that this would be too late and Mr Bamforth agreed that Steve could phone Debbie Campion to tell her about the situation.
11. Ms Campion attended the property with a colleague (Janis Dolan) at about 9-30pm. The Appellant let them in and denied that he had been smoking cannabis. He said 'that it was a private matter'. The Appellant was sent home and Ms Campion and her colleague conducted a search of the garden and house. They found one cigarette butt in a drain by the back door. This was submitted to the Customs and Excise Unit at Manchester Airport for analysis and a report from the unit concluded that the butt tested positive for cannabis.
12. The acting manager Ms Campion conducted interviews with members of staff on the 7 July 2005. She also had a meeting with the Appellant. She had requested to see him on the 7 July but at his request the meeting took place on the 8 July 2005 to hear his side of events. He said at this point that he had been smoking a herbal cigarette. She interviewed Mr Bamforth and RP on the 15 July 2005.
13. There was a disciplinary hearing held on the 31 August 2005. The Appellant left the meeting half way through. The case of misconduct was found against him and he was dismissed from his employment for gross misconduct. There was an appeal to the Assistant Director of Adult Services on 9 November 2005 and a further appeal to the Employee Appeals Committee on 28 November 2005.The dismissal was upheld at these appeals. The matter than went to the Employment Appeal Tribunal but was resolved before a hearing took place. A referral was made to the PoVA list.

The evidence to the Tribunal

14. Mr Bamforth and Ms Campion gave us some background information about the home and the training programme for staff. The home was one of eleven homes in the Central Manchester area providing care for adults with differing mental health needs. There were two adult residents in the house RP and M. RP was on a 2:1 ratio. The witnesses gave us a description of RP as a man with autism and learning difficulties; he could make his needs known. He understood what was said to him. The Tribunal saw the very detailed description of his needs and routine.
15. Mr Bamforth gave evidence to the Tribunal about the construction of the swing, as noted above. He also had taken some photographs of the swing which showed its proximity to the tree on one side and the garage wall on the other. He described RP's anxiety about being ion the swing in that his face was set, he was frowning and his hands were gripping the ropes. He was fearful of swinging on it. Mr Bamforth recalled that RP had taken six months of visits to a trampoling centre before he could be persuaded to get on the trampoline. He said that the Appellant had said to RP that 'if you do ten swings you can have a cup of tea' and then told him that he had not done enough and that 'you can't have a cup of tea'.
16. In his original statement Mr Bamforth said ' As the shift continued PH started to goad RP repeatedly making RP perform for a cup of tea, RP was being goaded, taunted and ridiculed as a means of entertainment. I was also concerned that pressure was being put on RP and this would lead to him not attending tomorrow's activity. I found this totally disrespectful telling RP to swing on a swing PH had put up by the shed'.
17. Mr Bamforth was concerned that RP was showing signs of being upset and that a cup of tea that was used to motivate RP legitimately was being misused. RP got off the swing and was left in the garden with nothing to do for between half to one hour. At that time RP had a sullen face and was rocking while he stood. Mr Bamforth then made everyone a cup of tea and said that the Appellant hid RP's cup of tea. Mr Bamforth played a game of 'hot and cold' to enable RP to find his tea. Mr Bamforth said that he felt RP was being goaded to use the swing with the promise of a cup of tea.
18. With reference to the 'joint' Mr Bamforth said that it looked like a roll-up but that the Appellant had pulled out some ' brown fudge like' stuff some of which he put in the roll-up and that he sealed it and twisted it. He said that the appellant had not used the word cannabis but had said 'he liked the odd joint.'
19. Mr Bamforth said that the Appellant was not particularily a team player and that he pushed the boundaries. He did not show respect for the residents. He would cancel community activities for RP and had said that 'he didn't do community'.
20. Mr Bamforth gave a description of the culture in the house at the time. All the staff who worked at the house smoked. Neither of the residents smoked. The employment policy stated that staff were not to smoke or drink on duty. A blind eye was turned to staff smoking and a culture of drinking on duty had arisen. Staff were not pulling their weight in that they were just getting through the shift and forgetting that the house was RP and M H's home.
21. On the shift in question Mr Bamforth said the Appellant was the only member of staff who smoked rollups. Mr Bamforth said that he had no doubt that the Appellant was smoking cannabis on the 6 July 2005.
22. Ms Campion confirmed her role as the acting manager at the time. She said that she had been called at 9-30pm on the 6 July and told of the concerns that the Appellant was smoking cannabis. She attended the property with a colleague. She said that the Appellant had taken quite a while to answer the door and was reluctant to let her into the house. Ms Campion went into the sitting room with the Appellant and invited him to sit down. He did not do so and she said that she felt quite intimidated by him. He appeared agitated and angry. He denied that he had smoked cannabis and said that it was a 'private thing'. Ms Campion sent him home and arranged for RP and Mr Bamforth to be brought back to the house.
23. Ms Campion described her search of the garden and that she only found one cigarette end in the area. This was in a drain next to the back door and that this was the one sent for analysis.
24. She also interviewed RP. Ms Campion went through each member of staff and asked him 'What about PH' he replied 'He's not very nice, he shouts at me when I'm messing about 'He tells me to top messing about' Mess about, you'll miss out. Mess about with your tea and I'll throw it in the bin' About the swing he said 'I don't like it' and that when PH shouts that 'hurts him'
25. Ms Campion said that she had had to speak to the Appellant on two previous occasions. Once was to ask him not to come to the house when he was not on duty. The other time was after a training course when there had been a complaint that the Appellant was abrupt negative and rude. She said that it had been a verbal warning. She said that on these occasions the Appellant was 'in your face' angry but not physically aggressive.

The Appellant

26. The Appellant is a man in his forties. He had been employed by Manchester City Council as a carer since 2002. The Tribunal and a full report of all previous appeals and the statement prepared for the final appeal by a solicitor for the Appellant. In the absence of the Appellant we took this as his main evidence. He denied smoking cannabis on duty and complained that one member of staff had lied about the events of the 6 July 2005. In his appeal to the tribunal he said, ' Malicious gossip and one person's lies got me dismissed due to my attitude towards management'.
27. He disputed that he urged RP on to the swing or that he had promised him a cup of tea if he did use the swing.

Findings

28. The Appellant has always denied the allegations. However we find on the balance of probability that he did smoke a 'joint' on the 6 July 2005 and that he urged the service user RP to get on the swing when RP was reluctant and agitated about it. We find Mr Bamforth and Ms Campion's evidence convincing and truthful.
29. We accept that the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult. We take this view bearing in mind that the consumption of cannabis is illegal and was expressly forbidden by the employment policies. We also accept that it may affect a carer's behaviour while on duty. Further we consider that RP was put at risk of emotional distress by the incident involving the swing.
30. The issue that we have to address is one of 'suitability'. In case of Mairs the Tribunal stated that 'Unsuitability must be judged by the Tribunal at the date of the hearing. The judgement 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 judgement 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 or placed at risk of harm a child.' In this case the reference is to a vulnerable adult. The Tribunal went on the say that the Tribunal may have regard to: the number of the incidents constituting the misconduct, the gravity of the misconduct, the time that has elapsed since the misconduct, the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child (in this case vulnerable adult), the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct and extenuating circumstances surrounding the misconduct.
31. From the Appellant's submissions' to previous disciplinary and appeal hearings he does not show an awareness of the inappropriateness of his actions or his behaviour. The teasing and goading of the service user was totally inappropriate and disrespectful. His smoking of cannabis was in clear contravention of the law and his employment policy and could have impaired his judgement while working with vulnerable persons. The Appellant has shown no awareness of the potential consequences of what he did. In the light of these findings we find that the Appellant is unsuitable to work with vulnerable adults or children.
32. The appeals are dismissed.
33. The decision of the Tribunal is unanimous.
34. The decision was announced at the end of the hearing. When the hearing was over the tribunal received a message that the Appellant had attended the court building but been unable to find the court room where the hearing was taking place and had gone home.

APPEALS DISMISSED

Ms Maureen Roberts

Mr David Braybrook

Ms Gillian MacGregor

12 November 2008