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Cite as: [2009] UKFTT 157 (HESC)

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Kostadinov v Secretary of State [2009] UKFTT 157 (HESC) (10/ July 2009)
Protection of Vulnerable Adults list

Case No: [2008] 1418.PVA

[2008] 1419.PC

IN THE FIRST TIER TRIBUNAL

HEALTH, EDUCATION AND SOCIAL CARE CHAMBER

BETWEEN

VENTSISLAV DIMITROV KOSTADINOV

Applicant

-and-

(1) SECRETARY OF STATE FOR HEALTH

(2) SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES

Respondents

BEFORE

Maureen Roberts (nominated tribunal judge)

Linda Elliot (specialist member)

Pat McLoughlin (specialist member)

Heard on the 16^th, 17^th and 18^th June 2009, at Coventry Magistrates' Court, Coventry.

The Applicant was represented by Mr Jotangia, Solicitor.

Ms Lydia Kharizanova-Shrive attended as an interpreter.

The Applicant gave evidence.

The Respondent was represented by Mr Richard Smith of Counsel instructed by Ms Grayson of the Treasury Solicitor. For the Respondent Mr K Macauley, Regional Manager, Supported Housing, Midlands South West Orbit Housing Association, Ms B Jones, current Manager at the home and Ms Moore, Team Leader at the home, gave evidence.

Decision

The Applicant applies to have the issue of his inclusion on the Protection of Vulnerable Adults (PoVA) and Protection of Children Act (PoCA) lists determined by the Tribunal pursuant to section 86(2) of the Care Standards Act 2000 ("CSA") and section 4(2) of the Protection of Children Act 1999 ("PCA").

The Applicant was included on the abovementioned lists by the Respondents provisionally and, as his listing was not confirmed within 9 months, he has the right to make this application. In some of the documents the application is, in various places, referred to as an appeal however as outlined in the decision this is of no practical consequence.

The issues for the Tribunal to determine are identical to those on appeal against inclusion in the lists (see section 86(3) of the CSA), namely:

(a) whether the Applicant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult; and

(b) whether the Applicant is unsuitable to work with vulnerable adults or children.

The Applicant's provisional PoCA listing is secondary to his PoVA listing – there is no question of his conduct harming, or placing at risk of harm, a child. The sole question with regard to this listing is whether the Applicant is unsuitable to work with children as provided by s2C of PCA.

The Tribunal makes a restricted reporting order under Rule 14 (1) (b) of the Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules), prohibiting the disclosure or publication of the names of the clients involved in the case and directing that reference to them shall be by their initials so as to protect their private lives.

The Background

The Applicant is in his mid-40s. He has a qualification as a Doctor's or Physician's Assistant obtained in 1990 in his home country of Bulgaria. The Applicant came to the UK in 2000 and worked in another care home before moving to Lammas House in October 2003. At the time of the incident (11/12 June 2007) the Applicant was a Senior Night Care Assistant at Lammas House, Coventry, a residential care home owned and operated by Orbit Housing Association. He occupied this position from 31^st October 2003 until 9^th August 2007 when he was dismissed for gross misconduct.

His dismissal arose out of an incident involving a resident in the home, to be known in these proceedings as JR. This was a man who had suffered with a stroke and had complex health needs as a result, including that he was doubly incontinent, had very restricted mobility and problems with communication. He was staying at the home for 2 weeks as respite care for his wife who was his main carer. His stay commenced on the 2 June 2007.

The Applicant was on duty overnight on 11^th and 12^th June 2007, with one other carer. It appears to have been agreed that the Applicant would look after residents who were housed on the ground floor, including JR, and that the other carer would look after those residents housed on the other two floors. It was a requirement of his care plan that JR be checked every two hours.

An electronic system was in operation in the home by which it was recorded when and for how long checks on residents were made – a printout of the record for the night in question was available for the hearing. This record would suggest that checks performed by the Applicant on JR in the early morning of 12^th June 2007, at 1-17am, 3-03 am and 6-07 am lasted for 5, 3 and 2 seconds respectively. The gap between the latter 2 checks appears to be over three hours. There is a dispute as to whether the hour recorded on these times is correct as the Applicant suggested the clock had not been adjusted for daylight saving – however the time intervals remain the same .

When the day shift staff first checked JR at around 8.30 he was found to be in a filthy state. He was heavily soiled, appearing to have soiled himself on more that one occasion. He was in a generally distressed state and his scrotum was found to be red and bleeding.

The Applicant was subject to a disciplinary process which found that he had been in serious dereliction of his duty and exhibited unprofessional conduct in failing to check JR properly during the course of the night so as to notice that he had soiled himself. During the course of the disciplinary process the Applicant's approach was that he had done nothing wrong, that it was enough for him to have confirmed that JR was asleep and that it would have been wrong had he checked more closely because of a lack of consent.

The Applicant made an unsuccessful claim for unfair dismissal against Orbit Housing Association. The tribunal had a copy of the Employment Tribunal decision. The hearing was in March 2008 and the decision dated 8 May 2008. While the issues before this Tribunal are different and there is no question of the Tribunal being bound by any finding made we were mindful of the findings by that tribunal and we noted that the Employment Tribunal's findings are admissible as evidence. We were helpfully referred to BUPA Care Homes (CFC Homes) Ltd v Muscolino [2006] ICR 1329 at p1333 on this point.

The Law

Section 81 of the CSA places a duty on the Secretary of State for Health to keep a list of individuals who are considered unsuitable to work with vulnerable adults (the PoVA list) – inclusion on the list must be in accordance with the CSA.

Section 82 places a duty on, amongst others, providers of care for vulnerable adults to refer a care worker to the Secretary of State in certain circumstances. One of these circumstances is where the provider has dismissed the care worker on the grounds of misconduct which harmed or placed at risk of harm a vulnerable adult (s82(2)(a)).

Where it appears to the Secretary of State that the reference suggests that the care worker should be included in the list there is an obligation to invite observation and provisionally include the worker on the list. Thereafter, having considered all the information, if the Secretary of State concludes the provider reasonably considered the care worker to be guilty of the misconduct alleged and the care worker is unsuitable to work with vulnerable adults he must confirm inclusion on the list.

In this case the Secretary of State did not reach a conclusion in relation to the Applicant prior to this application being made and so the matter proceeds pursuant to section 86(2) which provides:

Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under section 81 may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State.

The Tribunal gave leave for this matter to proceed in this way on 17^th February 2009 – the issue of the impact of the House of Lords decision in R(Wright) v Secretary of State [2009] UKHL 3 was also considered as part of the leave application and the Tribunal ruled that the matter could and should proceed.

Section 86(5) of the CSA provides:

Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under subsection (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.<

The Applicant's application was dated 28^th November 2008, and the Employment Tribunal delivered its judgement on 8^th May 2008 so this requirement appears to have been met.

The test to be applied by the Tribunal in this case is set out in section 86(3) and is as follows:

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 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 otherwise 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 on the list.

It is for the Respondents to satisfy the Tribunal of the matters set out in section 86(3)(a) and (b) and so they bear the burden of proof. The standard of proof is the civil standard of proof. The Tribunal held in Gedara [2007] 1158.PVA 1159.PC that,

"the civil standard of proof is a single standard, namely the balance of probabilities. The civil standard of proof does not recognise or embody a moving standard according to the gravity of the allegation."

This statement was based on what was said by the House of Lords in Re 11 and others [1996] AC 563 where Lord Nicholls of Birkenhead said this,

"The 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 is satisfied 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."

Preliminary point. By directions on 19 February and 6 April 2009 the Applicant was given liberty to instruct an expert and to serve the report by 30 April 2009 on the Respondent. This was done and the expert's report was included in the bundle of documents. However the Applicant objected to the inclusion of the report in the bundle and stated that he did not intend to call the expert. The tribunal members were mindful of this request in their preparation. We heard submissions from both sides at the start of the hearing. Bearing in mind the direction and the disclosure of the report to the Respondents we decided that it should be available to the tribunal. We read the report. We were mindful that the applicant was not relying on it and did not call the expert as a witness.

Evidence to the Tribunal

The Tribunal heard evidence from the Regional Manager of the Housing Association responsible for the home, the current Manager of the home who at the time was the Acting Manager and from a Team Leader.

Mrs Moore was the Team Leader on duty on the morning of the 12^th June 2007. She explained that JR, aged 75, had been into the home 3 or 4 times before for respite care. On this occasion he was admitted on 2^nd June 2007. There was some concern that he had a chest infection and he had two short admissions to hospital and was prescribed antibiotics. She described the care plan and confirmed that the antibiotics had caused JR to have diarrhoea. The care plan stated that JR was to have 2-hourly checks and that he had purple incontinence pads which have a high absorbancy. She stated that JR's medication and pads were brought into the home by his wife.

On the morning of the 12^th June 2007 Mrs Moore said she was called at about 8.30 by Rukmi Silva who had come on to day duty. She asked for help with JR. When Mrs Moore arrived at his room she was upset and concerned by what she found. She said JR was covered in faeces and urine; there were dried ridges of the matter on his pyjamas and the excrement had dried on his body indicating that it had been present for some time. It took a considerable amount of time and care to clean JR and make him comfortable. When she arrived she noticed that JR had turned and was using his good arm to try and lift himself away from the soiled area.

Mrs Moore asked JR if she might take some photographs and he indicated his consent. The Tribunal saw the photographs. In one of them Mrs Moore's watch is plainly visible showing a time of 9.15 am. The photographs do not show the detail described by Mrs Moore but they do show a saturated incontinence pad on JR, heavily soiled linen, and raw bleeding skin around JR's scrotum.

Mrs Moore said that the 2-hourly checks for JR would require the person doing the check to discreetly check whether the pad was damp and possibly needed changing. She also said that it was definitely the purple (correct) pad that was used for JR and not a yellow pad as alleged by the Applicant. It was evident from JR's notes that he was incontinent and needed changing both during the day and at night. She also said that changing pads at night had been an issue with the Applicant on previous occasions. There was also an issue in that the two night staff were supposed to work together. In fact they nearly always divided the residents between them and worked alone but this was contrary to the policy of the home.

Mrs Jones, who is the present Manager, was the Acting Manager in June 2007. She said that the management of the home was not as effective as it should have been. The then manager had had long periods off sick. She said she did not feel comfortable with the Applicant. His body language and tone of voice were off-putting and abrupt. She confirmed that the Applicant complained about the high dependency needs of residents particularly those coming in for respite care. She noted that staff had been told that social services funded them to provide care for high dependency clients and to remember that respite clients were supported by family or carers at home.

She described the improvements in management that had been put in place in response to the CSCI inspections and as part of her programme of changes as the new manager.

Mr Macauley, as the Regional Manager, had been in charge of the disciplinary procedure and had chaired the disciplinary hearing which had led to the Applicant's dismissal. He attended Lammas House on 12^th June 2007 in order to make the initial enquiries as to what had happened. He said the staff were traumatised and Mrs Moore was in tears about what she had seen. From this incident and generally, improvements in management were made. He said there had also been complaints about the Applicant using his laptop at work and sleeping on duty. Since the incident, supervision and meetings are much more structured; recorded in writing and carried out at regular intervals.

The Tribunal saw an e-mail exchange between the Applicant and Mr Macauley in May 2007 where the Applicant had raised a number of issues about the running of the home. In Mr Macauley's view these had all been fully answered.

Mr Macauley said that what concerned him about the Applicant was his attitude towards the incident: he denied he had done anything wrong; he would do the same thing again; he would change care plans if he thought they should be changed. The Applicant's attitude appeared to be that his approach was the right one, suggesting that this is what he had done in the past and would continue to be his approach in the future. There was, he said, a "rising tide" of evidence of dis-satisfaction with the Applicant's practice.

The Applicant is in his mid-40s. As noted above, he has a qualification as a Doctor's or Physician's Assistant obtained in 1990 in his home country of Bulgaria. He explained to us that this is like a Medical Officer and that in Bulgaria he was addressed as Doctor and was in charge of a hospital. The qualification is not recognised as equivalent to a doctor's qualification in the UK. The Applicant came to the UK in 2000 and worked in another care home before moving to Lammas House in October 2003. Since then he has obtained an NVQ3 qualification and from September 2005 to September 2008 he trained as a nurse for patients with learning disabilities. During this time, and at the time of the incident in June 2007, he was working/training full time and working night shifts at Lammas House. For example, in the week beginning 4^th June he worked 6/7^th June and 7/8^th June on nights and then he worked 11/12^th June. By April 2004 the Applicant was a Senior Night Care Assistant. He was the senior on duty on the night in question.

He said he came on duty at 10.00 pm. He denied that he had divided the residents between himself and HD and said that they had done some of the checks together. The checks for JR showed checks at 1.00 am, 3.00 am and 6.00 am of 5, 3 and 2 seconds respectively. The Applicant said he was not sure if he had done the first two checks but he had checked JR visually at 6.00 am and that he had no concerns. He maintained that the soiling must have occurred after that check. The Applicant said that a member of the day staff had told him JR could be aggressive if woken. He had not woken JR because he thought he should let him sleep. He had not checked his pad as he considered he would need to wake him and get his consent to do this and that it was better to let him sleep. He maintained that the wrong pad had been used for JR, care plans had been altered after the event, and that the time on Mrs Moore's watch in the photograph had been altered to show a time earlier than the true time.

When the Applicant gave evidence to the Tribunal he maintained that he had done an extra check at 7.00 am after he had helped another resident out of bed. In his view the checks were primarily for security to ensure the residents were in their rooms and had not had any disturbance.

The Applicant considered that from a visual check he could tell if JR was in discomfort or had soiled himself. He had worked with JR on two previous shifts during his stay. He said as far as he remembered this was JR's first stay at Lammas House. He said he would have read the care plan and JR's notes.

Findings

The Respondents' witnesses impressed as truthful and straightforward in their evidence. The workers in the home admitted that the Applicant was not liked. The Regional Manager admitted that management and procedures had been improved since the incident. We have no reason or evidence to make us believe that records had been altered or that Mrs Moore had changed the time on her watch prior to the photographs being taken. There was no documentary evidence that the day staff had said JR could be aggressive if woken in the night.

Having read and heard the evidence we find that the Applicant worked the ground floor of the home by himself on the night of 11/12^th June 2007 and that his colleague (and junior) HD worked the first and second floors. Further, we accept that it was the Applicant who did the checks at 1.00 am and 3.00 am and 6.00 am. We do not believe his evidence that he did an extra check (not recorded) at 7.00 am.

The photographs of JR as he was found on the morning of 12^th June were not in very good colour but they clearly show substantial soiling of JR compatible with him soiling himself more than twice. They show clearly the burning by the urine and consequent bleeding of the scrotum. We accept Mrs Moore's evidence that JR must have been incontinent for 3-6 hours to have become that sore. So we conclude that the Applicant must have known that JR was soiled certainly by 6.00 am from the smell in the room and that he walked in and out again and left JR for the day staff to find and change. In this finding we agree with that of the Employment tribunal who found that the Applicant ' did no more certainly on the 6-00am occasion, and probably on the other occasions, than put his head around the door, press the timer, gaze at JR from the safety of the doorway, press the timer again and leave the room.' We also noted the conclusion of the expert that the Applicant had not provided 'the appropriate level of care'.

We therefore conclude that the Applicant failed to conduct proper checks and left JR in a soiled state and that he was guilty of misconduct which harmed a vulnerable adult.

We therefore turn to the issue of suitability. "Unsuitability" is a matter to be judged by the Tribunal and is given no definition in the CSA either. The Tribunal in Mairs suggested that the Tribunal may have regard to the following matters, not to be regarded as an exclusive list: the number of incidents constituting the misconduct; the gravity of that misconduct; the time that has elapsed since that 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 or 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.

The Tribunal said the following in relation to unsuitability in CN [2004] 398.PC 399.PVA (in a passage approved by the High Court in the recent judgement in BP [2009] EWHC 866):

"We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context... It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children 'in a child care position' are beyond reproach."

The tribunal accept that the same considerations apply to working with vulnerable adults as with children and this is clear from the schemes of the CSA and PCA and their similarities. The Tribunal recognised this in MB [2005] 512.PC 513.PVA (in another passage cited with approval in BP) where it was said:

"It is of course essential that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider a vulnerable adult would be at risk of harm by MB. But the law does not require such evidence. It is sufficient to satisfy the test in section 86(3)(b) read with section 92(4) of the [CSA] that she is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm. We believe that public confidence in the provision of services to vulnerable adults would be undermined if it became known that MB was employed to work with vulnerable adults, given the fact that she was prohibited from working with children."

That passage also addressed the approach to be taken in relation to the Applicant's PoCA listing, which is secondary in this case to the PoVA listing. Section 2C of the PCA provides that a care worker can be included on the PoCA list by virtue of being included on the PoVA list if the care worker is also deemed unsuitable to work with children.

Regrettably, with regard to suitability, the Applicant has always resolutely denied that he has done anything wrong. He is very well qualified yet he has shown no insight or empathy into JR's situation: the physical pain caused to him and the indignity of being left in such a soiled condition. He has not expressed any regret or remorse at what happened.

By the time of this hearing this was the fourth time that the matter had been heard (disciplinary hearing, disciplinary appeal and Employment tribunal) and the Applicant was giving a different version of events; for example this was the first time that he mentioned doing an extra check at 7-00am. The applicant's English is in fact very good but we appreciate that it is not his first language. At the tribunal hearing he had the assistance of an interpreter. We find that his evidence was evasive and changeable.

We noted above the care plans at the home were criticised by CSCI inspectors, however a score of 2 was given for them (standard almost met). Two-hourly checks were written up for JR; they were not complied with. It is evident with a resident who is doubly incontinent that his pad must be checked as part of the check. To say that the resident must be woken to obtain his consent for this check at night is not acceptable.

The Tribunal notes that the Applicant complained about the level of dependency of residents and of respite users. He said that some of the residents were in need of nursing care. However the residents were assessed by the home and placing authorities and reviewed by CSCI, none of whom found the placements inappropriate. Also he continued to work at the home and as such had a duty of care to provide the appropriate level of care within his own knowledge and expertise.

Conclusion

The Tribunal has stressed the importance of public confidence (see CN and MB above) and this has been endorsed by the High Court (see BP above). This is a central consideration when assessing whether a care worker is unsuitable to work with vulnerable adults. We accept that, in the light of the evidence in this case, and the application of the Mairs guidance, public confidence would be damaged by the Applicant being held to be suitable to work with vulnerable adults.

We also accept that the same would be true of the suggestion that he be allowed to work with children. His general attitude, evidenced by the incident in question and the way he approached the disciplinary process thereafter, makes him unsuitable to work with children.

The Applicant's application is dismissed and the Tribunal confirms his inclusion on the PoVA and PoCA lists.

Maureen Roberts

(Nominated First-Tier Tribunal Judge)

Pat McLoughlin

(Specialist Member)

Linda Elliot

(Specialist Member)

Date: 6^th July 2009