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First-tier Tribunal (Health Education and Social Care Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (Health Education and Social Care Chamber) >> JF v Secretary of State [2009] UKFTT 159 (HESC) (14 July 2009)
URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/159.html
Cite as: [2009] UKFTT 159 (HESC)
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Protection of Vulnerable Adults list
Inclusion on PoVA list
- This is an appeal by JF pursuant to section 86 of the Care Standards Act 2000 against her inclusion in the list kept by the Secretary of State pursuant to section 81 of the Act, of persons considered unsuitable to work with vulnerable adults and her related appeal against inclusion on the list of those unsuitable to work with children, kept by the Secretary of State pursuant to section 1 of the Protection of Children Act 1999. JF was provisionally placed on the list on 20th April 2005, that listing being confirmed on 28th September 2005.
- JF appealed against her listing to this tribunal on 8th November 2005. A response was received from the Respondent on 13th December 2005. This appeal was originally determined in 2007. We are aware that a party appealed that decision to the High Court and that the matter was remitted to the Tribunal in early 2008 for a rehearing.
- We deliberately did not look at the earlier decision or the decision of the High Court. We are unaware, therefore, of the conclusion reached by that earlier panel, the reason for the appeal to the High Court or the reasons why the case was remitted.
- In the papers we read in preparation for this hearing there were references to some partial admissions JF made before the last hearing. We are aware that these admissions were withdrawn prior to this hearing. We did not take any notice of the previous partial admissions in reaching our conclusions in this case, nor did we take the view that the apparent change of mind of JF should be held against her at this hearing.
- Appeals to this Tribunal against inclusion on the PoCA and PoVA lists are governed by section 4 of the Protection of Children Act 1999 and section 86 of the Care Standards Act 2000 respectively. Sections 4(3) and 86 (3) (combined) state that:
- Thus there are two elements that the Tribunal panel needs to consider in relation to a PoVA and PoCA appeal. First, there is whether or not the applicant is guilty of misconduct. The second is whether the applicant is unsuitable to work with children or vulnerable adults. If the panel is not satisfied on one or other ground it allows the appeal. However, under section 4(3), if the two criteria are met the Tribunal must reject an appeal against listing: there is no discretion.
- The onus of proving each of the two matters in section 86(3) and 4(3) lies upon the Respondent. The standard of proof is the civil standard of proof. 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. It is for this Tribunal to use its own collective experience in assessing the inherent likelihood of the particularised misconduct. It is that likelihood against which the totality of evidence is to be measured.
- By virtue of her inclusion in the Protection of Children Act list, the Secretary of State for Education made a direction that the Appellant may not carry out work to which section 142 of the Education Act 2002 applies and her name was included on the list kept pursuant to that Act (commonly referred to as List 99). This listing is consequent on the Appellant's inclusion in the Protection of Children Act list, and if her appeal against inclusion in that list is successful she will be removed from List 99.
- The referral by Westminster Health Care ("WHC") was made in accordance with section 82(1) of the Care Standards Act 2000 It was referred as a matter of discretion, since the misconduct alleged pre-dated the commencement of the section: section 82(10) and the decision of the Court of Appeal in Wright [2007] EWCA Civ 999 make it clear that such referrals are permissible.
- It is the Respondent's case that the misconduct identified in each of the 7 particulars set out in paragraphs 26 to 34 below, either singly harmed a vulnerable adult or placed a vulnerable adult at risk of harm. Taken as a whole course of conduct, the risk of harm was all the greater.
- The issues in respect of the Applicant's period of employment at Ashby House are:
- As to the first issue, misconduct, the approach to be adopted was considered by the Tribunal in the case of Angela Mairs v Secretary of State [2004] 269 PC. The Tribunal held at para 109:
- The High Court has recently made clear, in Joyce v Secretary of State for Health [2008] EWHC 1891 (Admin), that the Tribunal can consider misconduct going beyond the terms of the employer's referral to the Secretary of State, for example misconduct that comes to light in the course of the Secretary of State's consideration of the matter.
- As to the issue of unsuitability, the Tribunal has considered this on many occasions. In CN [2004] 398 PC; [2004] 399 PVA it held as follows:
- The Secretary of State argues that there are no degrees of prohibition. If an individual is unsuitable in some way to work with vulnerable adults, then he or she must be included on the list. The utmost importance is to be attached to public confidence. For these reasons, it is submitted by the Secretary of State that, on a balance of probabilities, the Appellant is guilty of misconduct that harmed a vulnerable adult or placed a vulnerable adult at risk of harm and that she is unsuitable to work with vulnerable adults or children. The Secretary of State argues that if the Tribunal finds that Appellant to be unsuitable in some capacity to work with vulnerable adults, then it must maintain her on the list. The scheme does not allow for partial listings, and the protection of vulnerable adults is paramount.
- JF started her care career in 1976 as a care assistant and qualified as a State Enrolled Nurse ("SEN") in 1986. In 1987 she was employed by St James Psychiatric Hospital in Portsmouth as nurse in charge on the acute admissions ward on the night shift. In October 1989 she moved to a Regional Secure Unit as a staff nurse. In 1992 JF qualified as a Registered Mental Nurse ("RMN"). It was a year long management course involving all aspects of management. Between 1991 and 1994 JF worked as a Staff Nurse at HMP Woodhill both as an RMN and as part of the medical staff in a hospital.
- In 1999 JF went to work for Southern Cross and set up from scratch the company's own NVQ centre. She was also responsible for coordinating recruitment of overseas nurses for the company. JF left Southern Cross in November 2000 to return to Craegmoor as a group manager of four care homes in a geographical area covering Bedfordshire. She also had responsibility for overseeing nursing recruitment, being responsible for the interview process for overseas nurses for the company from initial application, interviews, references to final placement and progress through the "adaptation" process. She left that job in 2001
- From 21st May 2001 until she resigned on 6th May 2004, following her suspension for suspected gross misconduct, the Appellant was employed by WHC as Home Manager of Ashby House. Ashby House is a residential care home for elderly frail ("EF") persons and elderly mentally ill ("EMI") persons. The Appellant was referred to the POVA list by WHC by letter dated 4th November 2004 The letter indicated that the Appellant had been suspended on 24th March 2004 and that she had resigned before a disciplinary hearing could be convened on 6th May 2004.
- The Appellant was the Registered Manager of Ashby House for the purposes of the 2000 Act. As such, with effect from April 2002, she (together with the Registered Provider) was under a range of specific duties relating to the conduct of Ashby House, by virtue of the Care Homes Regulations 2001 SI 2001/3965 ("the Regulations"). These included:
- The Regulations impose these duties on "the registered person", which is defined in regulation 2(1) in relation to a care home as "any person who is the registered provider or registered manager in respect of the care home." This makes it clear that the duties were imposed not only on WHC but also directly on the registered manager, here the Appellant. Regulation 44 makes clear that, if there is more than one registered person, where one of them does anything required by the regulations, the other is no longer required to do it. Regulation 43 makes clear that a registered person can commit an offence for non-compliance with certain of the regulations, where they do not comply with a contravention notice. Again, this applies to both the registered manager and the registered provider.
- It is right to note that, under regulation 26, the registered provider was under a duty to ensure that Ashby House was visited by an appropriate individual at least once a month, unannounced, to interview service users and staff so as to form an opinion of the standard of care provided in the home, inspect the premises and records and prepare a written report on the conduct of the home. As the Tribunal has heard, these visits were generally carried out in the present case by Brigid Sedour. Nonetheless, that does not detract from the responsibility imposed directly on the Appellant to comply with these statutory duties.
- It is also relevant to note that National Minimum Standards for Care Homes for Older People ("the Minimum Standards") were published by the Secretary of State pursuant to section 23(1) of the 2000 Act in February 2003. These Minimum Standards form the basis on which the National Care Standards Commission ("the NCSC") determines whether care homes meet the needs and secure the welfare and social inclusion of the people who live there. The Minimum Standards applied from 1 June 2003. They make provision dealing with a range of matters, including:
- The Minimum Standards thus provide a further, helpful yardstick against which the Appellant's conduct of Ashby House can be assessed albeit only from June 2003 onwards, that being the date when the Care Home Regulations 2002 and the National Minimum Standards 2003 came into force.
- It is the Secretary of State's case that the acts identified in the schedule of misconduct amount to a course of erroneous or incorrect behaviour undertaken by the Appellant who knew or ought to have known that what she was doing was contrary either to the general law or to a written or unwritten code having particular application to her profession, as outlined above. As such, she was guilty of misconduct within the meaning of the 2000 Act.
- There are 7 particulars of misconduct relied upon by the Secretary of State. We will set out here the details of those Particulars of Misconduct. There after we will simply refer to them as 'Particular X'
- First particular of misconduct:
- Second particular of misconduct:
- Third particular of misconduct:
- Fourth particular of misconduct:
- Fifth particular of misconduct
- Sixth particular of misconduct:
- Seventh particular of misconduct:
- It is the Secretary of State's case that it was the Appellant's responsibility to monitor and supervise staff, to review the needs of service users and the skills and experience of staff, to identify areas were training was required and to implement such training or to ensure that this was done.
- The reason that this was necessary was that there was a risk of harm: Inadequately trained or supervised staff would be unable to provide adequate care. Lack of training and supervision in wound care and nutrition illustrate risk of harm and therefore could put residents at risk.
- So far as training is concerned, the Secretary of State says that this was not confined to mandatory training such as handling and fire safety (the matters primarily addressed in the Regulation 26 reports). It related to the needs of the service users as a whole. It was for the Appellant to identify (or to ensure that her Deputy or Heads of Unit identified) whether training was required in areas such as record keeping, accountability, nutrition, medication and pressure sores. If so, it was her responsibility to organise it or to ensure that it was organised. She accepted this.
- The Appellant had been in post since July 2001 and should have been carrying out this responsibility since that date. Had she been doing so, staff members should have been receiving monitoring, supervision and training as appropriate. It is difficult to imagine, for example, that the wholesale shortcomings in knowledge relating to the treatment of pressure sores that were identified from September 2003 onwards, could have arisen had the Appellant been properly carrying out her responsibilities for the preceding 2 or more years.
- The evidence the Secretary of State relies on that JF did not do so is as follows:
- The Secretary of State says that the training the Appellant relies on (and we mention in paragraph 43, below) is plainly far too little, far too late. It cannot possibly meet her responsibilities over the preceding months and years.
- Whilst we are looking at the first particular, there are some general points we would make here that are part of our overall view of this appeal. We are concerned that JF seems to have a shallow management background even though she has been working in care home management since 1994. We know that she worked in a care home at the start of her career but when she left the prison service in 1994 it was to go straight to manage a home. JF had not had any previous experience of working in a care home in a managerial capacity. For example, unlike others employed by WHC, JF had never been a deputy manager and so had no "role model" to follow. That might not have been a problem if JF had a deputy manager in post. We know that Linda Vagg was JF's deputy manager but she left in 2002 and was not replaced. We are not convinced, however, that even if Linda Vagg did remain in post that JF would have been able to learn much from her given that she told us in evidence that her approach was often "breathe deeply and it will all be all right".
- We were left with the distinct impression, therefore that JF had little understanding of what it was all about to manage a 60 bed home compared with a 24 bed home. In a smaller home it must be far easier to keep in touch with everything that is happening but in a larger facility it is necessary to have others undertake some of the management for you and that requires not only competent staff but also an understanding and knowledge of what they should be doing.
- With 60 residents monitoring and supervision are important. In such a large home (and in particular given the categories of residents) the only way to keep in touch of day-to-day matters was to see people. The best way to do this is to focus on the most vulnerable or at risk because if they are well cared for it is implicit that those less at risk are also well looked after.
- Another way to ascertain the training needs of the staff was to use the care profile documentation. We are satisfied from what we have seen that the documentation was poorly kept and that there was a lack of evidence of any review of individual care profiles. This again shows a lack of monitoring. The need for training on how to complete these care profiles was highlighted a number of times and NCSC had referred to training needs in several reports. Likewise Hilary Stevenson had mentioned over a six month period (late 2003 until early 2004) the need for training to be put in place but this was not done.
- We do not think that it is impossible to manage a 60 bed home without previous management experience of such a facility if someone is fully aware of what needs to be done. We cannot be satisfied that JF was ever aware of the need to monitor and supervise people's work (such as writing up care profile records) nor are we convinced that JF knew that as a manager she should have walked around the home and checked care plans to see if everything was up-to-date. We have come to the conclusion that JF's failure to monitor her staff was because she had a lack of understanding of service users' needs and that led directly to the lack of training. If one knows what are the needs of service users, how they are to be met, what was required to ensure that they are met and so what skills are required, the training needs become clear and can be provided.
- One of the clearest examples of how we see that JF had a lack of management experience which led to a lack of training can be seen in her comments about the community. She was very concerned about the home's reputation in the community and the difficulty with the use of the drop-in centre. We came to the conclusion that the best way to enhance the home's reputation in the community would have been to provide good quality care from well trained and motivated staff. If JF's first priority had been the needs of the residents, everything else would have fallen into place.
- Regulations 18 and 19 and National Minimum Standard 27 make clear the duties of the Appellant to ensure that at all times suitably qualified, competent and experienced staff were working at Ashby House in appropriate numbers to meet the health and welfare needs of its service users.
- The risk of harm in not having suitably qualified staff is that a lack of RMN in EMI unit presents risk of harm to residents. So too does inadequate skill mix of staff to meet needs of actual residents. Those service users included some 30 or so living in the EMI Unit with a range of mental health needs, including dementia related needs, of varying complexity. Mental health issues could arise at any time, which would call for appropriate skilled nursing input.
- It is submitted by the Secretary of State that this would plainly require, among other things, at least one staff member in the EMI unit to be a qualified RMN and the Head of the EMI unit to be adequately skilled and trained in the provision of care to the elderly mentally ill.
- The Secretary of State says that the evidence demonstrates that the Appellant did not ensure that these two requirements were met. Irene Wild's evidence was that a nurse called Michael Olawale was being treated as the qualified RMN on the EMI Unit, but he was not an RMN. The Appellant accepted that he was not an RMN. On discovering this, Irene Wild immediately contacted Ms Sedour and arranged for an RMN to come in and cover.
- Mohammed Zahid was not a RMN, he was a RGN. As such, according to the Secretary of State, it must be highly questionable whether he was suitable to be appointed Head of the EMI Unit at all. If he was to be appointed Head of the EMI Unit, it was particularly vital to ensure that he had skills, training and experience in the provision of care to the elderly mentally ill. As the evidence regarding references makes clear (see below) this information was certainly not available from the references obtained for him. The only evidence, therefore, was that at the time of his appointment as Head of the EMI Unit he had worked in Ashby House in the EMI Unit for less than 12 months. During that time, there was no permanent RMN in the unit to train, supervise or mentor him. This provided inadequate evidence of his skills, training and experience in the provision of care to the elderly mentally ill to make his appointment as Head of Unit appropriate.
- The Appellant accepts that it would be "desirable" for one member of staff to be an RMN. It is submitted that this was essential, not merely desirable. Clearly Irene Wild viewed it as such, since she immediately sought RMN cover when she discovered that Michael Olawale was not an RMN.
- JF said in evidence that there is a recognised shortage of RMN nurses in the UK and that when she arrived at Ashby House she was the only RMN in the building as the Head of Unit for the EMI, Wendy George, was an RGN. JF told us that she had managed to recruit RMNs over the 3 years she was at the home but that, due to the proximity of the psychiatric unit next door and the higher pay scales that were offered, it proved difficult to retain them. JF said that there was in place a bank of RMNs that were used who were familiar with the residents and their care needs and that the records should also be available.
- The Head of the EMI unit, Mohammad Zahid, had applied to undertake the RMN conversion course run by Westminster Healthcare. His training application had been signed by both JF and Brigid Sedour and had been forwarded to the Training Department headed by Terry Tucker. Mohammad Zahid had had previous experience of the EMI unit. He carried out six months adaptation there and was considered by Wendy George to be a competent and caring individual. When the position of Head of unit became vacant Zahid, applied for the position along with Ingrid Schoeman another RGN. Despite the position being advertised, no RMNs applied. Both Ingrid Schoeman and Mohammad Zahid were interviewed for the position by JF and a colleague, another Home Manager, Zora Johnson. Mohammad Zahid performed well at interview and demonstrated his knowledge of caring for EMI residents.
- We find it curious how Zahid became the Head of Unit. We find that he was there for a short time before he was appointed and that there was a lack of suitable references for him when he was appointed (see below). As it seems his references were not retained (being kept, surprisingly, by a previous employer) or taken up, it was not possible for JF to know if Zahid was adequately skilled. It would not have mattered that he was not an RMN if he had a background of dementia/mental health issues but there was nothing to show that he did. We find that JF did not ask simple basic questions about managing such as: what is going well? What is difficult?
- We are satisfied that the home was not short-staffed (Isobel Prat confirmed this) so the issue here is not the lack of staff but the lack of skills of some staff. An example can be found in relation to the pressure sores. Staff members were concerned and reported the matter but nothing was done. There was an apparent unwillingness to contact the tissue viability nurse. This would have become apparent if JF had monitored those residents most at risk. This would have led to JF realising that the problems she faced were not insufficient staff but staff who were not suitable for the posts they occupied. This comes back to training, taking up references and monitoring.
- The lack of RMNs meant that it was necessary to make sure that the staff were suitably equipped and trained and knew what they were doing. For example (and it links to training again) we are aware that the Alzheimer's Association does dementia training and they could have been asked to assist earlier than they were.
- We are satisfied that the care staff were skilled in what they were doing. It is that they were not managed properly by the head of the unit and that was because he did not have the knowledge or experience himself.
- Ms Davies argues that, as noted above, the Appellant was under a statutory duty to employ only persons who were fit to do the relevant job, and in respect of whom she had obtained two written references. This was reflected in WHC's internal policy of July 2002. This required that at least one of the references should be from the current or immediate last employer, by a named person with a job title which was clearly a senior, supervisory or managerial position.
- The risk of harm caused without proper checking of job references is that it is impossible to know whether staff are fit for the job they are employed to do. If they are unfit, there is an obvious risk of harm to residents.
- Here, the Secretary of State relies on the evidence of Brigid Sedour as to what she discovered when looking at the staff records, supported by her written notes made at that time. In particular, she found: Mohammed Zahid started work on 9 September 2001. At that stage there were no references for him. It is submitted by Ms Davies that it was not appropriate for the Appellant to rely on In Touch Care, the agency through whom he was recruited, to have checked his references. That did not satisfy the Appellant's responsibilities. No reference was secured from Zahid's immediate last employer. Zahid completed an application form for the Head of the EMI Unit on 13 November 2002. He gave as referees Wendy George, the previous head of unit, and Mohammed Zubair, the Head of the EF Unit, to whose sister he was engaged. This was widely known and it is submitted must have been known to the Appellant. Brigid Sedour, who was not in the home on a daily basis was aware of the relationship, as was Rose Magowan "from her first visit or very early on". Those two individuals provided references.
- Mohammed Zubair started work on 11 October 2001. On 15 October 2001 he applied for the post of Head of EF Unit. No references had been obtained for him at this stage and a further request was sent at the end of November 2001. A reference was supplied by Chris Hall, former Home Manager at his previous place of employment. This stated that he had known Zubair for only 5 months professionally, that "Zubair will tell you why he left" and that he was still on a learning curve. That was a reference that should have set alarm bells ringing. Although the Appellant said that she had telephoned to follow up the reference, she could not say whether she would have made a written note of that conversation. On 8 August 2003 a reference was put on Zubair's file written by Djameel Ahmed, who was junior to him at Ashby House. This said that Djameel had known Zubair for 15 years as a colleague and that they had trained together in Pakistan.
- Djameel Ahmed started working at Ashby House in April 2003. References were obtained from Mohammed Zahid and a Mr Jetto, Service Manager at Leonard Cheshire. Mr Jetto's role was unclear, and he stated that Djameel was still adjusting and developing.
- It is submitted by Ms Davies that in the case of Zahid, he was allowed to start work without references having been properly obtained. It was over a year before they were obtained, and when they were they were not sufficient to meet the Appellant's statutory or contractual obligations nor to ensure Zahid's fitness.
- In the case of Zubair, he was allowed to start work without references having been obtained. The reference that was obtained raised more questions than it answered and it is far from clear that these were satisfactorily addressed by the Appellant making further enquiries. The further reference, obtained nearly two years later, was not sufficient to meet the Appellant's statutory or contractual obligations nor to ensure Zubair's fitness.
- In the case of Djameel Ahmed, a full circle was completed: Zubair gave a reference for Zahid, Zahid gave a reference for Djameel and Djameel gave a reference for Zubair. The references were not sufficient to meet the Appellant's statutory or contractual obligations nor to ensure Djameel's fitness.
- Insofar as the Appellant purports to have relied upon references obtained by In Touch Care from Pakistan the Secretary of State argues that, (i) those should have been on the employee's files; (ii) they did not satisfy the requirement for a reference from the immediate preceding employer; (iii) if they were present, it is difficult to see why it was necessary to go to the trouble of putting a reference from Djameel Ahmed on Zubair's file in 2003.
- In addition, it was noted by Irene Wild that references were not in place for some staff and that in other cases they were written by family members.
- JF refutes this allegation. JF told us that references were taken up for staff members which were not 'family members'. When Mohammad Zahid started his adaptation at Ashby House, his references were provided by In Touch Care. When he applied for the position as Head of Unit, JF said that she took up references again to ascertain his suitability for this new position. One of his references was provided by Mohammad Zubair a colleague. JF said that she was unaware at this time that Zahid would much later go on to marry Mohammad Zubair's sister.
- We find that JF did not take up some references before employing staff (Zubair and Zahid in particular) and when she did have references she did not pursue statements made in those references. For example the phrase "Zubair will tell you why he left" was crying out to be followed up, but was not.
- Those references that were taken up (such as from In Touch Care) were not satisfactory and were contrary to company policy. We are satisfied that there was a "circle" of references with some being supplied by family members.
- The risk of harm that may be caused by a lack of adequate care profile means staff may not know e.g. what treatment to give a particular resident, whether they have been turned or given their medication or weighed, whether they are at risk of weight loss or pressure sores, how they should be managed and so on. Without proper care profiles it is impossible to know if proper care is being given.
- While it is accepted that the Appellant need not physically complete and update each care profile herself, it is argued by Ms Davies that it remained her responsibility to ensure that this was done by staff. This could and should be done by regular, spot checks of the care profiles, with follow-up of any deficiencies and staff training if appropriate.
- The evidence shows that she failed to do so over an extended period. In particular Ms Davies relies on the NCSC Inspection Reports of January 2003 (where it states: "Care records seen were not of an appropriate standard and following a recent complaint one would have expected more care to have been given to the completion of these records. …."); March 2003 ("Changeover to new plans still not complete. Previous requirement not met."); September 2003 ("Changeover still not complete almost a year on. Shortcomings in care plans.") and March 2004 ("Marked improvement but no change deemed necessary in care plans examined for 12 months suggesting more thorough reviews required.")
- Ms Davies also relies on the evidence of Rose Magowan. On 19th September 2003 (9 months after first raised by NCSC) Ms Magowan reported that "ALL the Care Profiles needed attention to either a lesser or greater extent." On 1st October 2003 she suggested the order of Care Profiles provided and on 15th December 2003 she noted that there was a whole range of shortcomings in Care Profiles with respect to tissue viability etc identified. The Appellant accepted these in cross-examination.
- The Secretary of State also relied on the evidence of Hilary Stevenson who had identified a raft of shortcomings in the care profiles in February 2004. She noted that the documentation in Mrs Howarth's case did not meet WHC or NMC standards. She showed the Tribunal specific examples of failures to record either that fluid had been given or that it had been offered.
- In addition, says Ms Davies, when Isobel Prat was at the home in March 2004 she noted specific shortcomings in care profiles e.g. re Waterlow Scores and nutritional assessments and "clear lack of understanding" as to how to review a care profile. While she was there she also noted (and told us in her evidence) that the care profile documentation was "very poor overall", that there was an "appalling lack of evidence that any proper reviewing of care profiles had taken place", that there was "no safe way of knowing what action to take in respect of residents" and that "It is the Home Manager's overall responsibility as the Registered Manager for the Home to see that this is done." Irene Wild also found that the Care planning was "very poor" and care plans were "extremely poor".
- The Secretary of State argues that since the Appellant had been in post more than 2 years, had she been carrying out her responsibilities properly throughout that period, it is not conceivable that the wholesale shortcomings referred to above would suddenly have arisen. Likewise, the training provided by Rose Magowan in October 2003 cannot possibly be adequate to meet the Appellant's responsibilities in this regard from July 2001 onwards.
- This, says Ms Davies, cannot be excused or explained by the changeover to WHC's new documentation. Properly completed documentation is necessary to ensure that proper care is given. It was the Appellant's job to make sure that the documentation supplied by WHC was properly completed. It is telling, says Ms Davies, that Isobel Prat and Irene Wild, who also used this documentation, were so shocked at the poor standard of documentation at Ashby House. At the very end of her cross-examination, the Appellant said that she accepted responsibility for the gaps in the documentation. It is not clear to what extent that was an admission of misconduct.
- JF told us that Westminster Healthcare had changed the format of its care profiles. This included 16 long term care plans per patient and short term care plans, as necessary. Westminster provided a transition period for these care plans to be implemented. Training was delivered to the qualified staff by Rose Magowan. She carried out an audit of the care profiles and JF said that she later carried out her own care plan audit.
- JF also said that, as part of the Regulation 26 inspections, Brigid Sedour also looked at the care profiles. The evaluation and updating of these profiles is something which is carried out by the Named qualified nurse, not by the Home Manager. JF said that, therefore, her role was to "sample" the care profiles to ensure compliance and to carry out audits, which had also recently been implemented. It would be physically impossible for the Home Manager to evaluate and update 16 plus care plans per patient for each of the 64 residents.
- There is no doubt that the care plans were poor. We find that this was because JF was unwilling or unable to talk to the staff about how to do their jobs and what they needed to do. For example, Ms Prat mentioned that when she was at the home, a terminally ill patient had been changed from paracetamol to morphine patches (the strongest form of pain relief) although these had to be prescribed under the Dangerous Drugs Act and kept in a locked cupboard. The requirement for increased pain relief was not recorded in the care profile. We accept that Ms Prat and Ms Wild were concerned that the new format care profiles were not used at the home and that they could have been without much difficulty. Here the new plans were not being used month after month after month.
- The failure to use the plans means that the records may not have been kept up-to-date, that the needs of the residents were not identified and so it would not have been possible for anyone to pick up the file and know what was happening. As we have indicated before, we regard periodic reviews as part of a manager's job: looking to see where the organisation is, what needs to be done and what is required to ensure it happens.
- The consequences of not recording matters at all were potential mistreatment and inappropriate handling, lifting or eating arrangements. The lack of periodic reviews in all aspects of the home, but particularly in the use of the care plans and charts was a further indication of JF's lack of management experience. Periodic reviews are useful tools to sort out what is going on in the business to ensure it is on top of the needs of the residents by (for example) identifying training needs.
- The specific example of wound care illustrates a number of the generic items of misconduct, in particular staff training and care profiles. Risk of harm: Obvious risk of harm. Actual harm to resident referred to by tissue viability nurse (October 2003) and those referred to in the witness statement of Isobel Prat and Irene Wild.
- There were evidently issues concerning wound care in early 2003 when a complaint was received about a Mr Carter suggesting, if nothing else, that there were shortcomings in record keeping about pressure sores.
- Rose Magowan visited Ashby House in August 2003 and identified a number of areas of concern relating to tissue viability. Rose Magowan carried out a further visit in September 2003. She noted that nothing had been done to address the issues raised.
- A complaint was received from the tissue viability nurse on 1 October 2003. She identified a number of shortcomings in the care of Margaret Stevens, including – not receiving analgesia, mattress over-inflated, dial on pump missing, either not turned or turning not documented, in upright position, bed motor broken. She had taken photos of the lady's extremely severe wounds. Most worryingly, she expressed the view that the extensive nature of the pressure sore could have been prevented with proper treatment.
- The Appellant said in cross-examination that she accepted the criticisms of the Tissue Viability Nurse, (save that Mrs Stevens had a chest infection and could not lie down). However, her response was very much directed at the steps she had taken to alleviate Mrs Stevens' condition. There was little, if any, indication of any steps taken to make sure that no other resident suffered in this way. Although the Appellant said that she asked the Tissue Viability Nurse to deliver training, it appears from Rose Magowan's note of 15 December 2003 that she had not done so by that stage and intended to do so "at some later point." According to Hilary Stevenson's report of February 2004, still no training had taken place. It is submitted that the Appellant failed to recognise on 25 September 2003 (when the Tissue Viability Nurse showed them to her) that Mrs Stevens' sores were a reflection of widespread poor practice that required immediate action to prevent anything of the kind happening again. Even if, as she says, she had tried unsuccessfully to secure training from the Tissue Viability Nurse, then she should have sourced training from elsewhere and taken urgent action to implement Rose Magowan's action plan.
- However, she did not do so: see the evidence of Hilary Stevenson, Rose Magowan, Irene Wild and Isobel Prat, including:
- The Appellant criticises what she describes as a "scattergun" or "broad brush" approach, but it is submitted that the individual examples given amount to clear evidence of general failures on her part: failures to ensure that staff were properly trained in the prevention and treatment of pressure sores, failure to take reasonable steps to ensure that proper care was given so that residents did not develop pressure sores and failure to ensure that their pressure sores were properly documented and monitored.
- JF says that the allegations here are vague. In responding to these allegations, it would have been helpful to her if she had been given additional information. However, she felt that she could respond in part to those things which were in place at the Home to monitor care of the residents.
- There was specialist equipment provided in the Home. This included pressure relieving mattresses, pressure relief cushions foot muffs, sheepskins, heel protectors, elbow protectors and cot side covers. Each resident was assessed via the Waterlow scoring system to assess the risk of sores. There was a contract with Huntleigh Healthcare for the repair of these mattresses and a system in place for the reporting of equipment repair. There was an order for 3 new pressure relieving mattresses placed with Talley Healthcare prior to her suspension.
- There were also turn charts in the rooms of high risk residents and they were turned two hourly over a 24 hour period. A Polaroid camera was used to take photographs of wounds, in order to record progress. All residents were examined for pressure damage or wounds in the first 24 hours of admission to the Home. This was particularly important for any resident following admission to an outside hospital.
- A monthly pressure sore audit was undertaken on each unit and forwarded to the Healthcare Development team, recording the name of the resident, the location and grade of the wound, treatment protocol and either an improvement or deterioration in condition.
- The tissue viability nurse was involved at the Home, but this was for a limited time. JF told us that she wrote to this nurse at least twice to involve her in the training of staff at the Home but received no reply from her. The initial introductory visit from the Tissue Viability nurse was to assess the amount of dressings held on the units. She criticised the amount of dressings held in the cupboard and instructed the qualified staff not to stock pile dressings. As well as the dressings in the clinic room there were ample dressings in the store cupboard prescribed for each individual resident as required.
- Wound care training was carried out at the Home. It was carried out by Smith and Nephew on 2nd March 2004 and by Sorbsan on 10th March 2004. Pressure mattress training took place on 11th March 2004 by Talley Healthcare.
- We were shown colour photographs of serious pressure sores that were taken whilst JF was manager of the home. We were told by Ms Prat that these sores had healed within 3 months of JF's departure. We are not suggesting that JF was directly responsible for the state of these sores but we are of the view that because of the lack of management given by JF in the home coupled with the failure to check the most vulnerable residents these sores were allowed to develop and remain longer that was necessary. We do not accept JF's statement that she did not need to check the state of the sores because that would be challenging the staff. It was part of sensible management to check and if there was a problem (as there clearly was here) the staff DID need to be challenged, and trained.
- We were equally concerned about the poor relationship that the home had with the tissue viability nurse and the fact that Zubair and Zahid said that she was "trouble". The nurse had raised concerns about the state of some pressure sores in late 2003 but there was no evidence that any action was taken as a result. Whilst we accept that there was training in March 2004, given the letter from the tissue viability nurse the previous year we find that this training was too little, too late.
- For us the sores epitomise what was wrong. JF's lack of management in the home allowed the sores to develop and not heal. The fact that Zubair and Zahid were able to comment about the tissue viability nurse as they did suggests to us that neither of them were being properly managed (if at all) by JF and the failure to act as a result of the nurse's letter shows either an unwillingness or an inability to do what was required – which included proper and effective management of the two Heads of Unit. Checking what is happening is NOT challenging staff, it is undertaking effective management, supporting and encouraging staff and taking care of the residents. It is not necessary to train every member of staff – but a cohort needed to know what to do, an understanding of the operation of the care plan system was required and information on effective treatment was required. There was a failure to use the knowledge and expertise that the tissue viability nurse had. We find this particular proved.
- The National Minimum Standards specify that nutritional screening should be undertaken on a service user's admission and subsequently on a periodic basis, a record should be maintained of nutrition, including weight gain or loss, and appropriate action should be taken.
- Ms Davies says that there is an obvious risk of harm and, indeed, the actual harm to residents was referred to in the witness statements of Isobel Prat and Irene Wild.
- The evidence we heard and read included Rose Magowan's email of 19th September 2003 pointing out that she had had to show the Heads of Unit and Deputy Home Manager where on the computer to download WHC's Nutritional Assessment Tool and Nutritional Profile, following the requirement in the NCSC Inspection Report of September 2003 to weigh service users regularly and take appropriate action if losing weight. In addition, Rose Magowan's email of 15th December 2003 following her further visit pointing out that it was still difficult to find evidence of weighing of residents and identifying steps that needed to be taken. Further evidence is to be found in the NCSC Inspection Report March 2004.
- Irene Wild was very clear in her evidence: "One of the first thoughts that struck me when I arrived was why everyone was wearing clothes that were too big for them. I later found out that everyone was wearing their own clothes, but that they had lost considerable amounts of weight." "… One of the problems I soon discovered was that the residents had not been weighed at the beginning on admission. …There was just no basic recording - no recording of vital signs nor recording of weight. We also had to go by residents' clothes sizes. We discovered that there was weight loss of between 2kg and 40kg. …" "… I then took the Appellant on a tour of the home. … It was also obvious to me that a number of the residents had weight problems but that the Appellant was either not aware of or was not concerned about this."
- Isobel Prat was equally clear: She told us that it was not acknowledged that many residents had obviously lost quite large amounts of weight since admission. There was no acknowledgement of this on either the Care Plan 7 or the short term Care Plan. This was despite residents being weighed monthly. Even where weights were recorded and showed a loss of weight there was no follow through, "nobody asked why". "The other thing that was very apparent to me within a short time of arriving at Ashby House was that a lot of the residents there were underweight. It was very obvious. The documentation recording residents' weight was extremely poor or non-existent. If a resident loses weight, this can be an indication of other problems that need to be addressed and monitored, for example the resident needing to be referred to their GP or supplements given. Without appropriate records, it would be difficult to keep weight loss under review or to take action in the interests of the residents."
- Other evidence concerning resident's weight included Hilary Stevenson's report of February 2004 identifying that weights were being carried out but not regularly recorded on Nutritional Assessments; Nutritional Assessments not completed fully or at all; and no action taken where "at risk" was identified or in response to a complaint about Mrs Howarth]. Both Isobel Prat and Irene Wild gave evidence about how conspicuous the evidence of weight loss was. Ms Davies says that this should have been equally obvious to the Appellant, she should plainly have been carrying out appropriate checks of the documents, but equally, she should have identified the problem from her observation of the residents. It is striking that by the time of the June 2004 inspection report, after the Appellant's departure, all residents in the EMI unit had put on weight over the preceding month says Ms Davies. When asked about weight loss, the Appellant again at various points of her cross-examination indicated that she accepted responsibility or accepted some of what was said but it was coupled with complaints by her about a lack of specificity and it is not clear how far it was an admission of misconduct.
- JF said that since the names of the residents who were losing weight or his/her medical condition had not been provided to her she found it hard to comment on these allegations.
- However, JF assured us that there were systems in place at the home to address the problems of a resident losing weight. Any resident found to be losing weight was identified by the monthly weighing sessions and would be prescribed dietary supplements. Any residents refusing food would be offered alternatives and this would be documented in the care plans.
- We accept the evidence of Irene Wild unreservedly. She was a credible witness and we have no doubt that she reported accurately what she saw. We accept, therefore, that it would have been apparent to the staff (as it was to Ms Wild) that the residents' clothes were loose fitting. We note that everyone gained weight after March 2004.
- We note that JF did agree that she did fail to ensure that the weight of residents was measured. Once again, we find that this failure is part of JF's lack of management experience and skills. It is part of the whole circle of failure by JF. Had the care plan weight charts been used (they were not), had training been given on their use (it was not) had the residents been weighed regularly (they were not) the weight loss would have been noticed and steps could have been taken to remedy matters.
- The failure by JF to effectively manage the home is powerfully illustrated by the weight loss of the residents. The weight loss was not caused directly by poor management. It was a consequence of other management failings, each minor but having a cumulative effect. The lack of use of the charts, the lack of training on the use and need for the charts and the lack of consistent effective weighing are not individually serious matters but the effect of the failings was – obvious and comprehensive weight loss of the residents. This particular is proved.
- Ms Davies said that taken singly and together acts listed in the schedule of misconduct amount to a failure on the Appellant's part to provide adequate care for residents, or to ensure that this was provided, to meet their health, personal and social care needs, and amounted to neglect. It is submitted by Ms Davies that, having regard to the statutory and professional standards identified, these failures on the Appellant's part plainly amount to misconduct within the meaning of the Act.
- Each of the items of misconduct singly either harmed a vulnerable adult or placed a vulnerable adult at risk of harm, as summarised in the table below. Taken as a whole course of conduct, the risk of harm was all the greater.
- As to neglect, the Appellant accepted in cross-examination that the matters listed in WHC's internal POVA documentation could amount to neglect. It is submitted that these matters occurred at Ashby House, and did indeed amount to neglect.
- This was the Appellant's personal responsibility, for the reasons already addressed.
- JF told us that she strongly refutes the allegations that she failed to provide adequate care for her residents or that they were neglected. She told us that she believes herself to be a caring and compassionate nurse.
- We have found all of the allegations of misconduct proved. We find that JF was not managing the home properly or effectively. There was not, as sometimes happens, a single event (such as a death of a resident) to bring the shortcomings to the attention of others. To all intents and purposes the home seemed to be running well – indeed, there was an increase in the number of residents whilst JF was in charge. However, there were several minor problems as mentioned above. Each of these problems – not taking references; ability to manage the Heads of unit; dispensing of medication; staff training; weight loss; documentation and the relationship with the tissue viability nurse – all added together. It was only when the Isobel Prat and Irene Wild went to the home that the weaknesses were noticed.
- We accept that there were some shortcomings in WHC's management structure. For example, Bridget Sedour was a 5 hour drive away and any Regulation 26 inspections she made were always announced. That is not appropriate. The intention is that Reg 26 inspections should be unannounced. By being so far away Ms Sedour could not pay sufficiently close attention to the home and so was not able to notice the problems and so did not manage or supervise JF. It would have been relatively easy for JF to cover up any shortcomings during an announced monthly Reg 26 visit.
- The repeated failure by Ms Sedour to do anything about the failure to implement the care record system is a case in point. Although there seems to have been a number of reports on what was not being done in the home there was little management intervention to take steps to put it right. Matters only came to a head when the two relief managers (Ms Wild and Ms Prat) went to the home in March 2004.
- Whilst we acknowledge that financially the home was doing well and JF was paid bonuses for the increase in turnover, this was putting the wrong priority first. The most important role of a manager of a home is to be on top of what is happening in the home. We felt that JF was not and did not know how to be. We again think that this is, in part, a failing of the management systems of WHC. If Ms Sedour had been managing JF more closely she would have become aware of JF's shortcomings before Ms Wild and Ms Prat drew them to her attention.
- We find that JF did not get her priorities right. Whilst she may previously have been a good and caring nurse that is not the role she was doing at Ashby House. She had as her priorities finances and reputation rather than being person-centred. It may have been the pervading philosophy of WHC, of course, to put finances and reputation first but we believe that a care home (and thus a care home manager) should put the residents first. We find that JF believed that the needs of the residents were the job of her Heads of Unit. That is her error. If she had put the needs of the residents first in her priorities, the training, references, pressure sores and implementation of the care charts would have occurred. And, ironically, by having an excellent home where everything operated as it should, the reputation of the home would have improved of its own accord and, therefore, so would the financial position.
- We found Ms Sedour to be less impressive than Ms Wild and Ms Prat. The distance she was from the home meant it was very difficult to manage JF effectively. We think that Ms Sedour should have taken action earlier to address the shortcomings others saw in March 2004. If Ms Sedour did not see them before she was told, it is another indication of the weak management above JF. If there were concerns about the failure to implement the care plans, why did this not make Ms Sedour think what might be the cause of the failure to implement? If she was concerned, why didn't she act sooner?
- Ms Davies asks us to consider the question of unsuitability. She says that unsuitability is a matter for the Tribunal having heard the evidence before them. It is submitted by Ms Davies, having regard to the nature of the misconduct and the Appellant's response at the time and since, that the Appellant is unsuitable to work with vulnerable adults.
- Ms Davies says that if the Tribunal accepts that the Appellant committed the misconduct outlined above, this amounts to a course of misconduct by someone in a position of responsibility and accountability. The Appellant was responsible for the standard of care provided to around 60 vulnerable elderly people resident at Ashby House. Her misconduct led to serious shortcomings in the standard of care delivered to them. It is submitted that it clearly led to some of them suffering unnecessarily from extremely severe, yet preventable, pressure sores. It led to many of them losing weight. And it placed them all at risk of harm as a result of the manner in which care was delivered.
- It is submitted by the Secretary of State that the Appellant cannot rely on lack of support from her superiors or from her own staff as excusing her conduct. Nor can this be used to suggest that she is not unsuitable to work with vulnerable adults. It is not accepted that the shortcomings at Ashby House were a result of either a lack of support from her superiors or difficulties in recruiting staff at Ashby House. But in any event, it would be for the Appellant, as Home Manager, to address such difficulties. This is not a case of a junior or inexperienced employee, it is a senior and experienced care home manager. She would need to make recruitment a priority if that caused difficulties. And she would need to call on support from her superiors if that were required. There is nothing in the evidence to suggest that the Appellant would do this, and the Tribunal can therefore have no confidence that the Appellant would handle the situation any differently in future.
- Equally, the Appellant may suggest that she was let down by her Heads of Unit, but it was her job as home manager to monitor them and ensure that they did their job properly. To the extent that they were not doing so, the Appellant should have known this and she should have taken steps to remedy it. If indeed there were serious shortcomings on their part, then it is a matter of concern that the Appellant either did not recognise this, or did not act upon it. That again points to her unsuitability.
- It is not accepted by the Secretary of State that this is a "one-off" confined to a limited period when the Appellant was under particular stress. For the reasons outlined above, it is submitted that the misconduct must have been ongoing for a substantial period, from at the latest January 2003.
- The Appellant accepts very little responsibility for shortcomings at Ashby House says Ms Davies. During cross-examination Ms Davies said that JF accepted in a limited way that she was responsible for the matters identified in the Tissue Viability Nurse's complaint, but that was not coupled with action at the time to make sure this never happened again, and the Appellant still does not give the impression that she recognises the extent of her shortcomings in this regard. This remains a matter of concern and can offer the Tribunal no reassurance that she has learnt any lesson or would behave any differently in the future. Equally, she accepted under cross-examination some responsibility for gaps in care documentation and for residents' loss of weight. None of her admissions appears to have been the result of careful reflection on her past conduct, but rather a reluctant and limited acceptance of some matters where the evidence leaves her little choice.
- Ms Davies submitted that it was troubling that the Appellant continues to minimise her own responsibility. In respect of the complaint from Mrs Howarth's family, rather than reflecting on the wide range of failures in care that this had brought to light, she was more concerned that, in her view, the complaint was motivated by a desire for money. She repeatedly came back to the point that Mrs Howarth's wishes were different from those of her family, rather than recognising that the matters about which they had complained were exacerbated by poor record keeping and were reflected in practice with respect to other residents when Hilary Stevenson investigated. She complained about a series of action plans being created, rather than taking on board the action points identified. In fact, Rose Magowan produced an action plan on tissue viability in November 2003 and this was updated by Hilary Stevenson in February 2004, at which time a further more general plan was also produced. The other documents e.g. the reports by Isobel Prat and Irene Wild were not action plans, they were a record of the areas of concern identified by these individuals. The Appellant does not appear to have reflected upon the fact that other deputies and home managers had these concerns about the practices in her home.
- The Appellant has put forward a number of character witnesses. As to these Ms Davies said:
- While clearly the Appellant has the support of a number of individuals she has worked with over the course of her career, it is not clear to what extent they are objectively appraised of the detail of what took place at Ashby House and the misconduct the Appellant is said to have committed. None of them really grapples with the heart of the matter – the Appellant's management of Ashby House and the allegations of misconduct against her in that regard. It is submitted that none of these "references" is sufficient to outweigh the serious concern about the Appellant's suitability that must inevitably follow a finding that she committed these acts of misconduct.
- The Secretary of State takes the view that if the Appellant were to be placed in an equivalent position – i.e. managing a care home – involving children rather than vulnerable adults, the same concerns about her suitability would apply. As already noted, there is no facility for a "partial" listing. For this reason, it is submitted that she is also unsuitable to work with children.
- We heard nothing from JF to say that she had accepted that her management had shortcomings or that she had learnt lessons from what had occurred or that she had undertaken any further training to address the issues raised by the Secretary of State. We are satisfied that there was a generic failure on the part of JF to manage the home. She did not appear to understand that she needed to supervise, monitor and assess the needs of the residents. We believe that this would be no different if JF was to work with children.
- Because of JF's career path she had no role models as a care home manager. She had no one to learn from as she worked her way up and although we acknowledge that she may have managed in other environments they are very different from care homes with an EMI and EF unit.
- We return to the theme running though this decision – that JF went from the prison service to running a 24 bed facility without any management experience and then went to Ashby House, a 60 bed home. We cannot be certain but given that the 24 bed home was a joint venture with the local authority it may be that there were structures in place so that JF's weakness in management was not obvious. Even if we are wrong in that moving to manage a 60 bed home is not the same task only bigger. It becomes necessary for a less hands-on approach to management and more a need to manage managers. That is where the triple tasks of supervising, monitoring and assessing become important.
- When asked what she had learnt from the process, JF replied that she would check her deputies (heads of unit) if in that position again. Sadly she did not understand that the need was for her to take more responsibility. This lack of insight leads us to conclude that we have seen and heard nothing to suggest that JF understands the weaknesses in her management abilities and so we have come to the conclusion that JF is unsuitable to work with both adults and children.
- An idea of the approach that was taken in the home was perhaps best summarised by Linda Vagg (JF's deputy) when she gave evidence. When asked how she would cope with problems she replied, "breathe deeply and everything will be ok." If only it was as easy as that.
JF
-v-
SECRETARY OF STATE
[2008] 1276.PVA /1277.PC
Before:
Mr. Simon Oliver
(Deputy Principal Judge)
Mrs. Geraldine Matthison
Mr. Graham Harper
Decision
Heard on 6th to 11th February 2009 and 9th March 2009 at Care Standards Tribunal, 18 Pocock Street, London SE1 OBW.
Representation
The Appellant appeared in person and was assisted by her husband.
The Respondent was represented by Ms Sarah-Jane Davies of Counsel, instructed by the Treasury Solicitor.
Appeal
The Law
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 (a child) or placed (a child) at risk of harm (a vulnerable adult); and
(b) that the individual is unsuitable to work with (children) (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.
8. Where an adult has been included on the POVA List, that adult may at any time after 10 years apply to the Tribunal to be removed from it: sections 4A and 4B of the 1999 Act and section 88(4) of the 2000 Act. Inclusion in the List does not prevent the listed person from securing any other form of employment. The List is not a public document. The List is not punitive. It is not disciplinary. Still less is it intended to shame or stigmatise a person. The objective of the List is to lessen the risk of harm to vulnerable adults from those working or having extended contact with them. It secures that objective by preventing a person who has been guilty of misconduct that harmed a vulnerable adult, or risked the same, and who is unsuitable to work with vulnerable adult, from being in a position having extended, unsupervised contact with vulnerable adults.
a. Was the Appellant guilty of misconduct ("Misconduct")?
b. Did that misconduct harm a vulnerable adult or place a vulnerable adult at risk of harm ("Harm")?
c. If so, is the Appellant unsuitable to work with vulnerable adults ("Suitability: vulnerable adults")?
d. Is she unsuitable to work with children ("Suitability: children)?
…
In principle, a single act of negligence could constitute misconduct (per Webster J in R v Pharmaceutical Society of Great Britain ex p Sokoh (1986) The Times 4th December) but 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.
In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v General Dental Council [1987] 3 All ER 843).
It is not helpful to attempt to further refine "misconduct" by reference to any adjective having moral overtones. The word "misconduct" does not necessarily connote moral censure. An individual can be "guilty of misconduct" without being, for example, dishonest or disgraceful.
An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct. If the requirement to act properly or in accordance with a code was merely rendered more difficult by the acts or omissions of others or by the prevailing circumstances, there can still be a finding of misconduct. Mitigation of an offence is always possible and, where the circumstances are such that the individual guilty of misconduct was overworked, short of time and/or unsupported it may be possible to excuse his or her misconduct. However, misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult.
"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 its widest possible context. It may well be, as the Tribunal has said before (e.g. BR [2003] 205 PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way the Education Act 2002 does. 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 Background
18. In 1994 JF left the prison service and went to work as a home manager of a care home. It was a 24-bedded Elderly Mental Ill ("EMI") home. JF later moved to manage another 24-bedded EMI home within the same group, Craegmoor Healthcare.
Regulatory Framework
a. a duty to ensure that Ashby House was conducted so as to promote and make proper provision for the health and welfare of service users and to make proper provision for their care and, where appropriate, treatment, education and supervision: regulation 12;
b. a duty to prepare a written plan as to how each service user's needs in respect of his health and welfare were to be met, to keep that plan under review and to revise the plan where appropriate: regulation 15;
c. duties to maintain a record including specified information and documents in respect of each service user, to maintain other specified records in Ashby House and to keep all of those records up to date: regulation 17 and schedules 3 and 4;
d. duties to ensure, having regard to the size of Ashby House, its statement of purpose and the number and needs of its service users, that at all times suitably qualified, competent and experienced persons were working at Ashby House in such numbers as were appropriate for the health and welfare of service users; that they received training appropriate to the work they were to perform and that they were appropriately supervised: regulation 18;
e. a duty only to employ to work at Ashby House persons who were fit to do so (meaning, among other things, that they were of integrity and good character, had the qualifications suitable to the work they were to perform and had the skills and experience necessary for such work) and in respect of whom she had obtained specified information including proof of identity and two written references: regulation 19 and schedule 2.
a. the service users' plans, which, among other things, should set out in detail the action to be taken to ensure that all aspects of health, personal and social care needs are met and should be reviewed by care staff in the home at least once a month, updated to reflect changing needs and current objectives and actioned: standard 7;
b. service users' health care needs, which calls, among other things, for an assessment by a trained person to identify those who have developed or are at risk of developing pressure sores; for appropriate intervention in such cases to be recorded in the plan of care; for the incidence of pressure sores, their treatment and outcome to be recorded in care plans and reviewed on a continuing basis; and for nutritional screening to be undertaken on admission and subsequently on a periodic basis, a record maintained of nutrition, including weight gain or loss, and appropriate action taken: standard 8;
c. staff complement, which, among other things, requires that staffing numbers and skill mix are appropriate to the assessed needs of the service users, the size, layout and purpose of the home at all times: standard 27; and
d. recruitment, which requires the registered person to operate a thorough recruitment procedure based on equal opportunities and ensuring the protection of service users; the obtaining of two written references before appointing a member of staff; and the exploration of any gaps in employment record: standard 29.
The Particulars of Misconduct
Failure adequately to monitor, supervise and/or provide training to staff members in their administration of care and/or to document these matters.
Failure to ensure adequate and proper staffing was in place for the Home in particular:
a) Failure to ensure that at least one staff member in the EMI Unit was a qualified Registered Mental Nurse registered in the UK
b) Failure to ensure that the EMI Head of Unit was adequately skilled and trained in the provision of care to elderly mentally ill persons; and
c) Failure to take reasonable steps to ensure that there were working at all times a sufficient number of staff with the appropriate range of skills to meet the residents' needs
Failure properly to check job references for staff members working at the Home or to ensure that they were satisfactory, including:
a) Failure to take up references at all; and
b) Reliance upon references provided by family members of members of staff
Failure to keep adequate care profiles for residents of the Home or to ensure that such profiles were kept, including:
a) Failure to provide adequate training to staff members about the use of care profiles;
b) Failure to monitor the use of care profiles;
c) Failure adequately to review residents' care profiles and to evaluate their progress and update their care profiles as appropriate or to ensure that this was done
Failure to provide adequate wound care or to ensure that this was done, including:
a) Failure to take reasonable steps to prevent residents from sustaining wounds or pressure sores or to ensure that such steps were taken;
b) Failure to ensure that staff were properly trained in wound care was provided;
c) Failure to have residents' wounds or pressure sores checked by specialist tissue viability nurse when appropriate;
d) Failure properly to monitor, document and audit residents' wounds or pressure sores or to ensure that they were so monitored, documented and audited.
Failure properly to monitor residents' weight or to ensure that this was done, including:
a) Failure to take reasonable steps including the carrying out of nutritional assessments where appropriate where appropriate to prevent residents from losing weight or to ensure that such steps were taken;
b) Failure properly to monitor and review residents' weight or to ensure that it was properly monitored and reviewed
As a result of the above:
a) Failure to provide adequate care for residents of the Home or to ensure that adequate care was provided for them to meet their health, personal and social care needs; and/or
b) Neglecting residents
First particular of misconduct
Secretary of State's case
a. The matter was repeatedly raised by NCSC inspection teams but the Appellant did not address it: see the NCSC Inspection Reports of January 2003; March 2003; September 2003 and March 2004
b. When pressed in cross-examination, the Appellant accepted that the training needs assessment required by the Inspectorate in September 2003 had not been carried out by March 2004. She maintained that it had been started. Certainly at Hilary Stevenson's visit on 18th February 2004 she identified an immediate need for proactive assessment of training needs of staff.
c. Rose Magowan raised issues of Dementia Care training, accountability and record-keeping. This should have been identified by the Appellant.
d. Despite the fact that there were real concerns about tissue viability issues and that matters had been ongoing since at least July, Rose Magowan identified that by December, still nothing had been done in regard to staff training. That remained the case by the time of Hilary Stevenson's visit on 18th February 2004. This is an area where there were real concerns that were flagged up for the Appellant on more than one occasion, including the dreadful pressure sores photographed and shown to the Appellant by the Tissue Viability Nurse in September 2003, and yet she failed to take any steps to put in place an urgent and immediate programme to ensure that all staff were properly trained in wound management.
e. Irene Wild's reports indicate that she found there was no training or supervised practice for existing staff.
f. Isobel Prat's report.
JF's case
41. JF's evidence to us was that there was a training computer in each Westminster Home for which she had the password. JF told us that a printout should be available to demonstrate the hours of training for each staff member. On induction, staff would be logged on to the training computer, this was also the case for the Student Nurses from Northampton University, to whom she had personally demonstrated the use of the computer as a learning facility.
42. JF told us that she was aware that the second year student had used this facility extensively as together they looked at some of the research available on it. JF said that she had also been overseeing the NVQ candidates herself as part of her commitment to the staff and as one of the carers was undertaking level 3 NVQ and needed a qualified and experienced assessor. Mohammad Zahid was undertaking the NVQ assessors' award. The training files were kept on the nurses' station on each unit, although the data from these files was being transferred onto the Team track system on the administrator's computer.
43. JF said in evidence that Rose Magowan carried out training on Documentation and Accountability, although she could not remember the dates. We were told by JF that wound care training was carried out on 2nd and 10th March 2004 and use of pressure mattresses on 11th March 2004. JF told us that all this information should still be available as there is an obligation to retain it.
Our findings on the particulars
46. In relation to Particular 1, we accept that some training took place and that there are records (in the form of logs) to show who did what and when they did it. However, that is, as far as we are concerned, not enough. In order to ensure that staff are properly trained it is necessary to know what training is required and who needs to be trained. The way to do this is to check on the residents most at risk and see if their care suggests that the staff need training. The tissue viability training is a clear example of where being aware of the state of the resident's pressure sore would have made it very clear that there was an urgent need for some training to be put in place.
Our conclusions
49. We are not certain if the fact that there were a variety of nationalities in the home meant that communication between staff was difficult but if it was (which would have been picked up by monitoring) it would have raised a training need. Likewise, JF's failure to monitor any care profile document led to a failure to identify training needs.
51. In terms of the first particular of misconduct, we come to the conclusion that it was proved. We had no confidence in JF to monitor and supervise staff or to review the needs of service users and the skills and experience of staff or to identify areas were training was required and to implement such training. We contrast our conclusions in relation to JF with our view that we had confidence in both Irene Wild and Isobel Prat. They clearly knew what to do when they went into the home (as evidenced by their reports) and this can only have been as a result of a thorough understanding of what is required in a management role. JF thought that it was the responsibility of the Unit heads to supervise. It was not, it was hers. That was known by the other two when they went in and led to the suspension of Zahir by Irene Wild. We conclude that there was an endemic inability between JF and the unit heads to understand what was required to care properly for the residents. We put this down to the fact that JF could not cope with the change from a 24 bed to 60 bed facility and the different approach that was required. This led to her being submerged and swamped in her role and therefore unable to fulfil it effectively. As will be seen, we have come to the conclusion that many, if not all, of these particulars of misconduct are interlinked and all stem from what we conclude is JF's lack of management expertise.
Second particular of misconduct
Secretary of State's case
JF's case
Our findings on the particulars
60. We are not convinced that there was a regulatory requirement for an RMN to be on the Unit although it would clearly be good practice to do so. We accept that it was difficult to recruit and retain RMNs given the psychiatric unit next door was paying a higher salary. Of course, JF is a RMN so there was one on the premises when she was on duty.
Our conclusions
64. We are not satisfied that the EMI Head of Unit was adequately skilled to meet the needs of the residents in that unit. It should have been apparent to JF very quickly whether or not the Head of Unit was up to the job by talking to the residents and staff to find out what was wrong with them (such as the resident with pressure sore) but again there was a lack of monitoring and supervision.
65. We have come to the conclusion that this ground of misconduct is also proved and, again, it comes back to JF's lack of management skills. Had JF spent time on the Unit she would have picked up straight away (as Ms Wild and Ms Prat did) that Zahid was not suitably qualified to run it as he was not adequately skilled or trained.
Third particular of misconduct
Secretary of State's case:
JF's case
Our findings on this particular
Our conclusions
80. There was a very clear company policy and JF did not follow it. This lead to unqualified and unsuitable staff being employed in positions they were not suited to and could have put residents at risk. We find this particular proved.
Fourth particular of misconduct
Secretary of State's case
81. Apart from good professional practice, it was again a statutory responsibility of the Appellant to prepare a written plan as to how each service user's needs in respect of his health and welfare were to be met, to keep that plan under review and to revise the plan where appropriate. She was obliged to keep specified information in respect of each service user.
JF's case
Our findings on this particular
Our conclusions
Fifth particular of misconduct
Secretary of State's case
a. Hilary Stevenson's February 2004 update of Rose Magowan's action plan where not one item of the action plan had been satisfactorily completed.
b. Isobel Prat's report and evidence including:
"… I can categorically state that I wouldn't expect a single one of the residents I am responsible for to have pressure sores on their ear, because I would have made sure that I had looked after them. The fact that she had a pressure sore on her ear was an indication to me that she had not been turned regularly."
"I also felt that there was a pressure sore issue at Ashby House and I asked if I could involve the tissue viability specialist in respect of pressure sores. The Appellant asked me not to. I recall the Appellant saying words to the effect of "they just cause trouble."
c. Irene Wild's evidence including:
"… When [the lady's wounds] were exposed, I saw that they were severe, Grade 4, almost necrotic, dirty and very smelly. … The lady's skin healed well within 3 months, even before I left. She had very good skin. The reason that she developed pressure sores, therefore, was through a lack of care and being confined to bed with little or no turning on to alternate sides, and I can distinctly remember asking for her turning chart, and there wasn't any."
JF's case
Our findings on this particular
Our conclusions
Sixth particular of misconduct
Secretary of State's case
JF's case
117. JF said that monthly weighings were carried out on the residents, as was noted in Isobel Prat's General Observations of March 8-17 stating that "this was despite residents being weighed monthly.' JF was clear that the Nutritional assessments were being carried out.
Our findings on this particular
Our conclusions
Seventh Particular of misconduct
Secretary of State's case
JF's case
Our findings on the matters
Our conclusions
UNSUITABILITY: VULNERABLE ADULTS
a. It is accepted that the Appellant has a lengthy career in nursing.
b. Rita Cunningham, when working for WHC, was responsible for a different geographical area from that in which Ashby House was located. She did not have first hand knowledge of what was happening at Ashby House. Although she attended the home to carry out an investigation in late 2003, she was interviewing staff not inspecting the home or its documentation. She cannot have the objective and detailed understanding of the Appellant's misconduct that the Tribunal has, after hearing the evidence and seeing the documents.
c. Patricia Goode was not a trained nurse or healthcare professional. She was responsible for administration within Ashby House, not for the quality of care delivered.
d. Vivienne Manning has not worked with the Appellant since 1991. She worked with her in an entirely different environment and has no knowledge of what took place at Ashby House.
e. Linda Vagg has no knowledge of what took place at Ashby House since she left in about July 2002.
UNSUITABILITY: CHILDREN
CONCLUSION
Our conclusions as to suitability with adults and children
Accordingly, our decision is:
APPEAL DISMISSED.
Mr. Simon Oliver
(Deputy Principal Judge)
Mrs. Geraldine Matthison
Mr. Graham Harper
Date: 13th July 2009