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

Wendy Ann Blackman v Secretary of State [2009] UKFTT 21 (HESC) (17 March 2009)
Schedule 5 cases: Protection of Vulnerable Adults list
Inclusion on PoVA list

In the First-Tier Tribunal (Health, Education and Social Care)
Between WENDY-ANN BLACKMAN and SECRETARY OF STATE FOR HEALTH
[2008] 1377.PVA [2008] 1376.PC
Before Maureen Roberts (Nominated Tribunal Judge) Sallie Prewett (Specialist member) David Cook (Specialist member)

Heard on 2^nd and 3^rd March 2009 at Bristol Magistrates Court, Bristol.

Ms J Russell-Mitra of Counsel appeared on behalf of the Appellant. The Appellant gave evidence.

Ms S J Davies of Counsel appeared for the Respondent, instructed by Ms C Sutton, Treasury Solicitor. Ms D Matson, Manager, Connect Care, a domiciliary Care Agency and Ms D Howe, now a Community Support worker, at the time of the incident Acting Manager of Almondsbury Resource and Activity Centre, gave evidence for the Respondent.

Decision

1. The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 18 March 2008 (the decision letter); firstly (the first appeal) to confirm her on the Protection of Vulnerable Adults List (the PoVA List) and secondly (the second appeal) to confirm her on the Protection of Children Act List (the PoCA List).
2. The decision letter also notified the Appellant that the effect of inclusion on the PoCA list also meant that the Appellant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that her name had been added to the Education Act List.
3. The Tribunal makes a restricted reporting order under Rule 14(1)(b) of the Tribunal Rules, restricting the reporting of the names of clients involved in the case and directing that reference to them shall be by their initials so as to protect their private lives.

The Law

4. The first appeal (the PoVA appeal) is brought under section 86(3) of the Care Standards Act 2000 (CSA 2000) which states:

"if on an appeal or determination under this section the tribunal is not satisfied of either of the following namely:

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

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

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

5. The second appeal (the PoCA appeal) is brought under section 4(3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86(3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4(3) of POCA 1999 with unsuitability to work with children.
6. In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We noted the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2006] 4 All ER 194. In that case Richards LJ said, "Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities." We followed this guidance.

Facts

7. The Appellant was employed as a live-in carer by Connect Care Limited, from 24^th April 2006 until her dismissal on 19th January 2007. The agency provides a domiciliary care service specialising in providing live-in carers for a wide variety of clients.
8. On the 17^th November 2007 the Appellant was at work living –in with two residents (JH and CH) both with Downs syndrome. In the morning, one of the clients became disturbed while carrying out a domestic chore and hit the Appellant in the face. The Appellant responded by hitting the client, JH back, on the back. Later on the 17th November 2006 when the agency was at the house arranging for the Appellant to be relieved from her duties the other client CH said that the Appellant had left the two clients alone, one evening for an hour when she went to a meeting. This had happened on the 14^th November 2006.
9. The matters were referred to the Adult Protection Unit of the local authority and were investigated by the Police. No further action was taken by these agencies. Connect Care Limited had reports from the agencies and investigated the matters. There were two meetings with the Appellant, one on the 26 January 2007 after which the Appellant was dismissed and then an appeal on the 10 February 2007 when the dismissal was upheld. The employer took the view that there had been two instances of gross misconduct which justified dismissal. The matter was referred to the PoVA authority.

Background Facts and Evidence to the Tribunal

10. Ms Matson told the Tribunal that before starting work with Connect Care, the Appellant was given a copy of the Connect Care staff handbook and a statement and terms of employment, which the Appellant was required to read. We saw these documents. It is fair to say that that Appellant indicated that she had not read them all the way through.
11. We noted that the Staff handbook gave guidance on certain issues.

a. Under 'Notes for carers', 'It is a disciplinary offence to leave a client unattended'. This was in the context of staff changeover.

b. Para 4.17 'Behaviour at work' 'Employees will behave with dignity and with civility towards their fellow staff members, and to clients.. '

c. Paras 6.8.and 6.9 provided for authorised absences which should be discussed with a supervisor or manager. Any other absences were unauthorised.

d. Para 8.11 referred to the abuse policy. It stated 'Zero tolerance of abuse is the only philosophy consistent with protecting people'. Physical abuse is any physical contact, which harms or is likely to cause them unnecessary and avoidable pain and distress.'

e. Gross misconduct ( para 7.4) included 'fighting, physical assault or dangerous horseplay' and 'Abandoning duties without permission or reasonable excuse'.

12. On 23^rd March 2006, immediately after her interview for the job, the Appellant met with Alison Fenton, Connect Care's Supervisor and Training Officer, who undertook the Appellant's training needs analysis. The Training Programme included the TOPSS Induction and Foundation Standards. TOPSS is the Training Organisation for Personal Social Services (now known as Skills for Care) and is a nationally recognised training scheme for care workers.
13. All training courses are delivered via a workbook and DVD. At the end of each unit there is a written test which is marked by Alison Fenton, who follows up with the carer if there are any problems. The Appellant undertook Units 1 and 2 of the TOPSS Induction alongside Ms Fenton in the office on the day of her interview, and completed the TOPSS Induction Standards training on 4^th April 2006. She went on to successfully complete the TOPSS Foundation Standards and Connect Care's Training programme within the first six months of her employment by Connect Care. We saw the certificates of completion of the various courses.
14. The Appellant's training included a number of units that were relevant to dealing with challenging behaviour including: understanding the experiences and needs of individuals; constraints and conflicts; and recognising and responding to abuse and neglect.
15. Ms Matson said that the Appellant was very good in training and scored 100% in the detection and prevention of abuse test. She produced the result of that paper. The Appellant indicates, in her answer to question one, her understanding that it is the responsibility of the carer to maintain appropriate boundaries within the relationship at all times.
16. Connect Care carers receive supervision every 12 weeks. The Appellant's first supervision in July 2006 took the form of an appraisal discussion. A second supervision took place on 25^th October 2006 and covered the contents of the 'red folder'. This is the client care book, which is kept on a client's premises and which includes the care plan and risk assessment for the client. The supervision was satisfactory.
17. Before Connect Care send a carer to any potential client, Connect Care contacts the carer by telephone to discuss the client's needs, arrangements for time off and other matters covered by the Connect Care client assessment sheets. We saw these sheets which gave a detailed assessment of this client's situation and needs.
18. The Appellant's first placement with Connect Care started on 25^th April 2006. She went on to complete 17 one-week placements through Connect Care. These included four weeks as a live-in carer for clients JH and CH from 5^th September 2006 to 3^rd October 2006. The Appellant started a further week as a live-in carer for them on 14^th November 2006, during which the incidents giving rise to these proceedings took place.
19. JH and CH are sisters who both have learning difficulties. CH is also profoundly deaf. Since 2002 they have lived together in supported accommodation. They are supported by carers throughout the day and night. Connect Care was contracted by South Gloucestershire Social Services to provide those carers. The Adult Care – Assessment of Need and Care Plan drawn up by South Gloucestershire Community Care Department for JH and CH formed the basis of the contract between Connect Care and South Gloucestershire Social Services and Connect Care has the Support Plans for JH and CH.
20. JH's care plan dated 23^rd June 2005 indicated that she required verbal prompts and reminders to maintain appropriate standards of personal care, and that she needed advice and supervision with daily living. She was able to make light snacks and hot drinks independently, but required supervision and guidance in food preparation and cooking. Outside the home environment JH required support and supervision to ensure her safety and well-being. She did not have the skills and confidence to use public transport. She required support to develop these skills and confidence, to enable her to attend the Siblands Resource and Activity Centre ("RAC") and to use appropriate resources. JH could read and write but required assistance with correspondence and forms. JH needed to learn how to recognise hazardous situations and remove herself from these if necessary. JH needed support with regard to appropriate behaviour, as her friendliness, especially towards men, meant that she was vulnerable. JH's daily routine indicates that between 9.00 am and 3.00 pm she would attend the RAC, and in the evening would go to a sport or drama group or outing. One of the Appellant's jobs was to walk her to the RAC each morning.
21. CH's care plan, dated 23^rd June 2005, indicated that CH required advice and supervision with personal care; and advice, supervision or support with various aspects of daily living, including supervision to ensure that she does not put herself at risk in the kitchen area, and support with cooking main meals. CH needed advice to ensure her safety within the home, for example, locking of doors, closing of windows and not allowing strangers in. CH required advice and support in relation to managing money and in order to access the bank. CH needed carers to be available to summon help for her and take appropriate action if necessary. Outside the home environment CH required supervision when going out, to ensure her safety and well-being. CH attended Almondsbury Resource and Activity Centre ("Almondsbury RAC") on a daily basis. CH's weekly routine document indicates that CH was picked up from the house at 9.00 am and dropped off at 3.45 pm every week day to attend the RAC. On Wednesday evening CH would attend a drama group, and on Thursdays she would be taken out for an outing.
22. As a live-in carer the Appellant's responsibilities were to provide support in relation to JH and CH's learning difficulties, and personal care for CH. Before starting work with JH and CH, the Appellant would have been contacted by Connect Care to go through their assessment sheets. JH's and CH's assessment sheets both indicate that time off for the carer would be whilst JH and CH were at their day centres. Time off for the carer would be for approximately 3 hours per day Monday to Friday.
23. At the beginning of a placement the outgoing carer hands over to the incoming carer. All written documentation regarding a client's care is held at the client's home in the red folder, and the incoming carer is expected to read this. The folder includes the client's care plan and support plan and daily log. The importance of this documentation is and was covered in training, including in the supervision on 25^th October 2006.
24. Deborah Howes told the Tribunal that on 17^th November 2006 she was present at a person-centred planning meeting ("PCP") in respect of CH. This is a bi-annual meeting that focuses on a service user's wants and needs. The date for a PCP meeting is set in advance by the service user, in conjunction with his or her key worker. Her role at the meeting was to observe and to take notes. The other participants in the meeting were WP, a friend of CH, and the Appellant. She had not previously met the Appellant who was attending at very short notice in the absence of CH's mother.
25. In the course of the meeting, they were talking about JH and her relationship with CH. The Appellant then commented on how "bossy" JH was, and she went on to describe a recent incident in which she had hit JH. The words she used were recorded by Ms Howes in the general report sheet that she completed after the meeting. We saw a copy of that report. Ms Howes considered that it represented an accurate record of the disclosure made by the Appellant and the circumstances in which it was made.
26. Ms Howes said that the impression the Appellant gave in recounting the incident was that she thought JH deserved to be hit because JH had hit her first. The Appellant did not give any indication in her recounting of the incident that she was conscious that she had done anything wrong.
27. Further the Appellant did not seem upset by the incident or indicate any remorse for hitting JH. By the Appellant's own account, her response when JH screamed and told her that she was going to phone her mum was that JH should 'make sure you tell her that you hit me first'.
28. Ms Howes reported the matter to the duty desk of Social Services and to her manager. They contacted Connect Care.
29. As a result of what had been reported to her Ms Matson went to the home of JH and CH on the 17^th November 2006 and suspended the Appellant. She arrived at the house at about 5-15pm. She told the Appellant that she needed to replace her immediately following the incident that had occurred that morning. Ms Matson said that she could not discuss the matter but the Appellant told her what had happened. While she was there waiting for the replacement carer CH told her that the Appellant had gone out and left them alone. JH confirmed this and when Ms Matson asked the Appellant who had given permission for the absence the Appellant shrugged her shoulders. Ms Matson reassured CH that this would not happen again as she felt CH was distressed about being left.
30. Ms Matson said that, later at about 7-00pm, as she drove the Appellant to the station she told her that it was a very serious matter. She said the Appellant attempted to defend herself by saying that J had hit her first. Mrs Matson told her she should have removed herself from the situation. Knowing that the Appellant came from a child care background she asked what she would do if a child had hit her to which she responded by saying 'that she would hit back in certain circumstances' . The substantive matter was reported to Gloucestershire Social Services who in turn reported it to the Police.
31. The outside investigations were completed by 24^th January 2007. Connect Care arranged a meeting with the Appellant, which took place on Friday 26^th January 2007 and which was attended by Ms Matson, the Appellant and a companion of hers. We saw a record of this meeting.
32. At that meeting the Appellant repeated her account of the hitting incident, and Ms Matson explained to her why her response to JH's action had been inappropriate. The Appellant did not respond to this, although her companion responded that the action had been a 'tap' rather than a 'hit'. The Appellant's companion went on to make various other comments on the incident, recorded in Ms Matson's report, including that the Appellant's action was a reflex action. The Appellant did not make any further comment in relation to the incident. At the meeting, Ms Matson attempted to address the issue of the Appellant leaving JH and CH unattended, but she made no response and left the meeting in apparent distress.
33. On 31 January 2007 Ms Matson wrote a detailed letter to the Appellant which covered the investigation of the incident and the disciplinary proceedings and confirmed the dismissal of the Appellant on the grounds of gross misconduct. The Appellant appealed the dismissal for gross misconduct by letter dated 30^th January 2007.
34. An appeal meting took place on 10 February 2007 attended by Christine Williams, Connect Care's Managing Director, Ms Matson, the Appellant and a companion of hers. The outcome of the appeal meeting was that the dismissal for gross misconduct would stand. This was recorded by Christine Williams (managing director) in a letter to the Appellant dated 12^th February 2007.
35. The Appellant told us that prior to her work with Connect Care she had been employed in various positions. From 1^st March 1998 to 31^st August 2005 she was employed as a child minder and housekeeper for the S family, who had four children, aged 1, 3, 7 and 9 years old. She travelled with the family from Trinidad to the UK in 2002. From 1^st September 2005 to 1^st April 2006 she cared full time for MH in his own home. He had Autonomic Dysreflexia. She also worked on a voluntary basis, one morning a week, for the Blind Welfare Association from 2002 to 2005.
36. She worked with several different clients during her employment with Connect Care. This included MH, whom she had worked with previously. Her other clients were JE, who had an ageing condition which left her unable to do things by herself; L, who had brain damage; JP, who had Multiple Sclerosis; and C and J H, both of whom had Down's Syndrome. CH was also profoundly deaf.
37. She started working for C and JH in September 2006. She worked for them for about a month and a half in total. Her duties included supervision, ensuring they tidied the house and looked after themselves, making sure they got to classes and that they did their shopping. They were both quite independent and did their own washing up, tidied the house, got their own breakfast and lunch and looked after their personal hygiene. Both clients attended a day centre from 9-00am until mid afternoon.
38. On 14^th November 2006 at 7.00 pm the Appellant left C and J on their own, to go to a church meeting. She knew this was against the terms and conditions of her contract but they were both happy to be left on their own, as she had given them their dinner and they wanted to watch TV for the next four hours. She told them where she was going and gave them her contact number in case of an emergency. She was away for an hour.
39. On 17^th November 2006, J was washing up the dishes and cups, but she was not doing it properly. The Appellant approached her and tried to tell her what she was doing wrong and how to do it correctly. J ignored her and carried on, so she approached her again to ask her to rinse the cup, at which point J started swearing at her. The Appellant asked J not to swear at her. She said, "Don't swear at me, as I'm not swearing at you. I don't ever swear at you." J swore at her again so she repeated her request for her not to swear at her. At this point J turned around and slapped her in the face. As an automatic reflex, the Appellant hit her with the palm of her hand, on her left shoulder. J then sat down on the kitchen floor and screamed.
40. J eventually got up and told the Appellant she was going to phone her mother and tell her what the Appellant had done. The Appellant said 'if you tell her make sure you tell her that you hit me first'. J then went to her day centre as normal.
41. On the same day, at short notice the Appellant was asked to attend a meeting in relation to J's sister, C, at her day centre. She brought up what had happened between her and J, as an example of J's bossiness and demeanour. The staff at the meeting were concerned by what she had said and they contacted her manager, Deborah Matson. The Appellant said that she had never tried to hide what had happened and she reported the incident in accordance with the terms and conditions of her contract, always telling the truth.
42. The Appellant was asked about her remark that she might hit a child back. She explained to the tribunal that this would only be in extreme circumstances when for example a child or young person was attacking her with a weapon.

Notification to PoVA

43. The matter was reported by Connect Care Limited to PoVA. The PoVA letter of its decision stated:

"a) Your former employer reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by physically abusing a client by hitting her on the back; and

b) that you are considered unsuitable to work with vulnerable adults because you believed that physical retaliation towards a vulnerable service user was an acceptable form of control, and your lack of remorse indicated a lack of sensitivity and understanding of the gravity of the situation.

Consequently having considered all of the information available he has decided to confirm your inclusion on the PoVA list."

Misconduct

44. In Angella Mairs [2004] 269 PC the Tribunal set out a number of principles that we have adopted, namely:

it is not necessary to establish misconduct is either serious or gross

a single act of negligence could constitute misconduct, but in most cases 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 what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling."

misconduct can arise out of acts of commission or omission and is a term that does not necessarily connote moral censure: an individual can be 'guilty of misconduct' without being, for example, dishonest or disgraceful.

45. By virtue of s.121, 'harm' means ill treatment or impairment of health to a vulnerable adult or to a child. All the links in the chain of causation between the misconduct and the harm or potential harm to a vulnerable adult must be intact before there can be a finding that an individual was guilty of misconduct resulting in harm or the risk of it.
46. Once misconduct has been established, the second consideration is whether the Appellant is unsuitable to work with vulnerable adults or with children. Not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children. Each case must be looked at on its own fact, context is very important and, as stated in Mairs, the judgement "will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgement will inevitably be, at least in part, by way of education from past performances, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm."
47. This requires consideration of at least, and not exclusively, the following matters:

a) the number of incidents constituting the misconduct established;

b) the gravity of that misconduct;

c) the time that has elapsed since that misconduct;

d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had potential to harm;

e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and

f) extenuating circumstances surrounding the misconduct.

It also requires an assessment of risk.

48. The test of suitability is not an evidential test in itself, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously. Moreover, the Tribunal must consider unsuitability as at the date of the hearing before it.

Findings and conclusions

49. We accept that the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult. There were two instances of misconduct: the striking of JH and leaving the clients unattended.
50. The issue that we have to address is one of 'suitability'. On this matter we were addressed by both sides on the headings as outlined in paragraph 46 above and made the following findings

a. there are two instances of misconduct, both of which are admitted.

b. both were serious breaches of the policy of the employer as stated in their handbook.

c. Both acts of misconduct were recent.

d. The Appellant was remorseful to the tribunal and in her witness statement but we accept the evidence that at the time she had not expressed remorse or regret at what had happened. She did not take the necessary steps to report the incident on the 17 November 2006 immediately to her manager or to the management of the RAC to whom she was handing over immediate care of JH following a major emotional upset.

e. It was put to us that the Appellant had not taken any steps to ensure there was no repetition of the actions. In fairness to her she has got another job and produced an excellent reference from that employer. She has not been employed in a care setting since her dismissal from Connect Care.

f. there are extenuating circumstances in that although the Appellant had received training and worked before for these two clients she did not have the full picture of their vulnerability. Further as a live-in carer for two residents she was under greater pressure than a carer calling during the day. With hindsight possibly she should have had more support in her role.

51. We accept the evidence the Appellant showed no remorse at the time of the incident and did not apologise to JH. She did not report it. We find that she could and should have done so.
52. We find that the Appellant shows a lack of understanding of vulnerable clients, dealing with and prioritising their needs. It was evident that she was unable to see the situation from JH's point of view. JH was a vulnerable adult with unpredictable emotions.
53. We were concerned that the Appellant had left two vulnerable clients alone for an hour one evening. The incident came to light because one of the clients reported it. It illustrates the Appellant's lack of understanding of the clients vulnerability that she put them at risk of harm and failed to comply with Connect Care's policies. We accept that the fact that CH reported it was an indication that she was upset at being left alone.
54. Having said that, we are concerned that Connect Care Limited put her into a live-in situation with two young vulnerable adults with insufficient information about their circumstances. Nothing can excuse the Appellant's action in hitting JH who was clearly distraught and upset. She should have defused the situation. The living-in nature of her work accentuated the difficulties of the situation.
55. Having heard the Appellant we accept she is a caring person who, for example, was very attached to the four children she looked after, but she struggled to act in a professional way with two vulnerable adults and to keep a professional relationship with them.
56. The Appellant had clearly completed all the necessary training but failed to put it into practice. She lacked the underlying understanding of the purpose of the training. Her response to JH after the incident was of concern – as essentially she said, "If you tell your mother about it then make sure you tell her you hit me first." This reaction was inappropriate and an abuse of her position and power.
57. It is not inevitable that if the appeal is dismissed under section 86 of the CSA 2000 an appeal under PoCA 1999 section 4 must also be dismissed. We note the issue of public confidence where a person is confirmed on the PoVA List and consideration is then given to their inclusion on the PoCA list. In this case there was an incident of physical abuse against a client and the Appellant spoke of circumstances when it might be appropriate to hit a child. Taking into account the evidence and the confirmation of the Appellant's name on the PoVA list, the Tribunal considers the Appellant is also unsuitable to work with children.
58. In all the circumstances we find that the listings should remain and the appeals are dismissed.

Maureen Roberts

(Nominated First-Tier Tribunal Judge)

Sallie Prewett

(Specialist Member)

David Cook

(Specialist Member)

Date: 17th March 2009