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

 

 

 

FIRST TIER TRIBUNAL

(HEALTH EDUCATION AND SOCIAL CARE) CHAMBER

(2009)1637.PVA

(2009) 1638.PC

 

 

MARK BRIAN JOHNSON

Appellant

 

-v-

 

 

 THE SECRETARY OF STATE FOR HEALTH

and

THE SECRETARY OF STATE FOR CHILDREN

SCHOOLS AND FAMILIES

Respondent

 

Before:

 

Helen Clarke (Nominated Tribunal Judge)

Elena Fowler (Specialist Member)

John Hutchinson (Specialist Member)

 

Heard on 18^th March 2010 at the Combined Civil Courts, Liverpool

 

For the Appellant - the Appellant was unrepresented

For the Respondent – Mr Jonathan Auburn instructed by Treasury Solicitor

 

Witnesses:

 

CW

HS

JS

RBG

 

 

Appeal

1.         The Appellant in this case appealed against the decisions of the Secretary of State contained in a letter to the Appellant dated June 30^th 2009 (the Decision Letter):  firstly to confirm the Appellant on The Protection of Vulnerable Adults list (the POVA list) and secondly to confirm the Appellant on The Protection of Children Act list (the POCA list).   The Decision Letter also notified the Appellant that the effect of inclusion on the POCA list also meant the Appellant would not be able to carry out work to which Section 142 of the Education Act 2002 then applies, and that his name had been added to the Education Act list.

 

2.         The Appellant appealed against his listing to the Tribunal on September 23^rd 2009.  A response was received from the Respondent on 26^th October 2009.  There was a Directions Hearing on December 18^th 2009 and directions were given to set down the case for a one day hearing.

 

3.         The Directions Hearing also made a Restricted Reporting Order (RRO) under Rule 14(1)(b) of the Tribunal Procedure (First Tier Tribunal)(Health Education and Social Care) Chamber Rules 2008 (the Tribunal Rules) and the Tribunal confirmed that the RRO should  continue following the end of the hearing.  The Tribunal has concluded that the order under Regulation 14(1) (b) should continue indefinitely prohibiting the publication (including by electronic means) in any written publication available to the public or in the inclusion in any written relevant programme for reception in England and Wales of any matter to lead members of the public to identify any service user.

 

Preliminary Matter

 

4.         The Appellant failed to attend the hearing. The Tribunal is satisfied the Appellant was aware of the date of the hearing.   The firm of solicitors who had previously been acting for the Appellant notified the Tribunal two days before the hearing that they believed that the Appellant might not attend and that they had not received any further instructions and were therefore not proposing to attend the hearing. Attempts were then made to contact the Appellant by telephone, but it proved impossible to make any direct contact with the Appellant.  The Tribunal has concluded that as the Appellant had been informed of the hearing date and he had made no attempt to contact the CST Secretariat to explain why he might be unable to attend the hearing, the Appellant has chosen not to attend and give evidence. In these circumstances the Tribunal only heard oral evidence from the witnesses for the Secretary of State and the oral submissions from Counsel for the Respondent

 

5.         The POVA Appeal was brought under S86 (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.

 

6.         The POCA Appeal was brought under S4 (3) of the Protection of Children Act 1999 (POCA 1999) which is in similar terms to the CSA 2000, S86 (3) except that the wording “unsuitability to work with vulnerable adults” is replaced under the terms of S4 (3) of POCA 1999 “with unsuitability to work with children.”

 

7.         The relevant provisions of the CSA 2000 and POCA 1999 have now been repealed as from 12^th October  2009 by the Safeguarding Vulnerable Groups Act 2006 S63(1) and Schedule 10.   There are however  transitional provisions as set out  by the Safeguarding Vulnerable Groups Act 2006 (Commencement No 5, Transitional Provisions and Savings) Order 2009  [SI 2009 No 2611] which  provide that, despite the relevant provisions in the CSA 2000 and the POCA 1999 shall continue to have effect  in relation to a person who, immediately before 12^th October 2009, was both included in the POVA and/or POCA Lists and had not been dealt with under the newly established Adults’ or Children’s Barred list.

 

8.         The Tribunal Panel needs to consider in relation to both the POVA and the POCA Appeals:

 

            (i)        Whether the Applicant is guilty of misconduct

(ii)       Whether the misconduct harmed or placed at risk of harm a child or a vulnerable adult and

(iii)      Whether the Applicant is unsuitable to work with children or vulnerable

            adults

 

9.         The burden of proof rests with the Respondent to satisfy us that the Appellant was guilty of misconduct which harmed a child or placed a child at risk of harm, and that the Appellant is unsuitable to work with children and with vulnerable adults.

 

10.       The standard of proof is the civil standard of the balance of probabilities.   We have applied the standard of proof as set out in the speeches of the House of Lords in Re B (Children) [2008], UKHL.   Lord Hoffman said “…….There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.”

 

Facts

 

11.       The Appellant was employed as a care worker in Liverpool from July 2006 until he resigned in December 2007 by (S) a registered domiciliary care agency which provides support services to adults with learning difficulties and/or mental health issues.

 

12.       One of the service users of (S) was a 24 year old man (R) who had significant physical and mental disabilities.R suffered from Cornelia de Lang Syndrome (CLS) and as a result is unable to communicate through speech. R is partially sighted, small in stature (being approximately 4 foot 6inches in height) and can only move around on his knees. During the day R is supported by two care workers and at night by one care worker who is expected to stay awake during the shift. R is cared for in his own bungalow (the property) surrounded by his own possessions and toys and has unrestricted access throughout the property).

 

13.       On December 14^th 2007 R and the Appellant attended a Christmas social evening organised by S and then both R and the Appellant returned to the property.

 

14.       At some time between approximately 11 pm on December 14^th  2007  and 8 am on December 15^th 2007 it is alleged that the Appellant placed a broom or mop handle (the mop handle) across R’s bedroom  door which resulted in R being confined to his bedroom (the incident).

 

15.       CW in her evidence to the Tribunal stated that when she arrived at the property on December 15^th 2007 to begin her shift she had noticed that a mop handle had been placed across R’s bedroom door. The Appellant had then removed the mop handle and opened the door which enabled R to come out of the bedroom.

 

16.       On Monday December 17^th 2007 CW and JS, another care worker who had also become aware of the incident, reported the incident to HS the service manager.

HS then spoke to the Appellant by telephone on December 17^th 2007 and asked him to attend a meeting at S’s office to discuss an allegation which had been made against him, but the Appellant declined to do so. During the telephone call the Appellant informed HS that he was resigning from his job.

 

17.       S contacted the Liverpool Social Services Adult Protection Team on December 18^th 2007.    As a result of an Adult Protection meeting the matter was also referred to the Merseyside Police who investigated the matter, but subsequently the Crown Prosecution Service decided not to pursue the case.

 

18.       On December 19^th 2007  S  notified  the Commission for Social Care and Inspection (CSCI)  (which  has now  been  superceded by the Care  Quality Commission)   of the incident that had taken place and stated in the notice to CSCI that the Appellant had resigned before he was dismissed, for gross misconduct.

           

 

Background Facts and Evidence to the Tribunal

 

19.       The Tribunal bundle included witness statements from HS, CW, JS and RBG.   As the Appellant did not attend the hearing and give evidence, the Tribunal has had to rely on the statements made by the Appellant and the written responses made on his behalf by his legal representative contained in the tribunal bundle.

 

Evidence to the Tribunal

(CW)

20.       CW told the Tribunal that when she arrived at the property on December 15^th 2007 the curtains were drawn and the back gate had been locked and that this was unusual.   MW stated that the Appellant normally would have drawn the curtains and would have been ready for the handover but on this occasion she had had to ring the door bell and the Appellant had appeared startled when he drew the curtains and saw her.

 

21.       CW stated that when she entered the property she could see that a mop handle had been placed across R’s bedroom door.   The Appellant had then removed the mop handle, the door was opened and she had seen R kneeling beside his bed in a distressed state.  She said there was a pungent smell in the room because R had soiled himself.   The Appellant had opened the windows and continued to talk to CW saying that R had been pestering him in the night and that is why he had put the mop handle across the bedroom door. CW had then gone into the lounge with R and had tried to calm him down.

 

22.       CW said that R would have been confused and distressed by being confined in his room as “he has free rein over the bungalow.”   CW said that she was not against the Appellant, but admitted that she had had disagreements with him in the past.   CW said that the Appellant did not appear to think that he had done anything wrong by   confining R in his bedroom.  CW did acknowledge that the Appellant had previously had a good relationship with R.

 

23.       Later in the evening of December 15^th 2007 CW had been in contact by telephone with JS, another care worker, who had just finished the afternoon and early evening shift on December 15^th   2007 at the property.   JS told CW that the Appellant had told her about the incident. CW and JS had then discussed what to do next and whether they should report the incident to the management.

 

24.       CW explained how she had contacted S’s office on Monday December 17^th 2007 by telephone and voiced her concerns about what she had seen on December 15^th 2007 and had subsequently made a written statement about the incident.

 

(JS)

 

25.       JS had worked with R as a support worker for over four years and considered that she had a good relationship with him.   When JS arrived at the property on December 15^th  2007 to work her shift the Appellant had told her about the incident that had taken place.   JS said that the Appellant had said he had had a bad night with R and so he  had put the mop handle across the door to restrict the  R’s  movements,  but  it was okay because  he had  made  sure  that  R had a drink   in his room .

JS said that she had raised the matter with RBG on December 17^th  2007 when she had explained what had happened.RBG had said that the matter should be reported immediately.

 

26.       JS described the Appellant as “quite overpowering in his manner.” JS had previously had a disagreement with the Appellant concerning the staff rotas because the Appellant had deleted JS’s name and written his own name on the rota in order to gain additional hours of work. JS had objected and told the Appellant that he was not entitled to change the rota. JS denied that CW had a problem with the Appellant.

 

27.       JS stated that the Appellant had questioned the amount of tea that R was allowed to drink and she thought that this was because he didn’t want to have to change R.

 

28.       JS, when questioned by the Tribunal stated that the Appellant was unsuitable to work with vulnerable adults because he didn’t realise the seriousness of the incident.

 

(HS)

 

29.       HS has worked for S for over six years and in November 2006 became the Team Manager.   HS told the Tribunal that on December 17^th 2007 she received a telephone call from RBG informing her about the incident involving R.

 

30.       HS described how RBG and JS came into the office on December 17^th 2007 and they discussed what had happened and both RBG and JS had made written statements about the incident.

 

 31. Later the same day HS had telephoned the Appellant and asked him to come into S’s office because a serious allegation had been made against him.   During the telephone conversation the Appellant had told HS that R had been a pest and he had acknowledged that the incident had taken place. HS said that during the conversation the Appellant said that he did not think he had done anything wrong and that faced with the same situation he would do it again.

  HS said that she had told the Appellant that this was a very serious allegation, the Appellant then become verbally aggressive and swore at HS. HS said that the Appellant’s attitude had been very negative and that he had then said that he was resigning from his job.

 

32.       HS also described an earlier meeting that she had had with the Appellant on December 10^th 2007 (the meeting) when she gave him a verbal warning because of his repeated absences from work. HS said although the meeting had originally been a “back to work” meeting to discuss his absences, it had developed into a wider discussion about the Appellant’s grievances and dissatisfaction.   HS said that the Appellant was dissatisfied with the staff rota, the overtime arrangements and the bonus scheme; he felt he was not being treated fairly.  HS said that the Appellant’s attitude had been a bit aggressive, it had not been a productive meeting and the Appellant had not been happy. HS had then given the Appellant a verbal warning about his recent absences.

 

 

33.       HS was asked about her relationship and dealings with the Appellant, she stated that she had not previously had much direct contact with the Appellant and there were no grounds for wanting the Appellant to be sacked.

 

(RBG)

 

34.       RBG was a team leader for R’s unit and had sat with R on Friday 14^th December 2007, during the social evening. In his evidence he stated that R had been given a number of alcoholic drinks during the evening. RBG said that R liked the thought of a lot of glasses on the table but he did not actually consume very  much of the drinks themselves .

 

35.       RBG said that he did not think that the Appellant was suitable to work as a carer because he had no comprehension of how to assist and support R and what his actual role as a care worker encompassed.    RBG was critical of the Appellant’s attitude to the job and felt that the Appellant was mainly there for the money.

 

36.       RBG stated that when there had been discussions about the possibility of R going on holiday, the Appellant had expressed the view that he couldn’t see the point of taking R on holiday as he wouldn’t have been aware of his surroundings.

 

The Appellant

 

37.       As the Appellant chose not to attend the hearing and was not represented at the hearing the Tribunal has had to rely on the written statements made by or on behalf of the Appellant including the detailed statement by the Appellant dated December 5^th 2008 (December statement) and the written grounds of appeal dated September 24^th 2009.

 

38.       In the December statement the Appellant made the following points:-

 

(a)       At paragraph 17 the Appellant states that “R was his usual self, coming in and out of the living room whilst I pottered around.  He was pretty lively but not unmanageable.  He was just more hyperactive than usual.  It was an uneventful evening.”

 

(b)       The Appellant at para 18 states that on the following morning on December 15^th 2007 (incorrectly referred to as 2008) when CW came to the property “R was awake and playing in his room.   I left and returned home.”

 

(c)       The Appellant admitted that when HS telephoned him on Monday 17^th December 2007 (again incorrectly referred to as 2008) and had told him about an allegation that had been made against him, he had refused to go into the office to discuss the matter.

 

(d)       The Appellant stated at Para 21 “I was sick of her and I couldn’t be bothered with this and if she thought there was anything untoward please go to the police and report it to them. I stated that I had no confidence in her judgement or her integrity “

 

(e)       The Appellant acknowledged that he had then told HS that he was not coming back to work, and that he had heard nothing more from S.

 

(f)        The Appellant stated that he had subsequently been interviewed by the Merseyside Police and that he had been fully compliant with that investigation .

 

(g)       The Appellant strongly denied the allegations made against him by S. “No allegations of violence, abuse or mistreatment have ever been made against me  in the past”

 

39.       The grounds for the  Appellant’s appeal  included  the following points  :-

 

(a)       The allegation that the Appellant had placed a broom or mop handle across the bedroom door was refuted “ There has been no  proper basis upon which that  finding can be made and if the evidence  is properly considered it  will be seen that  despite what  HS says  the admission  to  her  was not  one of putting the broom handle in place but  rather having prevented  this vulnerable man from  leaving his room and potentially getting in to  danger elsewhere”

 

 (b)         The Appellant believes that he was  made a scapegoat by  HS   for failings at  S.

 

( c)         The evidence submitted did not justify the Appellant being placed on the POVA  and  POCA list and the decision  was  disproportionate .  

 

(d)          There was no evidence from a suitably qualified person to show that R had suffered great distress and showed signs of emotional and physical response to the restriction as alleged by the Respondent.

 

Respondent Counsel’s Submissions

 

40.       Counsel acknowledged that it was difficult to evaluate the evidence because there was no opportunity to cross examine or test the evidence as the Appellant had decided not to attend the hearing.   Counsel submitted that CW had been a credible witness who provided oral evidence of what she had seen when she had arrived at the property on December 15^th 2007 and that her version of events was plausible and should be accepted.   The oral and written evidence from JS and HS both referred to admissions by the Appellant that the incident had taken place. Counsel submitted that the witnesses’ evidence had been clear and credible and that none of the witnesses had any reason to lie.

 

41.   Counsel submitted that if it was accepted that the incident had taken place, then the risk of harm to R was high because:

 

 

     i.              R had limited means of crying out or expressing himself and his main method  of communication was to make gestures or physically touch his care workers which he could not do if he was confined to his bedroom behind a closed door.

 

   ii.              R would have been confused and distressed whilst confined in the room and he would have been at risk of accidental or self harm.

 

 iii.             R was also at the risk of mental distress and had suffered loss of dignity.

 

42.       Counsel submitted that the Appellant’s lack of insight into the risks and the distress caused to R meant that he was unsuitable to work with adults or children in the future.   The Appellant had not considered he had done anything wrong and had sought to justify his actions to JS by stating that it was alright because he had made sure that R had a drink with him in the room so it was OK.

 

43.       Counsel submitted that the Appellant had also shown no remorse for his actions. Counsel acknowledged that the Appellant may have had other issues or grievances about his work, but this incident was completely different from any other allegations and was not justifiable.

 

44.       Counsel acknowledged that previously the Appellant had had a good day to day relationship with R but submitted that the failure to identify  a risk of harm was not the same as an ability to care or interact with R. The Appellant had failed to recognise the risk caused by his action and this makes him unsuitable to work with either adults or children.

 

Findings

 

45.       The Tribunal regrets that the Appellant chose not to attend the hearing and give evidence.

             

46.       The Tribunal found CW to be a credible and caring witness and accepts her account of her  arrival at  the  property  on  December 15^th  2007  and that  on entering the property  she had seen  that R’s bedroom had been barricaded by a mop handle, and that when the door was opened R had been in a distressed state.    The Appellant disputed the allegation, but the Tribunal finds that CW was a plausible and credible witness.  

 

47.       It is common ground that R cannot speak, is partially sighted, of small stature and communicates largely by making physical gestures and by facial expressions.   It was also agreed by all parties that R was use to being able to move freely around his bungalow at any time of the day or night as he did not normally distinguish between night and day.   

 

48.       The Tribunal finds that during the incident R would not have been able to understand why he was unable to move freely around the  property or that the confinement to his bedroom would not last indefinitely.   The Tribunal accepts the argument of the Respondent that R would have been distressed and frightened by being confined in his room.

 

49.       In Angella Mairs [2004] 269.PC the Tribunal set out a number of principles that we have adopted in relation to the question of misconduct.   In particular that

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

 

• a single act of negligence could constitute misconduct, but in most cases it would 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 to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.

 

50.       The Tribunal considers that the Appellant’s action in confining such a vulnerable person as R even on one occasion to his bedroom was a serious  act of misconduct. The  Appellant  knew or ought to have known  that confined to  his bedroom behind a closed door  R would be unable  to communicate to the  Appellant  if he was in distress or ill or  simply  needed to   be changed .

 

51          The Appellant in his December statement describes R on December 14^th   2007 as being “pretty lively but not unmanageable.  He was just more hyperactive than usual.   It was an uneventful evening.”  (para 17).   This description contrasts with the Appellant’s handwritten entry in the care sheet for R where for December 14^th   2007 he crossed out “no problems” and wrote in large letters “drunken pest”!

The Tribunal accepts  that R may  have been restless or more unsettled because he had  attended S’s party  on  the previous  evening, but the  Tribunal  has heard no evidence to suggest  that  this  was an exceptional situation  where there were mitigating or special circumstances  to  justify  the incident . 

 

52.         The Appellant’s job throughout the shift was to attend to and react to R’s needs, instead his actions prevented R from expressing his needs. The Tribunal rejects the  suggestion in  the  Appellant’s Grounds of Appeal  that  the Appellant  action  was designed to prevent  “this  vulnerable man from leaving his  room and potentially getting in to  danger elsewhere”. R was entitled to   move around the property and the Appellant’s job  was to  assist  and help  him Instead the Appellant confined R behind a closed door  and this action amounts to  misconduct .

 

53.         The  Appellant   in  his   grounds of  appeal  submitted that it  has not  been established by a suitably qualified person  that R had suffered great distress and showed signs of emotional and physical response to the restriction as alleged by the Respondent. It is not however necessary for the Tribunal to make such a finding; the Tribunal  must  decide whether the misconduct harmed or placed at risk of   harm a child or a vulnerable adult. The Tribunal accepts the evidence of CW, RBG and JS that R would have suffered physical and mental distress when he was confined to his bedroom, as he would have been unable to understand why he was not able to move about the property.

           

 

54.       The Tribunal finds that the Appellant’s  misconduct  did   place  R at  risk of harm  because it meant  that R was unable to communicate  to the Appellant  his immediate  needs, and in a confused and distressed state  he was at a greater  risk of  self harm. R’s Care Plan ( tribunal bundle page 135) specifically refers to  this risk “ Sometimes R will self harm when he  is in pain or distressed “  

            The Tribunal finds that R did suffer distress as a result of the misconduct and there could have been very much more serious consequences if for instance R had choked or injured himself as no-one would have known about the event until the door was opened.

 

55.       In the Tribunal Bundle there is a letter dated December 15^th 2008 (the December letter) from the Appellant’s then solicitors which refers to allegations in the Respondent’s witness statements of the Appellant’s threatening behaviour towards other members of the staff.   The Tribunal does not intend to make a specific finding upon this point as there is no reference to the behaviour in the grounds of the original referral.

 

56.       The December letter also suggests that if the incident had really been so serious the other staff would not have waited two days before reporting the matter particularly as the Appellant was listed to be working again with R later  that same day (December 15^th 2007) .  It has been impossible for the Tribunal to determine the exact time when the incident occurred but it was probably in the  early hours of the Saturday morning of December 15^th 2007.   RBG, JS and CW subsequently reported the incident on Monday 17^th December 2007.Both CW and JS in their oral evidence stated that with hindsight they should have reported the incident on Saturday December 15^th 2007.  CW told the Tribunal that although the Appellant was due to work again with R later on Saturday December 15th 2007 she knew the Appellant was doing a joint shift with JS and would therefore not be left alone with R.The Tribunal finds CW’s explanation plausible and the Tribunal does not accept that any delay in reporting the incident until Monday December 17^th 2007 indicates that the staff did not consider it to be a serious matter.

 

Suitability to work with Vulnerable Adults

 

57.  As stated in PB v Secretary of State [2006] 628 PC there are 3 tests to be applied:

 

 (1) The Tribunal must firstly be satisfied there was an act or acts of misconduct and that  

 (2) One or more of those acts have harmed a vulnerable adult or placed them at risk of harm.

 

(3) It is only if those two tests are satisfied evidentially, that the third test is applied     namely, is the Appellant unsuitable to work with vulnerable adults and children

 

58.       The Tribunal  is  satisfied  that the   Appellant’s  actions  and omissions  did amount   to an  act of misconduct, and  that,  that  act  placed a vulnerable adult at  risk of  harm.The Tribunal must now  consider  whether  the Appellant is unsuitable to  work  with vulnerable adults and children.

 

59.       The Tribunal  has taken into account when considering  the  question  of unsuitability   the  approach adopted  by  the  Tribunal in Angela Mairs v Secretary of State  for  Education and Skills [2004] 269 PC  in particular   Para 111

 

111.                    Unsuitability to work with children

Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment 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 judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:

(a) the number of the incidents constituting the misconduct established for the purposes of section 4(3) (a) of the Act;

(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 the potential to harm a child;

(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

 

 

60.       The Appellant acknowledged in his December statement, (para. 20/21,) that he had refused to come into S’s office to discuss with HS the allegations made against him. The Appellant’s unwillingness to even consider discussing the allegation  demonstrates a  failure to  recognise  that S would have to take seriously  any  allegation   involving a service user whether well founded or not, and that it would have to  be investigated . 

 

61.       The Tribunal has noted that for the majority of the Appellant’s career he had worked in the security industry, the army and as a private investigator; his experience of working with vulnerable adults prior to working for S was limited to a private arrangement caring for a gentleman who suffered from dementia.

The Tribunal heard plausible evidence from HS and JS that the Appellant had been unhappy with the staff rotas and that in particular he had wanted more hours.  RBG in his evidence to the Tribunal questioned the Appellant’s attitude to the job and considered he was “there for the money.”

 

62        The Tribunal does not accept that the Appellant was being made a scapegoat for failings at S and that other members of staff had been against him; the staff were under a duty to report the incident which they did.

Furthermore CW and JS in their oral evidence had acknowledged that the Appellant had a good relationship with R, although they had expressed doubts about his overall attitude to his work.

 

65.       The Appellant’s ability to interact and chat with R was only part of his responsibility as a support worker, he also had a  responsibility to protect R, who was a vulnerable adult, against any potential harm or self harm and he clearly failed to do so. The Appellant at  the time of the incident  lacked any  insight  that  his action  might cause R distress or put  him at  risk  and  the Tribunal has not  been provided  with any  evidence to  suggest any  change   in  the Appellant’s attitude.  Having considered all the written and oral evidence the Tribunal considers   the Appellant is unsuitable to work with vulnerable adults. The Tribunal has concluded that the Appeal under S 86 of the CSA 2000 in respect of the POVA Appeal must be dismissed

 

66.       The Appellant has also been placed on the POCA list therefore the Tribunal needs to consider whether or not the Appellant is also unsuitable to work with vulnerable children.    The Tribunal finds that the mis-judgment which led to the misconduct is sufficiently serious that it would not be appropriate to separate out the POCA Appeal and treat it differently.  The Tribunal confirms that the POCA 1999 S4 Appeal must also be dismissed.   The fundamental lack of judgment by the Appellant in deciding to confine R demonstrates that he lacks the insight and suitability to work with either vulnerable adults or children.

 

 

 

 

67.       The Tribunal confirms that the Appeals are dismissed.

 

 

Dated April  19th   2010

Helen Clarke

Elena Fowler

John Hutchinson