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

 

 

 

DECISION

 

 

Case No: [2009] 1629.PVA                  

 

THE FIRST TIER TRIBUNAL (CARE STANDARDS)

 

BETWEEN

 

J D

Appellant

 

-AND-

 

THE SECRETARY OF STATE FOR HEALTH AND THE SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

Respondent

 

 Dates

 

12 and 13 April 2010 and 26 May 2010.

 

Appeal

 

JD appeals under Section 86 of the Care Standards Act 2000 against the Respondents’ Decision dated 30 June 2009 to confirm his inclusion on the Protection of Vulnerable Adults (POVA) List and the Protection of Children Act (POCA) List.

 

Attendance

 

For the Appellant

 

The Appellant in person

Miss Day (Partner)

 

Witnesses:

Jason Townsend (26.05.10)

Miss Day (26.5.10)

 

For the Respondent

 

Lucinda Boon (Barrister)

Instructed by Geraldine Haack (Solicitor)

Nick Bandu (Trainee)

 

Witnesses:

Sabine Boulton (13.04.10)

Rita Dulla (13.04.10)

Tara Kahan (13.04.10)

Lesley Reynolds (13.04.10)

Sally White (13.04.10)

WDC Karen Holt (13.04.10)

 

Preliminary matters

 

a)    At the commencement of the hearing on Monday 12 April 2010 we ascertained that all of the parties and witnesses were present.  However, it transpired that, an interpreter organised by the Tribunal Service to support and translate for the Appellant was not in attendance.  We adjourned the hearing to ascertain whether or not that interpreter would be available to attend that day or to make alternative arrangements.  It transpired that the interpreter was not available as he informed our Clerk he had never received confirmation of the booking from the Tribunal Service.

 

b)    We enquired of the Appellant and his supporter whether they felt able to deal with the matter in the absence of the interpreter.  Their initial view was that they would try to do so, but Counsel for the Respondent urged us not to commence the hearing without the Appellant being supported by an interpreter.  We agreed that that approach was correct and as a result we adjourned the hearing until Tuesday 13 April 2010, a replacement interpreter having been identified and having agreed to attend.

 

c)     On Monday 12 April 2010, having adjourned the matter, the Tribunal viewed the video evidence of the interviews with VH and JG by the police.

 

d)    Between 13 April 2010 and the resumption of the appeal on 26 May 2010, the Tribunal directed that it wished to hear evidence from Mr Jason Townsend and issued a Witness Summons for his attendance.

 

The Issues

 

The Appellant, who was a Night Care Assistant at Pondsmead Care Home, was referred to the Independent Safeguarding Authority as a result of complaints made by VH and JG that JD had touched their breasts inappropriately whilst on nightshift on the night of 3 October 2008 and the morning of 4 October 2008.

 

The Appellant maintained in his Notice of Appeal, that he did not inappropriately touch the breasts of either lady.

 

In the circumstances the Tribunal, under Section 86 of the Care Standards Act 2000 has to be satisfied:-

 

a)    that JD was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult;

b)    that JD is unsuitable to work with vulnerable adults; and decide

c)     whether he is unsuitable to work with children.

 

The evidence

 

1.               Counsel for the Respondent, helpfully provided the Tribunal and JD with their opening submissions in writing.  In those submissions it set out facts which they suggested were not controversial and would be agreed by JD.  Whilst we heard the evidence of the Secretary of State’s witnesses on Tuesday 13 April 2010, it became apparent to us that some of the key factual issues in this matter were unclear.  It is right that the following facts appear to be clear and are not in reality contested.  These are:-

 

a)    That the elderly females in question are VH (DOB 03.07.22) who was aged eighty six at the material time and JG (DOB 20.03.24) who was aged eighty four.

 

b)    That on 22 August 2008 JD applied for a position as a Night Care Assistant at Pondsmead Care Home.  He was offered the position on 11 September 2008 and he was formally accepted on 30 September 2008.

 

c)     He began working at Pondsmead Care Home at 20:00 hours on 30 September 2008.  During the three night shifts he actually worked at Pondsmead he worked under the supervision of experienced Care Assistants.  On the night in question (3-4 October 2008) he was working under the supervision of Rita Dulla with whom he had worked two nights previously.  He was meant to have worked a fourth night but was unable to do so because the Home had not yet provided him with a uniform.

 

d)    On the morning of 4 October 2008, both ladies told care staff that JD had touched their breasts inappropriately.  As a result the matter was referred to the home’s Manager Tara Kahan who telephoned JD at his home and suspended him.  The decision was confirmed in writing on 6 October 2008.

 

e)    At 14:06 hours on 4 October 2008 JD was arrested on suspicion of sexual assault.  He was taken to Yeovil Police Station where he was interviewed between 18:29 hours and 19:53 hours.  During those interviews he strenuously denied that he had done what was alleged.

 

f)      On 15 October 2008 DC Karen Mines and DC Karen Holt conducted video interviews with VH and JG.  The videos of the interviews and the transcripts have been available to the Tribunal and read and viewed by it.

 

g)    On 20 November 2008 DC Holt wrote to JD informing him that no further action was to be taken in relation to the allegations because the two elderly females did not wish to give evidence in Court.

 

h)     In her letter to the Independent Safeguarding Authority of 25 November 2008 DC Holt explained why it was decided that JD would not be charged.  In essence this was for two reasons. First that the case rested on one person’s word against another and that the women did not wish to proceed through the Court.  Secondly, the Crown Prosecution Service, as a result of this reluctance to attend Court but also as a result of the discrepancies in the evidence, decided that a charge should not be forthcoming and that the case was dropped.

 

i)       After the Police confirmed they were taking no further action, the owners of the care home proceeded with their own investigation. JD did not attend the investigatory hearing, because he had moved address and was unaware of it, but did resign via his Solicitor on 2 December 2008 before the investigation could be concluded.

 

j)       As a result the Respondent invited JD to provide provisional listing observations and invited the owners of the care home to respond to those observations.  The Respondent decided to confirm listings on 30 June 2009.

 

The Respondent’s witnesses

 

2.               We first heard oral evidence from Tara Kahan, the care home’s Manager.  Ms Kahan, in her written and oral evidence, told us that Pondsmead is a large Victorian house with four floors with a new extension on the back.  It was registered for seventy six residents, all older persons that are highly dependent on nursing care.  She told us about the care that was required by VH and JG and gave an insight into their personalities.  VH has a reduced ability to move following a stroke and is reliant on a hoist to move her.  She cannot use her left arm.  JG has also suffered a stroke which has left her paralysed down one side.  She spends most of the time in bed but is taken out and hoisted in a chair occasionally.  Ms Kahan also said that she had conferred with the doctors of both complainants who had confirmed her view that both complainants were mentally competent.  Ms Kahan confirmed that their bedrooms were situated at either end of a long corridor, that neither had a telephone in their room and they both require assistance from staff to move from one place to another.  The remainder of her evidence related to the formal steps that she took following the report of the incident to her on 4 October 2008, when she was not on duty.

 

3.               We heard oral evidence from both Sally White and Lesley Reynolds.  Their evidence both in writing and orally before us was entirely consistent and related to Statements which had been made to them by the two complainants.  They told us that on 4 October 2008 they were working on the early shift which started at 08:00 hours.  They were working together getting the residents out of bed and changing them.  At approximately 11:30 hours they went in to wash and change JG.  Straight away JG told them that she did not like JD the new Carer and that he had touched her on the breast.  She also told them that she had told him to stop because she did not like it but he kept doing it.

 

4.               They did not know whether JD had been on his own with her that night or with another member of staff.  They knew that JG had had male Carers before without any problems and they thought what they were being told was true and decided they would have to report the matter to the two registered General Nurses who were on duty.  In the meantime, before they could do so, VH had rung her bell and both went in to attend to her.  When they were in with her she started to cry and told her that the new man JD had fondled her breast whilst washing her in the bathroom that morning.  Ms White was insistent that she was told this had taken place in the bathroom although she accepted in her Police Statement she said it was the bedroom.  Ms Reynolds agreed that they were told that it had taken place in the bathroom.  Both remembered VH saying that the bathroom door was shut. 

 

5.               Whilst telling the two witnesses this, they said that VH demonstrated the action by rubbing her breast with her hand and also said that each time JD dressed her with every item of clothing, he rubbed her breasts again.  She was clearly very distressed.  As a result, they went straight to the two Nurses and told them what had occurred.  They then both made Statements in writing on 7 October 2008 which were before us and were consistent with their oral and formal Statements which had been made.  Ms Reynolds did also indicate that the complainant JG had told them that JD had fondled her “boob” and she could remember that.  She also accepted that her Statement prepared for the purposes of this Tribunal suggested that so far as VH was concerned she had said that the incident had happened on the night before.  Her Statement which she had made on 9 October 2008 in her own writing also said that the complainant had said that it had happened on the previous night.  Both witnesses had also said that the complainant had complained that JD had opened her window and moved her bell away from her.

 

6.               We then heard evidence from Sabine Boulton, who is a Registered Nurse at the home.  She has been employed since January 2007.  On 4 October 2008 she was on duty working the 08:00 hours to 20:00 hours shift.  At approximately 11:55 hours Sally White and Lesley Reynolds approached her and one other Nurse telling her that service users VH and JG had made a complaint against JD.  They also said that they had understood that something had been said about this at handover but it had not been followed up.  Ms Boulton, with her colleague, went to see JG.  She described her as anxious but not crying.  She initially said something had happened but she did not want to say what it was but she then described what had happened and said that the new Night Carer had touched her.  She did not say that he had touched her on her breast but touched herself in that area.  Ms Boulton then went to see VH.  She asked VH what had happened, she was tearful and upset.  VH said the Night Carer had fondled her breast and she made an action of jiggling her breast.  She said that this had happened when she was being washed and dressed and he had made her feel very uncomfortable.  Ms Boulton considered that there was too much of a coincidence for this to have been a misunderstanding.

 

7.               We then heard evidence from Pedrita Dulla who has worked in the home since 2006.  She had been previously a Staff Nurse in Saudi Arabia and a Staff Nurse in the Philippines.  She was helped by an Interpreter, Obdulia Cadrew.  Ms Dulla’s evidence is very important as it is the nearest to first hand evidence that we had other than the evidence of the Appellant himself.  As we have recited above, Ms Dulla worked with JD throughout the nightshift on the night and morning in question.  Her evidence so far as the resident JG was concerned was that on Friday 3 October 2008, after she and JD had come onto duty, they went to room 58 where JG lived.  She had to be washed around her bottom area as her bowels had opened.  She was clear that she washed JG with JD in the room and had to put JG on her side to wash her.  She was equally clear that JD only watched and there was no contact between them. 

 

8.               At around 06:45 hours in the morning she, from her records, indicated that with JD she had gone to a number of rooms before they had gone to see JG.  JG was awake and was her normal self.  She needed to be washed at the bottom end of her body as she had opened her bowels during the night.  JD was on the opposite side of JG’s bed and helped turn JD onto her side, lifted her nightie up past her hips, removed the incontinence pad and washed her bottom area with some wet wipes.  JD held JG in place on her side by putting his hands on the side of her waist and the other hand on her thigh which was facing upwards to steady her whilst Ms Dulla performed the washing.   They then turned JG onto her left side and JD steadied her by holding her right side which was facing upwards.  There was not much conversation between them but at no time did JG make any complaint about JD.  Ms Dulla was clear at no time had she left JD with JG and there was no occasion when she had seen anything inappropriate happen at all between the two of them.  Similarly she was satisfied throughout the night that JD had been with her and he had had no opportunity to enter JG’s room without her being aware of it.

 

9.               Her evidence as to VH however was different.  She said in the evening she had been into VH’s room and she had gone on her own.  VH had not required any assistance.

 

10.           However, in the morning after they had dealt with JG they went to see VH.  VH needed to be hoisted from her bed onto the chair and wheeled into her en-suite bathroom.  Again Ms Dulla was clear that when she was in the bathroom with JD and that she removed VH’s nightie and washed her and that JD had merely watched.  She was clear that whilst in her sight JD had not been involved in washing VH at all.  However, it became apparent that Ms Dulla had been called to the next door room to assist another resident and had left JD unattended with VH to complete her dressing.  She told us that she had done all of VH’s dressing other than putting her blouse on.  She told us that VH does not wear a bra but a vest and blouse and that JD had to put the blouse on over her head.

 

11.           When Ms Dulla came back from attending to the adjoining resident, VH appeared upset, her face was red and she looked like she was going to cry.  Ms Dulla asked her what was wrong and VH said to her “JD touched my breast, he opened the window and I do not want it open” and looked over at JD.  JD was still in the room and he did not say anything.

 

12.           Our attempts to clarify this issue with Ms Dulla through the interpreter were difficult, but she was clear that in her mind, anything that JD had done was not malicious or inappropriate.  She said that JD had not entered into the room before her and opened the window and pulled down VH’s bedding.  She maintained she had gone into the room herself with JD and that there was no opportunity for him to have done those things or to have removed the bell as was alleged.

 

13.           At the end of her shift she went to see the Night Supervisor, Mr Townsend, and told him that VH was upset.  Her recollection was that she had said to Mr Townsend that VH was crying because JD had touched her breast and opened the window.  Mr Townsend’s recollection, as we will recite later, was slightly different.

 

14.           Finally, on 13 April 2010 we heard evidence from WDC Karen Holt.  When the matter was reported to the Police, WDC Karen Holt attended at the care home at 13:15 hours on 4 October 2008 where she met Sabina Boulton and the other Registered Nurse.  There was produced to us a copy of WDC Holt’s notebook in which she had recorded the brief notes of her meeting with both complainants.  VH told her that JD had come into the room and “fondled her breasts by juggling them”.  She noted that VH was extremely distressed and had difficulty in talking to the Police.

 

15.           She told us that she had also immediately seen JG.  JG had shown her how JD had touched her breast by putting her hand over her breast and neck area.

 

16.           On 15 October 2008, the two Officers had returned to conduct video interviews of both complainants.

 

17.           From the two video evidences that we have seen it is apparent that VH was very upset by what happened.  Her evidence was that Ms Dulla did wash her in the toilet and had said to JD that he could help her put her clothes on when she went to help the neighbouring resident. She maintained she was in the bathroom with JD with the door shut, as she was sitting on the commode with nothing on.  This account is inconsistent with the evidence of Ms Dulla who said she had mostly dressed her before she left her with JD to complete the task.  VH indicated that as JD put her vest on he had rubbed both of her breasts and as he put her t-shirt on he did the same thing again.

 

18.           As for JG’s interview, during the interview she denied that JD had rubbed her breast, denied that she was upset about it and denied that he had touched her anywhere other than her shoulder.  Watching the DVD carefully, it is apparent that JG on one occasion did touch herself clearly on her breast (although on the right side where in fact as a result of breast cancer she had no breast) but when re-examined by the Police Officer she maintained that he had only touched her on the shoulder.  Her account was the JD had come into the room during the previous evening (it being dark) on his own and had sat down and started rubbing her shoulder.

 

19.           Importantly JG maintained that the incident had happened after it got dark, and that JD had entered her room alone and had carried out the alleged assault that she described.  In her account Ms Dulla was not present during the incident at any stage.

 

20.           The accounts of both VH and JG were in nearly all respects identical as to the nature and effect of the assault on them.  However there were many areas of uncertainty or where the evidence was unclear and had not been fully investigated or explored at the time.

 

Additional witnesses

 

21.           On 26 May 2010 we heard evidence from one further witness, Mr Jason Townsend, who was originally to be called by the Secretary of State but it was then decided by him not to call Mr Townsend.  Mr Townsend was a Deputy Head of the nursing home and was in charge of the shift on the night of 3 and 4 October when the alleged incidents took place.

 

22.           Mr Townsend’s evidence, as to the matter of JG, was that he had seen JG in the evening to administer her evening drugs.  At that time (and Mr Townsend was unclear of precisely when he had seen her) JG had raised no issues with him about JD’s alleged misconduct and he had heard nothing about this until late the following day.

 

23.           However, so far as VH was concerned, he had seen her at around 7.45am on the morning of 4 October.  When he did so, VH complained about JD saying she did not want him to attend to her again.  Mr Townsend remembered that she had said that JD had opened her windows and curtains and did not like the way he had washed her.  She had made the action of washing under her arms.  At the time, Mr Townsend thought that VH, who he said did not like change and could be emotional, was reacting to having a new Carer who might have been somewhat exuberant about how he had washed her.  He intended to have her and JD together in the evening to resolve the issue.  He did not suspect at the time that there was any suggestion of inappropriate behaviour being alleged by VH against JD.  He accepted in evidence before us that he might have overlooked the implication of what had been said.

 

24.           Mr Townsend had a recollection of a brief discussion with Ms Dulla at the end of the shift but he could not recollect that Ms Dulla had told him that VH was upset because JD had touched VH’s breast.

 

25.           There was one piece of written evidence which was material because we did not hear her oral evidence.  Rachel Herd, a Nurse at the home, worked with JD on his second evening on 2 October.  They worked together on the middle floor so she could directly observe him.  She reported that JD and she had given some of their residents’ drinks and sandwiches but some were already in bed and did not want anything.  She reported they then put everybody else into bed.  JD observed what she was doing and she was telling him how to handle the residents and how to use the equipment properly.  He was with her all night and she never left him on his own.  In the morning, she started washing the residents at 6am and JD continued to observe and stood and watched until she told him what to do.  He never washed anyone; he just tidied the beds and cleared the bowls.  When she was putting on the residents’ clothes he helped her but was unsure of what to do as he had never handled residents before because he had no experience.  When everybody was finished she asked JD to throw the waste bins into the yellow bin which is provided and he helped her to take the laundry to the laundry room.

The Appellant’s evidence.

 

26.           Mr D’s written evidence for the Tribunal and before us was in fact very simple.  First he said that during the three nights he had actually worked at the home he had never once entered a residents’ bedroom.  He said that when he worked with Ms Dulla she would not allow him into rooms.  He had stood in the doorway and observed, but helped her by taking out dirty crockery and bedding, washing up in the kitchen and handing over clean bedding and crockery and cutlery to her.

 

27.           Secondly he said he had never washed or dressed a resident at all, but had merely watched how this was done.  He said both Ms Dulla and VH were wrong when they maintained he had helped to dress them.  He repeatedly denied he had in way acted inappropriately in his limited dealings with e residents.

 

28.           Further he maintained on the shift in question (3 and 4 October) not only did he work directly with Ms Dulla, but Ms Dulla was accompanied throughout the shift by an Indian Nurse whose name he did not know.  He maintained that they did all of the washing and dressing and care of the residents and all he did was the cleaning and clearing up for them.  No other witness had mentioned during the course of the hearing a third member of the team on the ground floor that night and the matter was never put by JD’s two witnesses when they were giving evidence.

 

29.           JD’s partner, Ms Day, also gave evidence to deal with the content of various letters sent both to the Solicitor appointed by her to represent JD, the care home and the Secretary of State.  It had been put to JD in cross examination by Counsel for the Respondent that he had never set out his case in the way we have set out in the three paragraphs above but had accepted that he had dressed patients and that any alleged misconduct might have been caused through his carelessness and was certainly not inappropriate.  Ms Day told us that she had written most of the letters herself and without much involvement from JD, and she had not fully understood his case until she had helped him write his Statement for the hearing.  Therefore she said any inconsistencies were her fault and not the Appellant.

 

Submissions

 

Respondent’s Submissions

 

30. The respondent’s submissions were that there was cogent evidence of misconduct. The two allegations were mutually collaborative and that evidence of one complaint was capable of supporting the other. Secretary of State for Children, Schools and Families v J [2009] EWHC 524 (Admin).  Whilst the Respondent accepted that there were some inconsistencies in some of the evidence there was none that was capable of undermining the force of the central allegations against the Appellant.

 

31. As to suitability the Respondent relying on  the tests set out  in Mairs v Secretary of State for Education and Skills Application no. [2004] 269.PC. Maintained that if the Tribunal found that the Appellant was guilty of misconduct the nature and gravity was such as to mean that the Appellant was unsuitable to work with vulnerable adults.  The Respondent also submitted relying on Secretary of State for Children, Schools and Families V BP [2009] EWCH 866 (admin) that public confidence would be undermined if JD was not also barred from working with children.  The respondent relied on the gravity of the facts, the severity of the abuse of trust, and his failure to acknowledge any wrongdoing.

 

The Appellant’s submissions

 

32. The Appellant’s prime submission was that his account was true and the evidence of the other witnesses untrue.  He maintained that he had done nothing wrong. On his behalf MS Day submitted that the evidence from Ms Dulla in writing was written three days after the incident.  That that statement said complainant had not liked way JD had washed her although Ms Dulla maintained he had not washed her. She also reminded the Tribunal that Ms Dulla had not believed that JD had done anything deliberately wrong.  She suggested that the evidence was that one of the complainants was not mentally strong.  She suggested that neither liked new staff or foreign ones and this could have led to their complaints.

 

33. She invited us to pay no attention to the police interview with JD and pointed out that one complainant referred to her attacker as a “dark man” and that JD would not be described as such.

 

The Law

 

34. Section 86(1) of the Care Standards Act 2000 allows to appellant to appeal to this tribunal against the Respondent’s decision to include him in the list maintained under Section 81 (3).

 

35. Under Section 86 (3) if we are not satisfied either that the Appellant has been guilty of misconduct which harmed or placed at risk of harm a vulnerable adult or that the appellant is unsuitable to work with vulnerable adults we must allow the appeal.

 

36. In deciding whether the Appellant has been guilty of misconduct in this case we have followed the guidance given in the case of Secretary of State for Children, Schools and Families v J [2009] EWHC 524 (Admin).on the probative force of the evidence of the two complainants.

 

37. In deciding whether the Appellant was suitable to work with vulnerable adults we considered the guidance contained in paragraph 111 of the decision in Mairs v Secretary of State for Education and Skills Application no. [2004] 269.PC.

 

38. In considering his suitability to work with children we considered the decision of Secretary of State for Children, Schools and Families V BP [2009] EWCH 866 (admin) and the maintenance of public confidence.

Tribunal’s conclusions with reasons

We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us during the hearing of this appeal.

 

39. In reaching our decision, we have in accordance with decision of the Secretary of State for Children, Schools and Families –v- J [2009] EWHC524 (admin) in assessing the probative value of the evidence given to us, considered;

 

§            The risk of collaboration and contamination between witnesses.

 

§            Recalling the degree of similarity between the allegations and the period of time over which they were made.

 

§            Considering any other factors which reflected on the credibility or reliability of the complaints.

 

Collaboration/contamination

40. In this case, all of the evidence presented to us showed no prospect of there being any risk of collaboration of contamination between the witnesses.  The evidence showed that VH and JG lived at different ends of the corridor on the ground floor of the home.  They were not friends and had no telephone in their room.  JG was mostly bed ridden.  Given that the incidents happened over one shift and became known by 11am on the morning of 4 October, we can see no way in which there was any collaboration between these two complainants.

 

Degree of similarity between the allegations of VH and JG

41. In this case there is a striking similarity between the allegations of JG and VH.  First, they both describe JD as the person responsible.  They describe him as the new male Care Assistant.  Secondly in their initial description of what had occurred the conduct complained of was for both a fondling of their breasts and the refusal of JD to stop his misconduct when asked to do so.  Thirdly on each occasion the incident happened in the absence of Ms Dulla.

 

Creditability of JG as a witness

 

42. Turning to the issue of the creditability and reliability of the two complainants, here we have considerably more concern.  Both ladies are elderly and both have had strokes.  We viewed the videos of their evidence very carefully and reviewed certain passages on occasions.

 

43. JG’s evidence is partially inconsistent and as such potentially unreliable.  When she first complained about the incident to Sally White and Lesley Reynolds (see paragraph 3 above) she was clear that JD had touched her on the breast and had not stopped when she asked him to.  She was initially reluctant to confirm this to Mrs Boulton later in the morning, but did do so (see paragraph 6 above).  In addition, all the complainant could recollect when interviewed by the Police was that the incident had happened after dark but she made no complaint about it until around 11am the next morning.  We accept the evidence of Jason Townsend that he received no complaint from her when he administered drugs to her in the evening, although of course it is quite possible that the alleged assault occurred after he had done so.

 

44. When seen by WDC Holt on 13 April, JG demonstrated to her that JD had touched her on the breast and neck.  However, when the Police Officers returned to video her evidence on 13 April, she repeatedly denied that JD had touched her breasts and maintained that he had merely rubbed her neck, although she did not wish him to do so (see paragraph 18 above).  However the evidence showed that she had been consistent with the core facts until the video interview.  We have been told that she did not like the police and was reluctant to cooperate with them. .

 

45. Further in the video there was some evidence to suggest that JG had difficulty recollecting basic personal details which suggested her evidence might be unreliable.

 

46. Against this, the evidence of Ms Kahan (see paragraph 4) was that JD had mental capacity and there had been no record of any similar complaint.  She also confirmed that she had checked with JG’s Doctor who also said she had mental capacity.

 

47. In testing the consistency and reliability of her area, we looked to see what other, if any, evidence might have supported her complaint.  We have recorded the Appellant’s denial of having ever entered the complainant’s room, knowing her by sight or name, or having assaulted her.  We also noted that Ms Dulla’s evidence was that she was with JD throughout the night and that he had had no opportunity to enter the room of JG without her knowledge.  We noted also that the inconsistency of the care staff in their reports as to when they understood from JG that the assault had taken place.  Initially, most had concluded that it had taken place on the morning of 4 October and not on the evening of 3 October.

 

VH creditability and reliability

48. Turning to the issue of VH’s creditability her evidence has remained consistent and clear throughout, with only one minor difference.  In addition, there is clear corroborative evidence to support the fact that JD had a clear opportunity to carry out the assault on VH whilst unsupervised and that VH complained about it immediately it had allegedly occurred.

 

49. The one inconsistency in her evidence is that initially VH said that the incident occurred whilst JD was washing her.  The Respondent accepts this is not the case and maintains that the evidence showed that the assault occurred whilst she was being helped to dress by the Appellant.  Otherwise she has been consistent from the outset and her immediate evidence to Ms Dulla to White and Reynolds, to Boulton, Kahan and the Police has been the same in all respects.

 

50. The fact that there is clear evidence of opportunity for JD to have carried out the assault was in Ms Dulla’s evidence (see paragraph 10 above) in that she recalls that she went to assist another resident leaving JD to complete the dressing of VH.  VH gives an identical account.

 

51. In these circumstances we find that VH’s evidence is entirely creditable.  Had we been judging the allegation against JD made solely by JG, we could not have concluded on the civil standard of proof that JD had carried out the act on which the Respondent relies.  However, taken together, given the similarity of the two allegations, the timescale in which they occurred and the creditability of VH’s evidence, we are forced to conclude using the civil standard of proof that it is more likely than not that these assaults were carried out by JD.

 

52. In reaching that conclusion, we are appreciative that we may be imposing a great injustice on JD.  There were some clear discrepancies in the surrounding evidence which lead us to consider long and hard whether or not they affected our conclusions on the core allegation.  First, we did have real concerns as to whether or not there was a further member of staff on duty on that night.  The staffing rota which was produced to us showed that only five members of staff were due on and that a further member of staff was required who might come from the bank.  We heard no evidence about this.  If there had been evidence, this might have supported in some way JD’s core contention that he was working with two experienced members of staff on the night in question and there was no need for him to have dressed, washed or otherwise helped residents.

 

53. Secondly, we have given lengthy consideration as to the issue as to whether, if JD had indeed been dressing these two ladies it might be said that what had occurred had resulted as a result of his clumsiness and inexperience of dealing with female residents rather than an assault of the type which is actually alleged.  Certainly so far as VH is concerned, and whose account we have found consistent and true, it is clear that the assault occurred whilst JD was indeed dressing her.  It is clear that VH did not wear a bra and that on the evidence of Ms Dulla and VH it was necessary for JD to put on a blouse and cardigan.  We can see that in certain circumstances an inexperienced Carer might have inadvertently touched the breasts of VH.  However, this would not explain the nature of the touching which VH alleges, her immediate upset and complaint to Ms Dulla nor his refusal to stop when asked to do so by VH.  The issue does not arise on the account given by JG.

 

54. Thirdly, we have given careful consideration as to whether or not these allegations were in fact fabricated.  For the reasons we have set out above and complying with direction given by the High Court, we have concluded that they were not primarily because of the fact that two allegations were made in a short period of time of identical type against the Appellant.  We have nothing before us by way of evidence which could lead us to believe that these allegations were made maliciously by these two elderly ladies.  Mr Townsend, in his helpful evidence, did tell us that VH was very set in her ways and did not always take well to new Carers.  Whilst we can see that these ladies might in principle have been upset by having a new Carer, or as JD says by having a new foreign Carer, we have no evidence which suggests that this would have motivated them to make the type of complaints that were made and it seems unlikely to us that such feelings would have resulted in two identical complaints given their inability to have communicated with each other and put together the sort of complaints of which we are now dealing.

 

55. We find JD’s evidence difficult to accept as it is not supported by any witness. To find that he had never entered a resident’s bedroom as he maintains would mean we would have to find that Ms Dulla’s evidence and the evidence of Ms Herd was incorrect.  Similarly we find the evidence of JD that all residents were washed and dressed in the corridor outside their rooms when rooms clearly had en-suite bathrooms unsustainable and again would mean that we would have to find the evidence of others untrue.   In all we find JD’s evidence on these key issues unconvincing and not such that undermines our view as to the strength and consistency of the evidence of the two complainants.

 

56. For all these reasons, we have concluded that JD is guilty of misconduct.

 

57. That being the case we have no hesitation in concluding that he is unsuitable to work with vulnerable adults because of the nature and gravity of his misconduct and the fact that he is not prepared to accept what he did.

 

58. With more hesitation we also conclude that to maintain public confidence he is also unsuitable to work with children.

 

59. For these reasons our unanimous decision is that the appeal is dismissed.

 

Order

 

That the appeal be dismissed.

 

 

Signed:

Chairman:               Tony Askham