IN THE CARE STANDANDS TRIBUNAL

 

 

LLM

 

v.

 

Secretary of State

 

[2009] 1580 PVA

[2009] 1581 PC

 

-Before-

 

Mr Andrew Lindqvist

(Nominated Chairman)

Ms Denise Rabbetts

Mr Mike Jobbins

 

 

Heard on the 20^th July 2010 at York House, 31 York Place, Leeds. LS1 2ED.

The Appellant was represented by Mr Lee Gledhill of Counsel.

The Respondent was represented by Ms Samantha Broadfoot of Counsel instructed by the Treasury Solicitor.

 

 

DECISION

 

 

1. The appellant appeals against two decisions of the respondent dated the 6^th October 2006, one to confirm the appellant's inclusion on the list of persons considered unsuitable to work with vulnerable adults, kept by the Secretary of State under section 81 of the Care Standards Act 2000 (‘the PoVA list’),  the other to confirm her inclusion on the list kept under section 1 of the Protection of Children Act 1999 (‘the PoCA list’).  A direction in respect of the appellant under section 142 of the Education Act 2002 (' List 99 ') follows automatically from her inclusion on the PoCA list and is properly not the subject of a separate appeal.

 

2. This matter has an unfortunately lengthy history.  The most material event occurred on the night of the 19/20^th  August 2003.  The appellant was dismissed for gross misconduct on the 21^st August and on the 30^th November 2004 she was struck off the register by the Nursing and Midwifery Council.  The Secretary of State confirmed her inclusion on the PoVA and PoCA lists on the 6^th October 2006 and the appellant appealed on the 9^th November.  The appeal was heard on the 15^th and 16^th October 2007, the Tribunal's decision in the appellant's favour was issued on the 7^th November.  On the 5^th December, the Secretary of State appealed to the High Court.  The appeal was heard by Bean J. on the 8^th May 2009, he set aside the Tribunal's decision of the 7^th November 2007 and remitted the appellant's appeal to a freshly constituted Care Standards Tribunal.

 

3. On the 18^th March 2010 directions were given about oral and documentary evidence and the appeal was set down for hearing in Leeds on the 20^th July 2010.  A restricted reporting order was made under rule 14(1) (b).

 

4. Section 86 (3) of the Care Standards Act 2000 provides (in relation to the PoVA list) that if the Tribunal is not satisfied as to a) misconduct and b) unsuitability to work with vulnerable adults, it shall allow the appeal, otherwise it shall dismiss it. Section 4 (3) of the Protection of Children Act 1999 contains an identically worded provision in respect of the PoCA list.

 

5. The appellant had always accepted that she had been guilty of misconduct and that was not in dispute before the first Tribunal or before the High Court, consequently, the only issue before the Tribunal was that of unsuitability.

 

6. The hearing took place, as directed, in Leeds on the 20^th July 2010.  Neither party opted to call further evidence.  Without objection from Mr Gledhill, Ms Broadfoot introduced notes taken by the Treasury Solicitor at the Tribunal hearing on the 15/16^th October 2007 to fill gaps in the record of that hearing arising for the most part from the apparent failure of a tape recorder.

 

7. It occurred to the Tribunal before the start of the hearing that its task was very likely to be the deciding of the issue of unsuitability on the basis of the facts found at the previous hearing. To avoid blurring of the issues arising from factual disputes the Tribunal extracted from the evidence, what it saw as  essential facts. These were agreed by the parties, not as exclusive and exhaustive factual findings, but as a factual basis.

 

8. Also in preliminary discussion, Mr Gledhill asked the Tribunal, if it should find the appellant suitable to work as a carer under supervision, to state such finding -- it might serve as a basis for argument elsewhere under the Human Rights legislation. Ms Broadfoot, viewing the prospect of such argument without enthusiasm, initially invited the Tribunal to confine itself to answering the questions posed by the two Acts governing the appeal, but later conceded that, in the appropriate circumstances, the finding sought by Mr Gledhill should be made.

 

9. However, on the 26^th July 2010, the Chairman received an e-mail message from the respondent's solicitor, to the effect that the respondent had reconsidered his position and reverted to the position originally adopted, namely that the Tribunal should confine itself to the questions posed by the two Acts.

 

10. Although the submission of argument after the conclusion of the hearing might be permissible under regulation 5, it is an undesirable practice because it may arrive after the decision is issued.  As the Tribunal members often discuss the appeal and reach a decision immediately after the hearing, such argument is almost bound to reach the chairman after the decision has been made.

 

11. The Tribunal asked Mr Gledhill to deal with a point of obvious significance, namely the appellant's reasons for acting (or failing to act) as she did.  Her previous explanation had been that she had made a mistake, at no stage had she said what the mistake was or offered a fuller explanation.

 

12. The background to the appeal can be relatively briefly stated.  In July 2002, the appellant, then 30 years old and a nurse registered in Botswana since September 2000 (and subsequently registered with the Nursing and Midwifery Council) came to work in the United Kingdom.  On the 21^st January 2003 she started work as a registered nurse at The Beeches Nursing Home (' Beeches’).  Beeches has some 60 patients on two floors.  Many are elderly and frail.  The appellant was employed as a Night Sister.  In the usual way, the night staff consists two nurses (one for each floor) and four or five care assistants.  Patients are checked two-hourly throughout the night.

 

13. One of the residents, ' patient A ', was a frail, elderly man with diabetes.  He seems to have been popular with the staff.  On the night of the 19/20^th August 2003 the appellant was, after about 2 a.m., the only nurse on duty, a colleague having left early for personal reasons.  During the night, patient A lapsed into a diabetic coma.  Despite the concerns of the care assistants, the appellant did not give patient A any treatment or attention (other, possibly, than checks), and it was left to the day staff coming on duty at about 7 a.m. to take notice of patient A’s grave condition and arrange emergency treatment.

 

14. The agreed factual findings proposed by the Tribunal and agreed by the parties (after minor amendments to the Tribunal's original suggestions) were: --

 

1. The appellant came on duty at around 9 p.m..
2. At about 11:30 p.m., a care assistant told the appellant of patient A’s condition.
3. On other occasions subsequently, care assistants told the appellant of patient A’s condition.
4. At about 6:10 a.m. the appellant was told by a care assistant that patient A was unwell.
5. Soon after 6:10 a.m., the appellant checked patient A and observed that he was unresponsive. She checked his blood pressure, temperature and pulse.  All were normal.  The appellant and a care assistant propped up patient A.
6. At 7 a.m., the appellant returned to patient A and found his condition unchanged.
7. If the appellant checked patient A's condition between 11:30 p.m. and 6:10 a.m., she took no action as a result.
8. It was alleged against the appellant that she had slept on duty and altered records, but there was not sufficient evidence to justify any finding to that effect.
9. On one occasion, the appellant had attempted to administer an anal ointment to a patient's eye, genuinely mistaking it for an eye ointment, an error pointed out by the patient concerned.

 

15. By way of adding to those agreed facts, Ms Broadfoot sought to show that the appellant did not check patient A during the night. She pointed to the fact (accepted by Mr Gledhill) that the appellant's signature did not appear at all on the record.  ' 2 Hourly Cares/Fluid Balance Chart '  (at p.  61).  That record contained entries by the care assistants, significantly more often than at two-hourly intervals -- a possible indication of their concern.

 

16. Mr Gledhill, in response, was able to point to the appellant's evidence to the previous Tribunal that she also checked patient A (p. 364) and to her recollection that she checked patient A to ensure that he had not deteriorated.

 

17. In assessing the appellant's suitability to work with vulnerable adults.  The Tribunal applied the criteria suggested in Angela Mairs v. Secretary of State, [2004] 269 PC.

 

18. Number of incidents

It could be said that the misconduct (i.e. neglect of patient A) was confined to one incident.  If it is to be viewed in that way, however, it was a protracted incident.  It could also be seen as a series of separate incidents of failing or declining to attend to patient A.

 

19.  Gravity

The misconduct was grave in itself as a serious dereliction of duty.  It was also grave in its consequences in putting patient A into a position in which his life was at risk.

 

20.  Time elapsed

The misconduct occurred nearly 7 years ago.  Mr Gledhill pointed out that the appellant has worked successfully as a nurse since then (before her removal from the register in November 2004).  She worked as a care assistant for a short time after that (before the provisional listing in October 2005) and from January 2008 to August 2009 (after the Tribunal decision in her favour in November 2007).

 

21.  Recognition

The appellant has always accepted her misconduct and its gravity.  It is of concern to the Tribunal that she has consistently described it as a mistake, but has been unable to specify what the mistake was and consequently how she came to make it.  Mr Gledhill was unable to provide any further enlightenment on that question.  The appellant has expressed her regret on a number of occasions. 

 

22.  Remedial Steps

Since August 2003, the appellant has undertaken further training.  She has taken refresher courses in wound care, first aid, diabetes and manual handling and has been on a course designed to provide a general update of nursing skills.

 

23.  Extenuating circumstances

Extenuating circumstances prayed in aid by the appellant included  bereavement, pressure of work and poor staff and inter-staff relations.  It was also suggested that she was misled by the records pertaining to patient A.

 

24.  The Tribunal considered it unlikely that the appellant checked patient A before 6:10 a.m..  If she had done so, she would have surely, after repeated expressions of concern by the care assistants, have made some record.  It is clear from her observations and action at 6:10 a.m., that she totally failed to appreciate patient A’s condition and its gravity, -- she checked his pulse, blood pressure and temperature and, despite observing that he was unresponsive, simply made him more comfortable. At no time did she check his blood/glucose levels to ascertain whether he was hypoglycaemic. On checking him again at 7 a.m., she noticed no change and merely alerted the day nurse to keep an eye on him.  Her assessment of the condition of patient A did not appear to be one which would have provoked checking during the night.

 

25. In one sense, whether the appellant checked patient A during the night is not of essential importance.  Her failure was not giving proper attention and treatment to an elderly and frail patient in her care.  Whether that arose from not checking his condition at all or checking but not recognizing his condition is of subsidiary significance.

 

26, The Tribunal was concerned about the appellant’s disregarding the concerns of the care assistants. It has two aspects.  First, the patient is in the care of a team.  One of the ways in which the team functions is that the care assistants (who constitute in a way the ' front line ') bring their concerns to the qualified staff for investigation/action.  If the qualified staff do not respond appropriately, the patient cannot receive proper care. Second, in failing to respond to the care assistants’ expressed concerns, the appellant undermined their position and diminished the effectiveness of the team, of which she was at the time, the leader.

 

27. The appellant's inability to explain the reasons for her inactivity is also a major concern.  The notes show that patient A was ' not rousable ' from 2:20 a.m..  The appellant herself observed and noted that at 6:10 a.m. he did not respond to painful stimuli.  Even if she had forgotten that he was diabetic, and so failed to consider the possibility of a hypoglycaemic attack, surely patient A’s protracted ' unrousability ', should have alerted her to a need for action greater than simply adjusting his pillows.

 

28. This lack of any reason of the appellant's conduct, in the Tribunal's view, negates to a significant extent the steps she has taken since. It would be one thing, for example, if she admitted to failing to recognize a diabetic coma and had taken the course on diabetes to remedy that failure.  But there is nothing in the evidence to suggest a deficient knowledge of diabetes.  There is a total and unexplained failure to apply that or any other knowledge or experience to the pressing needs of the patient in her care.

29. The Tribunal was unable to give much weight to the exculpatory factors prayed in aid by the appellant.  She had lost two brothers, the second in particularly tragic circumstances in May 2002.  One can but sympathise with such a loss, but the appellant did say in her evidence to the previous Tribunal that she had dealt with it and worked through that issue, had accepted that her brother was gone and that she had to continue with life.  The bereavement had happened 15 months before the events of the 19/20^th August 2003 and the appellant had started work at Beeches in January of that year.

 

30. There was no evidence to satisfy the Tribunal of any unusual pressure of work on the night in question.  It is true that the appellant was the only nurse and that there were about 60 patients. It was not suggested anywhere in the evidence that the staff were overburdened by the patients’ needs that night.  In particular, there is no suggestion that there were needs so pressing that a diabetic coma had to be relegated to prolonged lack of urgent attention.

 

31. There is little in the evidence about poor staff and inter-staff relations, though there is a suggestion of some friction between the local and the overseas staff.  In the circumstances that can hardly assist the appellant -- it would mean that she took no notice of the concerns of the (presumably local) care assistants either because she was disinclined to take their unqualified concerns seriously or perhaps because she saw those concerns as, possibly deliberate, irritation. In this regard at the Tribunal gratefully adopts the dictum of Bean J. – “ The public is not entitled to expect that everybody working in a care home or hospital will necessarily get on well or even like each other but they should be able to put aside personal issues in the interests of the patient.” (p. 393).

 

32. The day notes read by the appellant when she came on duty record that patient A was sleeping and in no pain. For those reasons the day staff had not given him his evening analgesic. That may have suggested to the appellant that patient A’s drowsiness was not a matter of concern during the early hours of the shift.  It cannot justify or explain her repeated disregard of the concerns of the care assistants, who from 2:20 a.m. recorded that patient A was not rousable.

 

33. The Tribunal received and read a number of personal references from colleagues and previous employers of the appellant, and one from the priest of her church.  All spoke of the appellant's responsibility, trustworthiness and conscientious performance of her duties.  The Tribunal was able to take them into account in the appellant's favour.

 

34. Taking into account all the evidence of the circumstances of the night of the 19/20^th August, after making due allowance for what was said in the appellant's favour, the Tribunal felt driven to the conclusion that she must be considered unsuitable to work with vulnerable adults. So serious a dereliction of duty must, in the Tribunal's view, in the absence of a satisfactory explanation, lead to such a finding.

 

35. The Tribunal is conscious of the fact that in reaching that conclusion, it is differing from the decision of its predecessor.  The decision of the earlier Tribunal was based on the premise that the appellant could work as a care assistant under supervision.  There is, however, no power to impose conditions (e.g. supervision), and it was pointed out that the appellant, if working as a carer might well not be supervised, for example, if she worked as a domiciliary carer.  She could not, of course, work as a nurse, having been struck off the register -- a decision beyond the Tribunal's jurisdiction. Even if supervision could be imposed, the appellant’s failure to explain the reasons for her “mistake” made it impossible to know what form and degree of supervision was appropriate. The Tribunal would not have considered supervision to be practical or realistic.

 

36. Although in the light of the Tribunal's finding of the unsuitability the question does not arise, nor is it necessary to consider the Secretary of State's late argument, it would be wrong to leave the appeal without a brief mention of Mr Gledhill's Human Rights argument in relation to which he had prepared a thorough and extensive skeleton argument.

 

37. In a nutshell, Mr Gledhill's argument is that, even if the Tribunal had found the appellant suitable to work under supervision, she would have been unable to work in that way because there is no way in which the requirement of supervision could have been implemented, whether by order, agreement, condition, undertaking or otherwise.  The regulatory framework in which an appellant is either suitable or unsuitable (described by Mr Gledhill as 'binary' ) and which provides no means of, for example, imposing a condition, (a ' third way ') would breach the appellant's rights in denying her supervised work, which she was capable of undertaking.

 

38. In consequence of the Tribunal's finding of unsuitability, not only does Mr Gledhill's argument fall by the wayside, but also, the appellant is precluded for 10 years from the work for which she was qualified.  That is a matter which the Tribunal can consider and did consider as a measure of the gravity of the misconduct.  But it is a mistake to regard the Tribunal's decision as in any way a sentencing exercise.  Parliament has provided that ten years must elapse before the appellant can apply for her removal from the PoVA list.  Although having considerable sympathy with the appellant, whose one lapse brought down on her such serious consequences, the Tribunal cannot interfere; it is an automatic consequence of the Tribunal's answer to the question posed by the two Acts. 

 

39. The Tribunal was unable to find any circumstances in the case, which might put the PoVA list and the PoCA list into different categories.  Neither party argued for any such distinction.  It follows that the Tribunal must also confirm the Secretary of State's decision to include the appellant in the PoCA list and with that, her automatic inclusion on ' List 99 '.

 

40. Although the restricted reporting order of the 18^th March 2010 is not limited in point of time, the Tribunal repeats it ex abundante cautela.  This decision has been anonymised accordingly.

41. It is the Tribunal’s unanimous decision, for those reasons, that both appeals be dismissed.

 

 

 

 

 

 

Andrew Lindqvist

Denise Rabbetts

Mike Jobbins

 

29^th July 2010