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

 

 

 

In the First-Tier Tribunal (Health, Education and Social Care)

[2010] 1775.EY-SUS

 

 

 

JP - Appellant

 

v.

 

OFSTED - Respondent

 

 

Before

Judge Nancy Hillier

Mr James Churchill – Specialist Member

Ms Linda Redford – Specialist Member

 

Heard on the 30^th July 2010 at Watford.

 

1.     This is an appeal by Mrs JP under regulation 12(1) of the Childcare (Early Years and General Childcare Registers)(Common Provisions) Regulations 2008 (SI 2008/976) against the decision of the Respondent on 18 May 2010 to suspend her registration as a childminder.

2.     JP was represented by Mr Paul of Counsel. Mr Greatorex of Counsel represented the Respondent. The tribunal had a bundle of documents prepared by the Respondent. 

3.     The Tribunal heard the evidence of Professor Greenberg, Dr Allison, Dr Bowers, Ms Plewinska and SP (the Appellant’s husband)

 

 

Chronology

 

10 Mar 2010 Letter from Appellant to Ofsted regarding her son, AP’s illness. She explained that he had been a psychiatric inpatient and was now having home leave of 4 hours per day.

 

12 Apr 2010 Visit by Ofsted Inspector Esther Grey to Appellant

 

15 Apr 2010 Case review by Respondent

 

16 Apr 2010 Further case review

 

27 Apr 2010 Further case review. It was felt that SP was providing an appropriate level of protection and he “seemed to have the situation in hand”.

 

6 May 2010 Letter from Dr Bowers to Dr Allison about AP and his assessment of risk posed by AP.

 

10 May 2010 Letter from Dr Allison, Consultant Occupational Physician, to Ofsted enclosing a certificate stating that the Medical Screening Outcome for AP was Category D, Not Medically Suitable (to be registered as a childminder. 

 

12 May 2010 Visit by Ofsted Inspector Esther Grey to Appellant. Dr Allison’s report not disclosed to the Appellant.

 

10 Jun 2010 Letter from Appellant to the Tribunal requesting an adjournment of the suspension appeal hearing on 15 June 2010.  Not opposed by Respondent.

 

11 Jun 2010 Telephone Case Management Hearing.  Order of Tribunal re-listing hearing on 15 June 2010 for 6 July 2010

 

24 Jun 2010 Joint letter of instruction to Professor Greenberg

 

25 Jun 2010 Letter from the Respondent to the Tribunal confirming that the parties have agreed the instruction of an independent medical expert and containing a joint request to vacate the hearing on 6 July 2010.

 

Order of the Tribunal vacating the 6 July 2010 hearing.

 

7 Jul 2010 Report of Prof Greenberg

 

8 Jul 2010 Suspension appeal hearing listed for 30 July 2010

 

29 Jul 2010 Witness statements exchanged

 

 

Evidence

 

4.     We heard oral evidence from Dr Alexis Bowers, Dr Allison and Professor Greenberg on the issue of risk and from Mr SP to give us an update about AP.

5.     Professor Greenberg explained that he is a professor of mental health and is a Consultant Psychiatrist and Specialist in Forensic Psychiatry. He told us that it is very difficult to categorise risk into low, medium and high.  To say that AP posed ‘no’ risk to children, which in his categorisation would be one in a million, was unreasonable in this case.  In his opinion it was unlikely that AP would specifically target a child.  He therefore opined that there is a low risk of harm.  He did not think AP would specifically aim to hurt a child.  He did consider that there was a risk of AP acting in a haphazard manner.  At the time of his assessment AP had residual psychotic symptoms which were partially untreated; namely he still thought he was famous.

6.     Professor Greenberg was concerned about AP’s previous command hallucinations which could be a risk if he behaved in an unfortunate manner.  He believed that the risk of harm to others is low.  He also told us that if AP were to be doing well on medication in say six months the level of risk would be the same as any other member of the population.

7.     Mr Greatorex suggested to Professor Greenberg that there was a risk that AP might not respond well to changed medication.  Professor Greenberg responded that AP will be monitored by blood tests.  Further, AP has recognised the effect of substance abuse, although he could relapse.

8.     Professor Greenberg outlined three categories of patients.  One type have an episode of mental illness which is never repeated.  Another type quickly spirals down into serious chronic mental health difficulties.  Another group may relapse at some point in the future and continue a variable cycle of treatment, recovery and periodic relapses.  As time goes by one’s confidence could increase however there had been a partial recovery so AP was more likely to be  a person who would periodically relapse or may even recover, fully since he had not shown any signs of a ‘downward spiral’. Professor Greenberg therefore felt that AP’s behaviour ‘may’ pose a risk, but if asked is he is likely to act in a risky manner the answer would be no.

9.     He explained that following discussions with Dr Bowers they were agreed on two matters.  Firstly, they agreed that a person with schizophrenia who is well and sufficiently treated should be viewed as no more of a risk than any other member of the population.  Secondly, they agreed that a person suffering from untreated schizophrenia and abusing drugs poses an unacceptable risk.  The area of dispute between himself and Dr Bowers was whether AP had reached the position of an acceptable risk.  He felt that it would be clearer in six months time, whereas Dr Bowers viewed the risk as sufficiently low now.  He told us “I think there may be a risk because AP’s recovery is recent and he still has some symptoms.  If he’d progressed very fast then I’d be saying it is ok”.  When asked by Mr Paul on behalf of the Appellant about the risk of a sudden ‘flip’ Professor Greenberg explained that such a risk was below 1 in a 1000.  The overall risk of violence is about twice normal for schizophrenics and about eight times normal if they abuse drugs. He advised that any deterioration in AP’s condition would be more gradual.

10. Professor Greenberg also explained that a ‘relapse signature’ is important in identifying changes which would be seen by members of the family.  He was sure that JP (the Appellant) would seek help for AP if he became unwell, although it would be hard for her because she would want things to work out well.

11. Dr Bowers told us that he is the consultant psychiatrist at the relevant in patient unit and head of the crisis and home treatment team.  He deals with acute inpatients and risk assessment is his ‘bread and butter’.  He explained that as a forensic psychiatrist Professor Greenberg uses a different basis for assessing risk, but both were in agreement that the risk is low.

12. Dr Bowers met AP in February 2010 as part of his assessment and became his treating inpatient psychiatrist.  He discharged AP into the community and remained his treating psychiatrist until he was handed over to the early intervention team in May.  He explained that in order to discharge AP he had to be satisfied that the risks to self and risks to others had attenuated to a level where it was safe to go back into the community.  The main concern with AP was the risk of harm to himself, with the consequent risk of harm to others if they became witness to such behaviour.

13. At the time of discharge (May 27^th) Dr Bowers was confident about AP going back into a family setting where his mother was a childminder.  He would have spoken with the family and reported the matter to the Department of Children, Schools and Families if he had believed there was an appreciable risk to children.

14. Dr Bowers explained his assessment process using the analogy of an onion.  The illness of schizophrenia was just the outer layer.  There were many more relevant factors such as his history in respect of home, family and school, willingness to engage and type of psychosis.

15. In AP had residual psychotic symptoms when pressed to answer questions.  These related to his grandiose delusions - which in fact are a reduced risk when compared to someone who has persecutory delusions.  Also, AP’s command delusions were to hurt himself rather than others, which again reduces risk.

16. Dr Bowers said that he was pleased AP had not relapsed, has engaged with the early intervention team and was changing his medication.  He said the worrying factors would have been if AP were missing appointments or refusing to have urine tests.  The change in medication was primarily to reduce physical side effects and would be very closely monitored.

17. Dr Bowers explained that he believed AP might well relapse but only time will tell.  The relapse could occur in 6 months or 20 years and it was likely that it would take a similar form.  There was no need in his view to wait for a ‘relapse signature’ since AP was on appropriate medication and in a supportive family environment and is not misusing substances.

18. Dr Allison explained that he had assessed AP in line with Ofsted guidelines.  He agreed with Professor Greenberg that he would wish to see a period of behaviour with no disruption or substance abuse.  He had not met AP. When cross examined Dr Allison confirmed that he has no formal training as a psychiatrist.  He was unaware of most of the papers on risk assessment on which Dr Bowers bases his current practice.

19. Dr Allison thought that on assessing AP against the Ofsted guidelines the risk was unacceptable and therefore the guidance of medic al accountability was not met.  He had assessed AP against the standards set by Ofsted for applicants because Ofsted do not supply a separate set of standards for family members.  At the time of his paper assessment he believed AP to be actively psychotic with no evidence of stability. He does, however, consider around thirty reports a day of which about half concern mental health issues.

20. When cross examined he denied disregarding the evidence of Dr Bowers.  He had some concerns about an element of advocacy from a treating psychiatrist, however he used the Ofsted criteria, which is a different assessment process from that described by Dr Bowers.  He had not thought it was necessary to obtain a further psychiatric report.

21. Miss Plewinska gave evidence on behalf of Ofsted.  She accepted that the assessment requested from Dr Allison was on the basis of the Ofsted guidance for childminders and that ‘medical suitability’ is quite a wide phrase.

22. She explained that as part of the Ofsted assessment the background checks are the same for a childminder as for  the members of the family.  Schizophrenia is not a bar in itself, the safeguarding matters are taken into account while making a decision.

23. One of the concerns that Ofsted had was that AP and SP ‘lacked insight’  into the risks posed by AP.  At the time of this assessment Mr and Mrs P only had access to the report of Dr Bowers.  They were not given the report of Dr Allison due to ‘confidentiality issues’.  She accepted that there could be a fairness issue in criticising a person for lacking insight into a viewpoint which had not been shared with them.

24. Mr Paul challenged Ms Plewinska on her assessment that AP posed a significant risk to children.  She explained that this assessment was based mainly on the assessment of Dr Allison and her discussion with Miss Gray.  She accepted that she ‘maybe should have said “significant elements of risk”.

25. We also heard brief evidence from Mr SP, who is AP’s father.  He updated us on AP’s progress and the weekly support visits from the Early Intervention team.  He said that he had perhaps been naïve, but was now aware that he should treat AP as if he were a risk to children.  He knows the medical team well enough to discuss any issues with them and he knows the triggers to AP’s behaviour such as being withdrawn, describing disturbed thoughts which would necessitate a referral to the medical team.

 

 

Respondent’s submissions

 

26. Mr Greatorex submitted that the Respondent’s primary concern is the safety and welfare of children and  that the appeal is somewhat artificial  since the Respondent is now in a position to make a final decision on whether or not to cancel the Appellant’s registration. 

27. He further submitted that the final decision on cancellation has not yet been made and stressed that the suitability of the Appellant to be registered as a childminder is not the issue in this appeal, which is primarily concerned with whether the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.  It is the Respondent’s case that this test is clearly satisfied.

28. Mr Greatorex submitted that this appeal is somewhat artificial because the independent psychiatric evidence has been obtained. He submitted that this evidence is enough to prove a sufficient risk on the basis of the low threshold, and therefore the appeal must be dismissed. In the light of this report Ofsted has not withdrawn its Notice of Intention to Cancel.  He stressed that Ofsted has not made a final decision on whether or not to cancel and that all that is needed is for the Appellant to make the representations about the notice of intention that were first sought on 21 May 2010, following which the matter will be considered and a final decision made.  If the decision is made to cancel then the Appellant will have another right of appeal to the Tribunal. He submitted that that will be the “crucial” decision and (if it is to cancel) the appeal against that the “crucial” appeal.

29. Mr Greatorex also submitted that at this stage the issue is merely (and, somewhat artificially) that of reasonable belief that the continued provision of childcare may expose children to a risk of harm.  He said that this is a deliberately low threshold, intended to apply only for a short period of time, and submitted that it is plainly met in this case. He emphasised  that the Tribunal must resist the “obvious” temptation to go beyond this and do what it may be asked to do in due course and decide whether or not the Appellant is suitable to be a childminder.

Appellant’s submissions.

 

30. On behalf of the Appellant Mr Paul submitted that schizophrenia should not of itself drive the risk assessment.  He stressed that the legislation cannot have been intended to result in suspension on the basis of a fanciful risk.  The risk, he submitted, must have to be ‘significant’ to justify the suspension which deprives the childminder of their livelihood.  He submitted that Article 6 is engaged and that it would be inappropriate for the tribunal to impose an unrealistically low risk.  This meant that proportionality is engaged in order for state intervention to be necessary and justified.

 

Legal framework

31. Both Counsel agreed that he relevant legal framework was conveniently summarised in EH v Ofsted  [2010] 1774.EY-SUS [35-40] as follows:

 

35. The statutory framework for the registration of childminders is provided under the Childcare Act 2006. This Act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) Act provides for regulations to be made dealing with the suspension of a registered persons’ registration. The section also provides that the regulations must include a right of appeal to the tribunal.

36. Under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 when deciding whether to suspend a childminder the test set out in regulation 9 is  that the chief inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.

37. The suspension shall be for a period of six weeks. That period of suspension may be renewed for a further six weeks, but the power of suspension cannot normally be exercised for a continuous period of more than 12 weeks (Regulation 10(3)

38. The period of suspension can exceed 12 weeks where it is not reasonably practicable for the Chief Inspector, for reasons beyond the control of the Chief Inspector, to complete the investigation into the grounds for belief of risk of harm.

39. “ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989, “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”.

40. The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.

41. The burden of proof is on the respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. The belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk.

 

32. Our attention was also drawn to HS v Ofsted [2010] 1742.EY-SUS [22-27] and LM v Ofsted [2009] 1695.EY-SUS [11-16]

Tribunal’s Decision with Reasons

 

33. In coming to our decision we considered the oral and written evidence and the legal principle to be applied.  We reminded ourselves that this is a ‘suspension’ decision rather than a suitability decision.

34. We concluded that the appropriate legal test is ‘any’ risk, but we do not believe that the threshold is low enough to incorporate an acceptable risk.  The world is a risky place and the purpose of the Ofsted intervention in these cases, where the livelihood of the childminder is suspended, is to protect children from unacceptable risk, judged at a time when matters are at an initial stage and the evidence is not necessarily to hand.  We do not accept Mr Paul’s submission that the risk should be ‘significant’ because the statute does not use that word.  Nor do we accept the submission put forward by Mr Greatorex that since Professor Greenberg, the jointly instructed expert, has concluded that there is an unacceptable risk then the tribunal must find that the threshold is met.  We find that taken to its obvious conclusion such a course would mean that the decision would in effect be taken by an expert who is not instructed or entitled to give an opinion on the ultimate question.  We agree with Mr Paul that to take such a course or to fail to consider all the evidence about risk would be to infringe the Appellant’s Article 6 rights.

35. We have given less weight to the opinion of Dr Allison in reaching our decision because he has no psychiatric training, is not up to date in clinical psychiatric risk assessment and is fettered by the assessment process imposed by Ofsted.  The criteria supplied by Ofsted relate to Applicants rather than family members.  They are informed by a need to ensure that a childminder has sufficiently robust mental health to care for a group of children without losing their temper of acting in an inappropriate way.  Childminding can be very stressful and a person with compromised mental health may very well pose an unacceptable risk to children in such circumstances.  The guidance does not make any distinction between the mental health standards required of a childminder and those required of a family member who may be present in the house but who plays no part in the childminding activities.  As such we conclude that the guidance is inappropriate and the matter should be address by Ofsted as a matter of urgency.

36. Dr Bowers and Professor Greenberg were able to agree on the circumstances of acceptable and unacceptable risk.  The difference between them was that whilst they both put AP in the category of ‘low’ or ‘low-moderate’ risk, Dr Bowers believes that AP is already in the category of acceptable risk whereas Professor Greenberg believes that there is a need for a further period of stability before one could place AP in the category of acceptable risk.

37. We preferred the evidence of Dr Bowers who impressed us with his in depth knowledge of AP, his background and medical history and with the extensive material he took into account in assessing risk as events developed for AP over the course of 2010.  We did not conclude that there was any element of patient advocacy on his part.  He did not sit with Mr and Mrs P (indeed he missed the start of the case as he was unaware that they had come into the hearing room).  We were satisfied that if he had any concerns about AP’s risk to a child being looked after by the Appellant,  then he would refer those concerns to the authorities.  Dr Bowers’ reasoning about why his opinion differed from that of Professor Greenberg was also impressive.  He was able to demonstrate that the potential ‘relapse signature’ could be identified by AP’s past conduct and that he had taken it into account as part of the treatment programme for AP and his risk assessment.  We concluded that Professor Greenberg’s reasoning for the delay in waiting for a ‘relapse signature’ was based upon a much shorter assessment of AP and we were not satisfied that he had justified such a proposal.

38. In coming to our decision we also considered the submissions of Mr Greatorex who stated ‘It is a question of what is an acceptable risk and what isn’t.  In coming to that decision you will pay deference to the Ofsted decision’.  In this case we have done so, but are very concerned about the lack of distinct criteria for family members and also about the fairness of the Ofsted decision making process in parts.  We put ourselves in the shoes of the inspector and made our decision based on the current evidence.  We did not base our decision on suitability and our decision should not be read as a decision on suitability.

39. In the light of the evidence both oral and written and applying the legal principles we do not find that there is reasonable cause to believe that the continued provision of childcare by the Appellant may expose a child to a risk of harm.  We therefore allow the appeal and direct that the suspension be lifted.

 

40. The Tribunal, by consent, makes a restricted reporting order under Rule 14 (1) (a) and (b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the appellant, her husband or her son, so as to protect their private lives.   

 

Nancy Hillier

Tribunal Judge

2^nd August 2010