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

 

 

 

Patricia Marie Catherine O’Connell

Appellant

 

v

 

Secretary of State for Health

Respondent

 

[2009]1646.PVA/1647.PC

 

Before

Mrs Meleri Tudur (Tribunal Judge)

Mr Richard Beeden

Mrs Margaret Williams

 

 

Heard at Pocock Street, London on the 4 October 2010.  The Appellant Ms Marie O’Connell was represented by Mr Jamie Burton, counsel, instructed by Mr Smith, solicitor and the Respondent by Mr Gwion Lewis, counsel instructed by the Treasury Solicitor represented the Secretary of State accompanied by Ms H Mc Connell, solicitor.

 

Appeal

 

1.     The Appellant appeals under section 86 of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include her in the list of individuals considered unsuitable to work with vulnerable adults and under Section 4(1)(a) of the Protection of Children Act 1999 (PoCA) against the decision of the Secretary of State for Children Schools and Families under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children.  The effect of the inclusion on the PoCA list was that she would not be able to carry out work to which s 142 of the Education act 2002 applies and her name was also added to the Education Act list, commonly known as “List 99”.

 

Restricted Reporting Order

 

2.     27 May 2010, Tribunal Judge Melanie Lewis made a direction under Rule 14(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any service user, child or vulnerable adult, such order to continue in force until the Tribunal directs otherwise.

 

3.      The order is extended until the time for appeal has expired or if an appeal is made until further order of the Upper Tribunal but subject to such order shall continue indefinitely.

 

The Law

 

4.      The appeal is made against two decisions taken by the Secretaries of State in their letter to the Appellant dated 29 June 2009, namely:

 

(1)      the decision by the Secretary of State for Health to confirm the Appellant’s inclusion on the Protection of Vulnerable Adults List (“the PoVA List”);

(2)      the decision of the Secretary of State for Children Schools and Families to confirm the Appellant’s inclusion on the Protection of Children Act List (“the PoCA List”).

 

5.     The letter also notified the Appellant that the effect of inclusion on the PoCA List was that she would not be able to carry out work to which s. 142 of the Education Act 2002 applies and her name was also added to List 99. Section 81(1) of the Care Standards Act 2000 (“CSA 2000”), which was in force when the letter was issued, required the First Respondent to keep a list of individuals who are considered unsuitable to work with vulnerable adults. No one could be placed on that list except in accordance with Part VII of the CSA 2000.

 

6.     Section 82(2) of the CSA 2000 requires those providing care to vulnerable adults to refer individuals to the First Respondent if, inter alia, the provider had dismissed the worker on grounds of misconduct “which harmed or placed at risk of harm a vulnerable adult”.

 

7.     The Respondent, having considered the information submitted with the reference and any observations or information submitted to him which he considered relevant [s. 82(6)], was obliged to confirm a worker’s inclusion on the PoVA list if he was of the opinion [s. 82(7)]:

“(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the worker is unsuitable to work with vulnerable adults.”

 

8.     Similarly, when the letter was issued, the Secretary of State for Children Schools and Families was obliged to keep a list of individuals who are considered unsuitable to work with children, pursuant to s. 1(1) of the Protection of Children Act 1999 (“PoCA 1999”). Where an individual was put on the PoVA list, he/she could also be listed on the PoCA list under s. 2C of the PoCA 1999.

 

9.     Once an individual was confirmed on the PoCA list, then by virtue of Regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, he/she was also entered onto a list of those not entitled to carry out work to which s. 142 of the Education Act 2002 applies (i.e. related to the provision of education).

 

10. On 12 October 2009, the relevant provisions of the CSA 2000 and the PoCA 1999 were repealed to allow for the introduction of the new barring regime under the Safeguarding Vulnerable Groups Act 2006. However, savings and transitional provisions as set out in the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (S.I. 2009/2611) mean that the Appellant still has available to her the mechanism under the CSA 2000 and the PoCA 1999 for appealing against the PoVA and PoCA listings respectively.

 

11. By virtue of these provisions, the Appellant may still appeal against a PoVA listing under s. 86(3) of the 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 duties) 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.”

 

12. An appeal may also still be brought against a PoCA listing under s. 4(3) of the PoCA 1999, which is in similar terms to s. 86(3) of the CSA 2000 save that unsuitability to work with vulnerable adults is replaced with unsuitability to work with children.

 

13. If a PoVA appeal is dismissed, it is not inevitable that a PoCA appeal must also be dismissed. Each case that comes before the Tribunal must be looked at on its own facts and context will be important: MB v. Secretary of State [2005] 512 para 21. The question for the Tribunal is whether, if a PoVA appeal is dismissed, the continuation of the appellant’s name on the PoVA list also makes him/her unsuitable to work with children: Kathleen Jackson v. Secretary of State [2005] 623.PVA, 624.PC.

 

14. The burden of proof on appeal is on the First Respondent who made the primary PoVA listing and who must demonstrate, on a balance of probabilities, that the criteria listed in s. 86(3) are made out. The standard of proof is the civil standard of the balance of probabilities.

 

“Misconduct”

15. In Angella Mairs [2004] 269 PC, a case dealing primarily with an appeal against a PoCA listing, the Tribunal set out a number of principles on what constitutes “misconduct”, including [para 109]:

(1) “Misconduct is not defined in the [PoCA 1999] nor is the term qualified by any adjective such as ‘serious’ or ‘gross’.”

(2) “In principle, a single act of negligence could constitute misconduct (per Webster J in R v. Pharmaceutical Society of Great Britain ex p. Sokoh (1986) The Times, 4 December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling”.

(3) “In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standard of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843)”.

(4) “It is not helpful to attempt to further refine ‘misconduct’ by reference to any adjective having moral overtones. The word ‘misconduct’ does not necessarily connote moral censure. An individual can be ‘guilty of misconduct’ without being, for example, dishonest or disgraceful.”

 

“Harm/risk of harm”

16.    By virtue of s. 121 of the CSA 2000, “harm” means “ill-treatment or the impairment       of health”.

 

“Unsuitability”

17.   Not all those found guilty of misconduct will be held to be unsuitable to work with       adults or children. As the Tribunal made clear in Angella Mairs, each case must be   looked at on its own facts and in context, and the judgment as to unsuitability will          involve [para 111]:

“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 performances, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.”

 

18. In making this assessment, the Tribunal, whilst not intending to provide an exhaustive list, held that the following factors may be relevant [para 111]:

“(a) the number of incidents constituting the misconduct established;

 (b) the gravity of that misconduct;

 (c) the time that has elapsed since that misconduct;

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

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

 (f) extenuating circumstances surrounding the misconduct.”

 

19. Moreover, unsuitability must be judged by the Tribunal at the date of the hearing [para 111]

Background

20. The Appellant was born in the UK and brought up in Ireland, returning to the UK at the age of 20.  She has a longstanding history of depressive episodes.

 

21. From 1997, she has worked in the care industry, initially at a residential home for people with learning disabilities and subsequently as a home carer.

 

22. She was employed as a residential carer when she started working for Westminster Homecare Ltd on the 16 November 2005 on a part-time basis, working between 6 and 16 hours per week.

 

23. During 2006 and 2007, the Appellant successfully completed several relevant training courses to help in her work, such as the manual handling, dementia and PoVA courses.

 

24. In April 2007, the employer documented serial lateness and poor timekeeping in visits to service users and on the 3 May 2007, a disciplinary hearing for using a service user’s telephone to make unauthorised telephone calls to Ireland, lateness and poor practice, led to the Appellant being given a final written warning in respect of her conduct.

 

25. The Appellant underwent retraining and further courses in the light of the final warning and on the 25 April 2008, the Appellant was the subject of another disciplinary hearing following allegations by neighbours of a service user that she had a drink problem and an allegation of theft of the contents of three miniature bottles of spirit from the service user’s home and further findings of lateness.

 

26. On the 16 May 2008, the Appellant was dismissed for gross misconduct and a referral made to the Secretary of State’s Protection of Vulnerable Adults Team for consideration.

 

27. On the 13 October 2008, the Appellant was provisionally listed on both PoVA and PoCA lists and invited to make written representations.  She responded with details of the Brent Alcohol Counselling Service (BACS), with which she had engaged in an attempt to resolve her problem and makes a reference to her taking anti-depressants.

 

28. On the 26 November 2008, she entered into a counselling contract with BACS which was to last until 7 May 2009.

 

29. On the 6 March 2009, a letter was sent from BACS giving the Appellant a final warning regarding her lateness or non attendance at the counselling sessions.  The record of attendance indicated that she had been late on 9 occasions and had failed to attend on two.

 

30. On the 20 March 2008, the Appellant’s contract with BACS was terminated as she had missed a further session without explanation.

 

31. On the 29 June 2009, the Appellant’s name was confirmed on both the PoCA and PoVA lists, and she appealed against the listing on the 28 September 2009.

 

32. In the course of the appeal, the Appellant admitted to the four allegations of misconduct made against her and pursued her appeal on the basis that she was suitable to work with both vulnerable adults and children.

 

Evidence

33. The Tribunal had in evidence a bundle of documents which included evidence from the Appellant’s former employers, as well as her current employers.

 

34. The Tribunal read witness statements from Katy Roberts, a consultant with  a business consultancy company, currently working for the Drug and Alcohol Services, Foundation 66, which confirmed that the Appellant had completed an NCFE Level 1 peer mentoring and support qualification and a second statement by Johanna Weaver of Brent Homeless User Group, (BHUG) confirming that the Appellant has been volunteering as a front of house volunteer and co-delivering community research and involvement training with a BHUG trainer, assisting in the delivery of training.

 

35. Tribunal evidence at the hearing was unsworn.

 

36. The Tribunal heard oral evidence from Ms Tina Beverely Hurn, Operations Manager at Westminster Homecare Limited, the Appellant’s former employer.  In her written statement, she outlined the background to the case and to the allegations which led to a finding of gross misconduct against the Appellant which led to her dismissal in May 2008.

 

37. In oral evidence, she explained that she had given the Appellant a second chance following the first disciplinary hearing in 2007, because she was well regarded as a carer and there were no complaints about her from service users.  Ms Hurn had taken the view that the Appellant would learn from her mistakes, and she gave her an opportunity to try again because of her previously unblemished record.

 

38. Ms Hurn explained that the company had a zero tolerance approach to drinking alcohol whilst on duty, and this was set out in the staff handbook.  She stated that every employee was provided with her own staff handbook on engagement, and explained that during the first disciplinary hearing, the Appellant had claimed that she did not own a copy and consequently, had been provided with a second copy following that first hearing in 2007.

 

39. The Appellant gave oral evidence confirming the contents of her written statement at the outset, but explained significant changes to the interpretation of it in the course of her evidence.  She could see from the statement that the suggestion was that she had a history of substance misuse, but she denied this.  She acknowledged that she had failed to prioritise her work so as to ensure that her timekeeping was better, but put some of the difficulties down to her having lost her driving licence due to driving with excess alcohol in 2008, and having to rely on public transport to get to work.  She denied drinking alcohol during her working hours, but confirmed that she might have been drinking the night before or before going into work and that this would mean that she would still smell of alcohol.

 

40. On cross-examination, the Appellant presented a different picture in relation to her management of her difficulties.  The written statement signed in August 2010 confirmed that the Appellant had not been drinking alcohol at all since April 2010. However, in oral evidence on cross examination, she confirmed that this was inaccurate and that she had moderated her alcohol intake and that she had been drinking moderately and within the government’s healthy drinking guidelines of 14 units per week since April 2010.

 

41. She gave evidence that she had first raised her concerns about problems with alcohol abuse with her GP in 2006 and he had suggested that she did not have a drink related problem and that she did not require treatment but could monitor her own drink consumption.

 

42. In 2009, she accepted that she had a problem and sought support and help.  In oral evidence, she confirmed that she could not be certain that it was the problems with alcohol that caused her poor timekeeping but rather that this was an inherent problem for her over the years.

 

43. She confirmed that the counselling route had not provided her with the answer to the problem and that she had derived greater support from the peer support and group meetings at the Ethnic Alcohol Support Service and Adaction.

 

44. The Appellant confirmed her own view that she would be suitable to work with vulnerable adults and children under supervision but wasn’t confident that she was yet ready to work on her own initiative.  

 

45. We consider that the Appellant’s suitability relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.

 

Conclusions

46. We noted that the Appellant had an unblemished record in the care industry in the ten years up to 2007 but that her timekeeping had been an issue throughout her employment by Westminster Homecare Ltd.

 

47. It was confirmed in the course of the hearing that the Appellant was consistently late to appointments and did not appear to be able to prioritise her work in such a way as to enable her to make changes to her working pattern to enable her to attend those adults to whom she provided care at the appropriate time.

 

48. It was submitted on behalf of the Appellant that the other incidents were isolated and that this should be balanced against her previously unblemished record.  In our view, such a submission is not entirely accurate, because about twelve months prior to the dismissal, she had been the subject of a previous disciplinary hearing and the Appellant had been unable, despite the final written warning given to her then, to address her own shortcomings with further late attendance with service users reoccurring within the week.

 

49. We noted that there were significant inconsistencies between the contents of the Appellant’s statement and her oral evidence, the most significant of which is the difference in her account of her current drinking.

 

50. It was drawn to our attention by Mr Lewis that the tone of the Appellant’s statement was significantly different to the language she used in oral evidence and that her apparent acceptance of her difficulties with her use of alcohol, as set out in the statement, was not reflected in her use of language at the hearing.

 

51. It was clear from the Appellant’s oral evidence that she does not or does not any longer, accept that the abuse of alcohol is a problem for her, placing the blame for her conduct and behaviour on the use of prescription anti-depressants and her depression.  We take the view that this may be a way of minimising the difficulties with alcohol to enable her to continue drinking and to avoid taking responsibility for her actions.

 

52. We concluded that the Appellant’s evidence was unreliable and that we could not be confident that she had insight into the effect of her conduct on the vulnerable adults for whom she provided personal care services and that we could not be confident that her conduct or behaviour would be any different if she was placed in a similar situation again.

 

53. Whilst we noted the admissions in relation to the difficulties with timekeeping, it would be very difficult to deny the problems, given the records kept by the employer.  In relation to the other allegations, we concluded that the admissions reflected a pattern of behaviour over a period of time which could impact significantly on the quality of care which the service users received.  We did not share the Appellant’s confidence that the absence of actual complaints meant that there were no grounds for complaint in the quality of care given the nature of the relationship with service users and the vulnerability of those service users in the care situation.  The allegations of misconduct were admitted by the Appellant, and such conduct had the potential to cause significant harm to vulnerable adults.

 

54. The Appellant herself admitted that she was not yet ready to work entirely on her own and to rely on her own initiative when working with vulnerable adults. It is not within our power to limit her employment or to apply conditions to her registration which might allow her to work in certain circumstances, such as under supervision as she considers would be appropriate and consequently, the risk of harm to vulnerable adults is such if her application was allowed and her name removed from the PoVA list, that the appeal against the PoVA listing must fail.

 

55. We then considered the PoCA listing.  We conclude that the same conclusions apply in relation to children and that children placed in the Appellant’s care would also be subject to the same risk of harm.  In consequence her name will also remain on List 99

 

56. This is the unanimous decision of us all.

 

57. The appeals are dismissed.

 

Order

 

Appeals dismissed.

 

 

Mrs Meleri Tudur (Tribunal Judge)

Mr Richard Beeden (Specialist Member)

Mrs Margaret Williams (Specialist Member)

 

 

Date:  20 October 2010