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

Eric Norman Beach

v

Secretary of State

[2009] 1587.PC

[2009] 1588.PVA

                                               

Before:

Andrea Rivers

Denise Rabbetts

Graham Harper

Heard at Copthorne Hotel Newcastle on 25^th, 26^th and 27^th January 2010

For the appellant:

Jonathan Barker, solicitor

For the respondent:

Gwion Lewis, counsel

                                                       DECISION

1. This was an appeal against a decision by the respondent, confirmed on 29^th April 2009, to include the appellant on both the Protection of Vulnerable Adults (PoVA) and the Protection of Children Act (PoCA) lists.

2. The appellant lodged his appeal with this tribunal on 22^nd July 2009.

3. At a directions hearing on 18^th November 2009 the appeal was set down for hearing. At the same time the Deputy Principal Judge, Simon Oliver, made a Restricted Reporting Order 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 vulnerable adult. The tribunal renewed this order at the substantive hearing, to continue until further order.

Legal Framework

 

4. Section 81(1) of the Care Standards Act 2000 states that:

The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.

5. Section 86(1) states that:

An individual who is included...in the list kept by the Secretary of State under s81 may appeal to the Tribunal against –

(a) The decision to include him in the list...

6. Section 86(3) states that:

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....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.

7. Section 1(1) of the Protection of Children Act 1999 states that:

The Secretary of State shall keep a list of individuals who are considered unsuitable to work with children.

8. Section 4(1) of the same act provides for an appeal against inclusion on this list to this tribunal, and section 4(3) sets out the criteria for determining such an appeal, which are the same as those for the PoVA list.

9.  In respect of appeals against inclusion on either of these lists, the burden of proof is on the respondent and the standard of proof is balance of probability.

10. Where a person’s name is included on the PoCA list it will also be included on the list set up under s142 of the Education Act 2002 and known as List 99.

Factual Background

11. K, (the home) is registered to accommodate 20 residents with functional mental health problems. It is one of a group owned by an organisation known as MHC.

12. On 1^st February 2007 the appellant, Eric Beach, went to work at the home as a staff nurse. He was employed to work two shifts a week and he also continued with his previous job, working two days a week as a tutor at a local college.

13. He worked at the home until 19^th June, although he did not officially leave his employment with MHC until September 5^th.

14. During his brief period of employment at the home Mr Beach made a number of complaints about the home and the staff there.  According to the statement which he made in these proceedings, the substance of his complaints against the home was as follows: he alleged that a resident had not had not been referred to have his walking aid re-assessed for over four years; that he himself had referred a resident with a broken leg to A&E and that the problem had not been picked by staff for up to three days before he noticed it; that blood tests were outstanding for a number of residents; and that staff had neglected to arrange medical treatment for a resident’s skin complaint. He took his complaints to the Nursing and Midwifery Council (NMC), to the police, to MHC and to Commission for Social Care Inspection (CSCI).  He also complained to MHC about two members of staff who, he said, had been stealing food meant for residents.

15. Care staff at the home, working under Mr Beach’s supervision during his shifts, also made a number of complaints to the home manager, Paul Satterthwaite, about him. These allegations were later summarised by MHC under the headings “Professional Misconduct”, “Bullying and Harassment” and “Behaviour that could be constituted as abuse of residents.”

16. Mr Beach claimed that the complaints about him were triggered by his complaints against staff, and that they were either exaggerated or plainly untrue. MHC has denied this and they claim that on the contrary, some of Mr Beach’s complaints against them were in response to the allegations they made about him. 

17. MHC arranged three investigations: Maureen Barff, care practice co-ordinator at a different MHC home was to look into Mr Beach’s allegations against Mr Sattherwaite; Joyce Eccles, manager of another of their homes, was to deal with Mr Beach’s allegations against care staff at the home; and Steven Harmer, who was also a manager at an MHC home, was to deal with the allegations against Mr Beach. During the course of this investigation Mr Harmer became concerned that the reports of Mr Beach’s behaviour towards residents raised issues about vulnerable adults and MHC therefore decided to refer the matter to the local Vulnerable Adults Team.

18. The team decided to investigate the referral and held two Executive Planning Meetings. The first was on 24^th July 2007 and the second was on 29^th August 2007. By the time of the first meeting the team had also received a copy of an anonymous complaint about the home, which had been passed on them by CSCI. Thus the team’s investigations involved both the allegations in relation to Mr Beach and also the anonymous complaints about the home.

19. Following the second meeting the team decided that no further meetings were required. They made some criticisms of the home but felt that such concerns as they had had been satisfactorily dealt with. So far as the allegations in relation to Mr Beach were concerned the minutes record that the Head of Adult Care “reiterated that PoVA need(ed) to be notified of issues and that this should be done as soon as possible.”

20. By this time the internal investigations conducted by MHC into Mr Beach’s complaints against the manager and staff of the home had been concluded and they had decided to take no further action against them. However, the allegations against Mr Beach ultimately led to disciplinary proceedings and he was dismissed for gross misconduct on September 5th 2007.

21. Mr Beach made a number of complaints about the investigation and dismissal process and the way he was treated by MHC. These complaints were the subject of an application he made to the Employment Tribunal as a result of which his claim was settled following negotiations between the parties and without recourse to that tribunal.

22. Following Mr Beach’s dismissal MHC referred the matter to PoVA who instituted their own investigations.  These resulted in Mr Beach’s name being included on their list and it is against this decision that Mr Beach now appeals.

23. On 19^th March 2009, shortly before that listing was confirmed, Mr Beach wrote a series of letters to PoVA referring various people to them who, in his opinion posed “a risk to vulnerable adults”. The people referred by him were: five of the care assistants at the home; the manager; Kerry Robinson, the company operations director of MHC; and a case officer from the NMC whose behaviour to him showed, he claimed, “a persistent malice and vindictiveness.”  All these referrals were accompanied by lengthy statements setting out his reasons.

24. None of the bodies to whom Mr Beach reported his various allegations have, as yet, taken any further action in respect of them.

25. On 1^st January 2008 the NMC found that Mr Beach had made a false statement on his application for a post-graduate diploma, claiming that he had a lower second class degree when in fact he has a third class degree. They dealt with the matter by way of a three year caution. Mr Beach told us that he did not accept their finding and was planning to appeal against it.

26. Statements were also prepared in relation to further proceedings against Mr Beach brought by the NMC in relation to the events at the home, but it appears that no action has so far been taken in relation to these proceedings.

The allegations against the appellant relied on by the respondent in respect of misconduct 

27. We heard evidence from Kerry Robinson, MHC’s operations director, Paul Satterthwaite, the manager at the home, and five care assistants who worked there with the appellant, namely Helen Murray, Sharon Weeks-Todd, Yvonne-Marie Grant, Natalie Pickles and Isla Crompton. The evidence of the care assistants included detailed accounts of six incidents they said they had witnessed and it was the respondent’s case that each of these incidents was evidence of the appellant’s misconduct.

28. The first incident

This was witnessed by Helen Murray. She began working at the home in 2003. She told us that one of the residents, RS, used to like to have his meal brought to him in his room. On the day in question Mr Beach said he was not happy about this and went upstairs to RS’s room to bring him downstairs to eat in the dining room. She told us that RS told Mr Beach that he did not want to come downstairs but that Mr Beach had pulled him out of his chair by the arm and taken him downstairs against his will, holding on to his jacket as he did so, with RS holding on to the stair rail and trying to pull back. RS had twice tried to escape into bathrooms on the way to the stairs, but each time Mr Beach had blocked the door. According to her Mr Beach held on to him by his jacket, took him into the dining room and sat him down at a table. She said that as soon as Mr Beach had gone away RS had left the dining room.

29. In his evidence Mr Beach said he did not remember the incident. However, he thought he might well have gone to RS’s room to ask him to come downstairs because there were concerns that when he ate in his room he would throw his meal down the toilet rather than eating it.  He said that RS had a history of aggression so he would not have risked making him angry by forcing him to do something against his will, and that Helen’s Murray’s account was exaggerated and incorrect. In any case, he told us, none of this could have happened because at that time he would have been elsewhere in the building, giving out medication.

The second incident

30. This concerned the same resident, RS. It was witnessed by Helen Murray and Natalie Pickles. Helen Murray said that RS often refused medication. At breakfast time on that day RS was in the dining room eating his cornflakes, as he usually did. Mr Beach had approached him, holding his medication in a pot and had offered it to him. RS had refused it, shaking his head, whereupon Mr Beach had taken the spoon from RS’s cereal bowl, put the tablets into it and tried to push the spoon into his mouth. She described RS leaning back to avoid taking the tablets, with Mr Beach leaning forward from the other side of the table to push the spoon into his mouth. RS then spat the tablets into the cornflakes bowl. Mr Beach then fished them out and offered them again, but RS pushed back his chair and left the room.

31. Mrs Pickle’s account was slightly different. According to her Mr Beach had first tried to put the tablets into RS’s mouth with his hand. RS had pushed him away and the tablets had fallen into the bowl of cornflakes. Mr Beach had then picked up the spoon, fished out the tablets and, holding RS’s hand down on the table to stop him pushing the spoon away, had tried to force the tablets into his mouth. RS had then pushed his chair back from the table and left. She too described Mr Beach as leaning over from the other side of the table with the spoon to give the medication.

32. The incident had been reported to the manager, Paul Satterthwaite. He told us that when he had spoken to Mr Beach about it he had denied it. He became “agitated” and “quite forceful” and soon changed the subject to his own allegations of bad practice at the home.

33. In his evidence to us Mr Beach denied that he had used force. He described in some detail how he had crouched beside RS to offer him the tablets on a spoon. He said it would have been impossible for him to have leaned over the table to give them as the table was too wide. He regarded it as a “humane” way to offer tablets.  He agreed that RS had refused the medication and said that he had moved away from the spoon, put his hand up and “caught my hand” and that the tablets had then fallen into the cereal bowl. Mr Beach had put them back on the spoon, and offered them again. When RS once again refused them, he had removed the tablets and disposed of them.

34. His case was that he had offered the medication and encouraged RS to take it and that when it had been refused he had accepted that refusal. Once again he said he would not have risked antagonising a man known to be aggressive.

35. Shortly before the conclusion of the hearing it emerged that the medication concerned was a painkiller to be given as and when required. He said that RS had “indicated he was in pain.” He told us that the drug was cheap, so he was not worried about wasting it.

The third incident

36. This concerned KB, a resident who suffered from epileptic seizures. Because of this he wore a protective helmet, except when sleeping or sitting down. KB accepted and, we heard, appreciated the re-assurance provided by the helmet at appropriate times. The incident was witnessed by Helen Murray and Natalie Pickles.

37. Both said that KB had had a seizure in the dining room and was in a confused state. They  had put on his helmet, put him a wheelchair, taken him back to his room and lain him on his bed, accompanied by Mr Beach who was the nurse in charge. Over the course of the next hour KB had repeatedly asked for the helmet to be removed. He was unable to lie down flat on his bed. Mrs Pickles said: “he kept buzzing and when we went he said he was uncomfortable.” Each time they asked Mr Beach for permission to remove it and he kept saying no, without further discussion. Eventually, he had allowed them to take it off whereupon KB had fallen asleep almost immediately.

38. Mr Beach said that this resident would prefer to sleep sitting up, propped up on pillows, so the helmet would have been no great inconvenience to him. Helen Murray and Natalie Pickles said that KB always lay down to sleep, with his helmet removed.

39. At the hearing Mr Beach said that the seizure had, in fact, taken place on KB’s bed and that  he had been taken to his room in anticipation of the seizure because it had become clear that one was imminent. This was the first time Mr Beach had suggested that the seizure had taken place on the bed rather than in the dining room. He said that it was necessary for LC to keep the helmet on because there was a risk that he would have repeated seizures. He told us that during that hour he had repeatedly gone into KB’s room to speak to him and to explain that he needed to keep the helmet on for his own safety. He said that each time KB had accepted his explanation, and agreed to keep the helmet on.  He also said that if KB had lain flat and had another seizure he might have vomited and choked.

40. His response to the allegation was, therefore, that the decision to keep the helmet on was the right one and that KB had consented to it.

The fourth incident

41. This was witnessed by Sharon Weeks-Todd, Isla Crompton, and Yvonne-Marie Grant. Mrs Grant had been working at the home since 2003.

42. Another resident, RB, had come into the dining at room at lunchtime and had a drink. He then left the table and tried to leave the room. Mr Beach asked Mrs Grant, “Is he not stopping for lunch?” She told him that this was usual for RB but Mr Beach had brought him back to the table and indicated to him that he should eat his lunch. The three witnesses were in different parts of the room and not all of them saw what happened next. Mrs Grant, however, said she had had a good view of what had happened and according to her RB had then eaten a couple of mouthfuls of food and left.

43. There were some discrepancies between the three accounts. For instance, Isla Crompton said that Mr Beach “flew out of the door after him” and “frog marched” RB back to the table. The other witnesses described the incident in less dramatic terms. However, all described RB as visibly upset by the incident, to the extent that they felt it necessary to speak to him afterwards to see if he was alright.

44. Mr Beach said that there were concerns about RS’s weight and so it was important for him to eat. He had simply tried to encourage him to do so and had not pressurised him in any way.

The fifth incident

45. This concerned LC, a resident who suffered from incontinence. Because of this it was considered important for him to have a bath every morning, to prevent his skin from becoming sore and uncomfortable. His care plan records that “due to (his) incontinence and reduced dexterity, as well as his unsteady gait, he needs assistance with his personal hygiene/dressing/undressing needs....Staff to ensure that (he) bathes every morning on rising...staff to report any change or redness to skin tissue.”

46. According to Sharon Weeks-Todd she had gone to ask LC if he was ready for his bath that morning and he had asked her to come back in half an hour. When she returned he was already dressed. She said he was soaking and his bed was soaking and he needed a bath. He said that Mr Beach had told him to get up, get dressed and come downstairs.

47. She said, “I asked him if he’d like me to help him with his bath and he said yes. I went into his bedroom and started running the bath.”

48. The following morning Yvonne-Marie Grant was on duty. She said she that as she was helping LC with his bath and talking to him he became tearful. He told her that the previous day Mr Beach had gone into his room and told him to get up, get washed and come downstairs.

49. Mr Beach said that none of this could have happened as he would have been giving out medication at the time and would not have gone into LC’s room.

The sixth incident

50. Another of the residents, IW, was using an inhaler. Isla Crompton said that he had always managed it himself, without any problems. However, on this occasion Mr Beach had told him “that he was using it far too much”. He had spoken in a loud and intimidating way and IW had been frightened and had left the room.

51. Mr Beach said that he had seen IW in the lounge in a distressed state. He was “sweating, trembling”, his “pupils were dilated” and his breathing was rapid and shallow. IW had admitted that he had taken twice the recommended dose of medication and said that he had thought that this would be more effective. Mr Beach had pointed out to him that in fact he had overdosed and that this was causing his distressing symptoms.  He said he had taken his blood pressure and pulse and counted his breaths. He had then escorted him back to his room and stayed with him for a while.

Other Allegations

52. There were also a number of allegations about Mr Beach’s behaviour towards other staff at the home.

53. Some of the witnesses said that he had asked them out, even though they were married or in a stable relationship and they had found this offensive. There was also a report of exchanges, in front of residents, involving obvious sexual innuendo between him and another member of staff, and they regarded this as inappropriate and unprofessional.

54. They all reported feeling intimidated by him and said that he shouted. Helen Murray described him as “unapproachable” and said that “it had to be his way.” When asked to explain why they had not reported their concerns about the incidents described above they all said that this was because they were afraid of him. Natalie Pickles said that he had “always been alright with me.” However, she had not reported her concerns because she was worried that he would make her feel “uncomfortable” and “make our lives hell...humiliate us.” She said that people did not like being on his shift.

55. We were told that he would frequently criticise Paul Satterthwaite to other members of staff. He had claimed that Mr Satterthwaite had deliberately made it impossible for him to access the computer so that when he needed to consult a patient’s records at the weekend in an emergency he had been unable to do so. According to Mr Satterthwaite he had suggested that “I had things hidden on the computer which I shouldn’t have.” Mr Satterthwaite agreed that there had been problems with the computer, but said that he was not responsible for them, and he told us that in any case there were paper records that Mr Beach could have consulted.

56. Mr Beach had also questioned Mr Satterthwaite in front of staff, about the way in which he dealt with petty cash, making him feel uncomfortable.

57. Yvonne-Marie Grant said that on one occasion Mr Beach had “yet again” criticised Mr Satterthwaite. She said she had told him she was “sick of hearing him picking Mr Satterthwaite to bits...I stuck up for Paul and he accused me of....I don’t know what.” He had called her a “grass” and after that, every time he passed her in the corridor he would make a hissing noise like a snake. He would say, “Watch out, there’s a grass about”. She said “He made my life awful at work”.

58. In a letter to Kerry Robinson, written prior to his disciplinary hearing, Mr Beach referred to Mr Satterthwaite as “the creature at K”. He told us that he had described him in this way because he was angry at the time.

Findings

59. We have given careful consideration to Mr Beach’s claim that the allegations against him were motivated by malice and are therefore untrue, or exaggerated. In particular he suggested that they were in retaliation for the fact that he had reported two of the care assistants for theft of residents’ food. However, we note that only one of the care assistants who gave evidence to us had been accused of theft.

60. Nevertheless, there were clearly a number of members of staff who disliked him, and his constant criticisms of the home and its staff would no doubt have made him unpopular. We therefore took into account the possibility that witnesses had gossiped together about him and colluded in their evidence, or that they had exaggerated, so that minor events had been blown up out of proportion. We noted that there had been significant delays before some of the allegations made by the care staff were reported to more senior members of staff. Mr Beach also pointed to a number of discrepancies in the accounts given by different witnesses which he considered demonstrated them to be untrue.

61. However, having heard the witnesses give their evidence we were in no doubt that the incidents happened more or less as they described them. Yvonne-Marie Grant’s evidence particularly impressed us. She described her reaction to the difficulties she was experiencing: “When I got home I was very upset. I didn’t know what to do. I’m a care assistant. He’s a nurse. I knew I couldn’t work in such an environment. My daughter said, go to your line manager. You’ll have to tell the truth. Say you were shouting, which I was. He was raising his voice to me and I was raising mine to him. After speaking to my daughter I felt a lot better...I reported it to Paul.  I told him everything.” When asked if she had spoken to any other members of staff before making the complaint she said she had only spoken to her daughter who did not work at the home. We found her evidence truthful and convincing.

62. Taking all these things into account we are not persuaded that there was any significant degree of collusion amongst the witnesses. Where there were discrepancies in their accounts we found that this was more likely to indicate that they had not, if fact, colluded. Otherwise they would all have told identical stories. In any event, any such discrepancies were minor ones and in all significant respects their evidence was consistent.

63. We found Mr Beach’s evidence unconvincing. He dismissed the allegations against him as implausible, exaggerated or invented. He said that two of the incidents could simply not have happened because he was elsewhere at the time. This would imply that they were total fabrications which we find most unlikely.

64. Crucial aspects of his evidence only emerged at a late stage, in response to questions put to him, for instance, his evidence that KB’s seizure occurred after he had been lain on his bed, rather than prior to that whilst he was still in the dining room. Similarly, he did not say that he had tried to give the medication to RS because he had appeared to be in pain until it emerged, at the very end of the hearing, that the tablets in question were painkillers, to be used only as required. His evidence in relation to KB, that he had repeatedly gone into his room to persuade him to keep the helmet on and that KB had agreed to this, was also introduced at a late stage. None of these things appeared in his statement or were put to the witnesses. We formed the view that he had, at times, invented his evidence to exonerate himself.

65. His case, both as presented through the cross examination of the respondent’s witnesses and, through his own evidence to us, concentrated disproportionately on his sense of grievance against his employers and colleagues at the home, and what he considered to be the shortcomings in the care provided to residents.

66. In the light of these general findings we make the following specific findings.

67. The first incident (see paragraph 18 above).

Helen Murray was the only witness to this incident. However, her account is detailed and convincing. Mr Beach’s claim that he was elsewhere at the time implies that it is a complete fabrication, something which we do not accept. We find the allegation proved.

68. The second incident (see paragraph 20 above)

There were two witnesses to this incident and their evidence is broadly consistent. Both were clear that they had seen Mr Beach trying to give RS medication against his will. Mr Beach himself admitted that he had fished the medication out of the cereal bowl with a spoon and had held down RS’s hand to stop him pushing it away. This was clearly an attempt to coerce, rather than to encourage or persuade. We find the allegation proved.

69. The third incident (see paragraph 26 above)

There were two witnesses to this incident. Both said that KB repeatedly asked for his helmet to be removed and complained that he was uncomfortable. Mr Beach’s claim to have obtained his consent by explaining the need for the helmet on a number of occasions is implausible and was only made at a late stage in his evidence. KB was, by all accounts, confused and exhausted and uncomfortable after his seizure and therefore unlikely to be able to cope with discussions about the need to keep the helmet on. In any case, he repeatedly told two care assistants that he wanted it to be taken off. We find the allegation proved.

70. The fourth incident (see paragraph 31 above)

There were three witnesses to this incident. Although there were some discrepancies in their accounts all were clear that RB had wanted to leave the dining room and that Mr Beach had brought him back to eat a meal. Most significantly, RB was upset by what had happened and all the witnesses were sufficiently concerned about him to speak to him afterwards to check that he was alright. If Mr Beach had only been encouraging him to eat, rather than pressurising him against his wishes, RB would not have been upset. We find the allegation proved.

71. The fifth incident (see paragraph 35 above)

Two witnesses gave separate accounts about this incident. The first concerned the incident itself, that is, the allegation that Mr Beach had told LC to dress himself and come downstairs when according to his care plan he should first have been helped to have a bath. The second took place the following day when LC spoke to a different care assistant about his distress over what had happened the previous day. Mr Beach said this simply could not have happened as he was elsewhere at the time, but it would have required an extraordinary degree of collusion and untruthfulness for these two witnesses to have cooked up such a story together. We find the allegation proved.

72. The sixth incident (see paragraph 40 above)

Isla Crompton was the only witness to this allegation. In her oral evidence it was clear that she was angry and upset with Mr Beach and her statement also described the fourth incident using stronger language than the other witnesses. We accept that Mrs Crompton may have genuinely felt his behaviour towards IW on that occasion to be intimidating. However if, as Mr Beach claims, IW had overdosed on his medication and was in distress, it would have been understandable for him to take the action he did, although we would have expected his account of such a serious incident to have been supported by written records. Nevertheless, having carefully weighed the evidence, we have come to the conclusion that the respondent’s burden of proof has not been discharged in respect of this allegation and accordingly we find that it has not been proved

73. All the care assistants who gave evidence to us spoke of Mr Beach’s bullying and intimidating behaviour towards them. Their accounts were consistent and plausible. We see no reason to disbelieve them. Yvonne-Marie Grant’s account of being hissed at and called a grass was particularly unpleasant behaviour. We were also persuaded by the evidence that Mr Beach tried to undermine the authority of the manager, by criticising him both behind his back and in front of other members of staff, and by making unsupported allegations about him. Although some of the care staff had known residents for far longer than he had, he took no notice of their views. His case was that his professional qualification took precedence over their experience.

Did the incidents constitute misconduct which harmed, or placed at risk of harm, a vulnerable adult?

74. The common theme, in all these incidents, is that Mr Beach overrode the wishes of people who were entitled to expect their personal autonomy to be respected, whether or not what they wanted was thought by a professional person to be in their best interests.

75. RS wanted to eat upstairs, but Mr Beach was not happy for him to do so. He made this clear in a number of ways, including trying to escape into a toilet on two occasions but Mr Beach still took him downstairs. Similarly RS did not want to take his medication and made this abundantly clear to Mr Beach, yet he persisted. Both incidents caused RS to become angry and upset.

76. KB was uncomfortable in his helmet and repeatedly said he wanted it removed. Mr Beach did not allow the care assistants to remove it for an hour, during which time KB would have suffered not only physical discomfort, but also the distress and indignity of his own wishes being overridden. His own frail and vulnerable situation at that time made it impossible for him to do anything about it.

77. LC wanted, and needed, a bath but Mr Beach told him to get dressed and go downstairs. His recollection of the incident made him distressed and tearful.

78. All these incidents demonstrate a pattern of behaviour which showed a lack of respect for residents which they clearly found humiliating, distressing and sometimes frightening. Because of their mental and, in some cases, physical fragility, they depended on their carers and it was therefore of the utmost importance that this vulnerability should not be taken advantage of to override their wishes.

79. All these incidents would have impacted adversely on their mental state and therefore their well-being generally, and would have caused them emotional harm.

80. We find that Mr Beach’s behaviour towards residents demonstrated misconduct which caused harm to these vulnerable adults.

81. Furthermore, the fact that he upset and intimidated care workers, and undermined the manager, meant that there would have been an unpleasant and upsetting atmosphere in the home when he was on duty, and this would also have had an impact on residents and caused them emotional harm.

Suitability

82. Mr Beach has, as we have found, shown a disregard for the wishes and feelings of those in his care and has upset and intimidated work colleagues. He has also shown himself unable to respect the views of other members of his team or to give due weight to their knowledge of individual residents, accumulated, in some cases, over several years. It is clear that the home was an unhappy place when he was on duty. Nevertheless, he continues to claim that he did not do anything wrong and that it was others who were at fault. This lack of awareness or recognition of his own shortcomings means that he is unlikely to change. Thus in our view he has shown himself to be unsuitable to work with vulnerable adults.

83. Accordingly we confirm his inclusion on the PoVA list.

84. The reasons leading to our finding of unsuitability as set out above apply equally to his suitability to work with children and we therefore also uphold his inclusion on the PoCA list.

Additional Issue

85. Paragraph 4.2(b) of the appellant’s closing submissions states that “due to lack of time, there was little or no time for the Appellant to have the benefit of re-examination by his representative.” However, although it was open for his representative to apply for an adjournment on these grounds, we note that no such application was made.

Decision

86. Both these appeals are dismissed.

Andrea Rivers           Tribunal Judge

Denise Rabbetts

Graham Harper

10^th February 2010