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

International Medical Assistance T/A Lifeline

v

Care Quality Commission

[2012] 1966.EA

Before

Miss Maureen Roberts, Tribunal Judge

Mr Graham Harper, Specialist Member

Mrs Christa Wiggin, Specialist Member

DECISION

Heard on 27 June and 17 July 2012 at the AIT Hearing Centre Waggon Lane Birmingham.

Representation:  The Appellant company was represented by Mr and Mrs Morales the sole directors of the company. They gave evidence.

The Respondent was represented by Ms Brunner of Counsel instructed by Ms McCrory solicitor.

The tribunal heard evidence from Mr Andrew Davey Compliance Manager Staffordshire and Stoke on Trent CQC,

APPEAL

1. The Appellant is an independent ambulance provider registered with the Respondent. The Appellant appeals against a decision made by the Respondent on 31 May 2012 under section 31 of the Health and Social Care Act 2008, (HSCA) to impose conditions on the appellant’s registration. The letter was addressed to Mrs L Morales, the nominated individual and clerk to the company IMA trading as IMA Lifeline.
2. The conditions were that (1) the registered person must ensure that Mr J D Morales does not drive in the course of carrying on regulated activities and (2) the registered person must ensure that Mr JD Morales does not have any direct contact with service users in the course of carrying on regulated activities. It is against these conditions that the Appellant appeals.
3. The registered person is the Appellant company. The directors are Mrs L Morales and Mr J D Morales. The Nominated Person is Mrs Morales who has responsibility under the HSCA (Regulated Activities) Regulations 2010 Regulation 5 (the Regulations) for supervising the management of the company and carrying out of the regulated activities. Mrs Morales is also the Registered Manager.
4. At the hearing Mr and Mrs Morales requested that the hearing be conducted in private so as to protect their privacy. The Tribunal decided to make an order, under Rule 26 (3) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, providing for the hearing to be in private.   

The background

5. Under the Health and Social Care Act 2008 (HSCA) private ambulance services were required to be registered from the autumn of 2011. On 25 July 2011 the Appellant applied online to be registered with the Respondent to carry out three regulated activities namely transport services, triage and medical advice provided remotely, treatment of disease disorder or injury, and diagnostic and screening procedures.
6. The application was treated as a transitional application under the Health and Social Care Act 2008 (Primary Dental Services, Private Ambulance Services and Primary Medical Services) Regulated Activities (Transitory and Transitional Provisions) Order 2010.
7. On 6 September 2011 the Respondent undertook a preregistration site visit to assess compliance with the requirements of the regulations. A number of breaches of regulations were identified and notified to the Appellant.
8. On 4 October 2011 the Respondent served a Notice of Decision setting out the conditions of registration together with its reasons in support of these. The conditions related to policies and procedures being in place for safeguarding people at risk and that staff must receive safeguarding training. The registered provider was to ensure that all equipment was serviced and tested. The registrant provider was to ensure that there are recruitment policies and procedures and records. This was to include information as specified in Schedule 3 of the HSCA 2008 regulations including ensuring that all staff had an enhanced CRB check. The registered provider was to ensure that there is a staff induction process in place and that each person employed has a training and development plan. All these conditions were required to be complied with by 1 December 2011.
9. On 31^st of October 2011 Mrs Morales the proposed nominated individual of the Appellant company sent a letter to the Respondent setting out the steps taken by the provider to address the Respondent’s concerns. On 7 November 2011 Respondent issued a certificate of registration. At this stage the Respondent was aware of Mr Morales’ conviction for child pornography offences but not of the full list of convictions.
10.  On the 3 February 2012 a compliance review was undertaken by two inspectors. They found that none of the conditions imposed at the time of registration had been undertaken and that there were ongoing breaches of a number of regulations. By that stage Mr and Mrs Morales were the only employees of the Appellant company.
11. On the 10^th February 2012 Mr Morales contacted the Respondent and was asked to produce copies of his training certificates. He said he would do this on the 13^th February 2012 when he returned from sick leave. On 17 February  the compliance inspector wrote and requested all outstanding certificates that had not been supplied.
12. On the 27^th February 2012 the Respondent wrote to the registrant provider and requested further information pursuant to section 64 of the HSCA 2008 in particular for training information, a CRB check, and clarification regarding driving offences for Mr Morales as required under Schedule 3 of the Act.
13. On 1 March 2012 Mrs Morales contacted the Respondent and it was agreed that the Appellant would have until 5 March 2012 to supply the additional information. On 5 March 2012 Mrs Morales contacted the Respondent to request a further 28 days to be able to forward the information that the Respondent wanted. She said that was due to not being able to locate the documents required because they were in boxes in store.
14. On 4 March 2012 the Respondent contacted the Appellant and requested a meeting. This took place on 21 March 2012. The Respondent further requested that the Appellant bring all the outstanding documents to that meeting. On 21 March 2012 Mr and Mrs Morales attended the Respondent’s offices and copies of various certificates were provided. However, Mrs Morales accepted that she had not applied for a CRB check for Mr Morales.
15. On 29 March 2012 the Respondent received an e-mail confirming that the process to obtain a CRB check had now begun. The tribunal had a print out from a company Disclosures.co.uk, which gave the date of 13-04-2012 as the start of their involvement.
16. By this time it had come to the attention of the Respondent that Mr Morales had convictions for a number of criminal offences and had been disqualified from driving.
17. On 20 April 2012 the Respondent served an urgent section 31 notice decision on the Appellant and imposed the two conditions that are outlined above.
18. The Respondent is seeking to cancel the Appellant’s registration but that is not a matter that is before this tribunal.
19. Following the imposition of the conditions under section 31 of the HSCA the Respondent has received further information from the Staffordshire Police. On 29 May 2012 the Respondent received details of Mr Morales’s convictions and a number of matters of which he had been charged but found not guilty. On 4 July 2012 the tribunal office received a letter from Staffordshire police outlining further information about matters on which Mr Morales had been charged but found not guilty.

Matters that are not in dispute

20. At the beginning of the first day of hearing the tribunal went through the letter of 29 May 2012 listing Mr Morales’ convictions and checked with him whether he accepted the matters listed. Mr Morales said that he accepted all the convictions.
21. The list shows that Mr Morales has 21 convictions since 1965. These include convictions for burglary and theft (2), theft  including theft by employee (7) making a false representation to obtain benefit (1) criminal damage (2) kidnapping (1) forgery (1) perjury (1) obtaining services by deception(1) and most recently in 2005 distributing indecent photographs, making indecent photographs and possessing an indecent photograph of children for which he received a custodial sentence.
22. He was charged with assault occasioning actual bodily harm in 2004, indecent assault/rape in 2006 and failure to comply with notification requirements in 2012. He was found not guilty of these matters.
23. It is fair to note that he wished to give some explanation about some of the convictions as to why he had been found guilty or pleaded guilty but nonetheless he accepted the accuracy of the list provided to the tribunal.
24. He also accepted that he had 36 points on his driving licence and that on 24 February 2012 he had been found guilty of driving whilst disqualified, and disqualified from driving because of totting (points). He further said that the disqualification had been suspended pending his appeal.
25.  The Appellant accepted that some very important aspects of the information, provided by it, on the internet application for registration had not been correct and the Appellant has declared itself compliant in some areas where this was in fact not the case.  Also the Appellant accepted that the application for Mr Morales’ CRB check had not been made until 29 March 2012.

The Law

26. The conditions, which are the subject of appeal were imposed under section 12 (5) (a) and section 31 of the Act. Section 31 allows the Respondent to require that any condition takes immediate effect if , ‘ the commission has reasonable cause to believe that unless it acts under this section any person will or may be exposed to the risk of harm ‘
27. The tribunal accepts that the test for the tribunal is whether at the date of its decision it has reasonable cause to believe that unless the conditions are imposed urgently any person will or may be exposed to the risk of harm.
28. The burden of proof is on the Respondent. The reasonable belief is to be judged by whether a reasonable person assumed to know the law and possessed of the information available would believe that a person might be at risk if the conditions did not take immediate effect.
29. The tribunal was directed to the HSCA (Regulated Activities) Regulations 2010 and regulations 20 and 21, which impose duties on service providers to employ fit individuals and make checks and maintain records. The tribunal also looked at schedule 3, which sets out the information, which a service provider must obtain about employees which includes an enhanced CRB. Section 64 of the Act allows the Respondent to require the production of documents.

The issue

30. In the light of Mr Morales’ convictions, are the conditions justified? Further, in imposing the further conditions in the context of the Appellant’s non-compliance with earlier conditions, is Mrs Morales able and willing to obtain and provide information about Mr Morales, to assess the risks posed by Mr Morales and to address these risks to ensure the safety of service users?

Evidence

31.  The tribunal had the benefit of reading the bundle, which included witness statements from the Respondent’s witness and a statement from Mrs Morales. The tribunal also had a case summary from the Respondent, the correspondence, notes of meetings and the notices that had been served on the Appellant. For the Appellant, the tribunal had a number of references and copies of certificates obtained by Mr Morales.

32.  Mr Davey on behalf of the Respondent gave evidence regarding his involvement with the Appellant company. He confirmed the chronology of visits and checks with the Appellant and that the original conditions had not been met and that there continued to be breaches of the conditions and further concerns throughout 2012.

33.  The Respondent was particularly concerned about the absence of an enhanced CRB check for Mr Morales. The Respondent was informed that the Appellant had approached an agency to organise the CRB checks however this had not occurred until the end of March 2012.

34.  In Mr Davey’s evidence he pointed out that the convictions included most recently in 2005, convictions for distributing indecent photographs of children, making indecent photographs of children and possessing an indecent photograph of a child. This comprised twenty-one offences for which, he was sentenced to 30 months imprisonment, 2 years extension of licence period, Sex Offenders Notice indefinitely and disqualified from working with children for 20 years.

35.  The list also included obtaining services by deception for which Mr Morales received a prison sentence of three years in 1988. In 1987 he had a conviction for perjury and attempting to pervert the course of justice, which had resulted in six months imprisonment. In 1981 he had a conviction for criminal damage and kidnapping for which Mr Morales had received a prison sentence of six months. As noted above, there were other convictions for offences of criminal damage theft and fraud.

36.  In Mr Davey’s evidence he stated that the convictions raised concerns about the risks, physical psychological and sexual to clients who would be vulnerable adults and possibly children.

37.  There was an issue regarding Mr Morales’ lack of medical training and while some certificates had been produced they were of recent acquisition and other certificates referred to in interview had not been produced to the Respondent. There was no evidence of training requirements being set by the service provider.

38.  The Respondent had concerns that Mr Morales was the dominant partner in the Appellant company and that Mrs Morales, as the named nominated person of the Appellant company, would not be willing or able to enforce regulatory requirements in respect of Mr Morales.

39.  The Respondent produced a statement from a process server who on 9 May 2012 had been instructed by the Respondent to serve papers on Mrs Morales. He said when he attended to serve the documents, Mr Morales was in the office and became agitated and did not want to take the package.

40.   The process server struggled to get out of the building and off the site. He stated, “he kept pushing me he followed me and tried to prevent me getting out of the security gate.. He followed me down the street, hitting me with the package to try and get me to take it and throwing it in the gutter but then picking it up again when I walked on.”

41.  The Respondent stated that there was a record of angry ‘phone calls to its office. In its view this behaviour with the Respondent’s staff and a process server showed that Mr Morales had issues with the control of his temper and the way that he relates to professionals.

42.  In conclusion Mr Davey said in his view there was a risk to service users being transported by Mr Morales because of his driving convictions. Further there were risks associated with physical psychological and sexual harm because of the seriousness of the convictions that had been disclosed by the police. A number of the offences such as kidnapping and child pornography would now lead to an automatic bar preventing Mr Morales from working with children and vulnerable adults.

43.  Mr Davey noted that there were convictions for financial offences. Further, the only certificates produced in respect of medical training had been done on-line. Other certificates which Mr Morales said he had, had never been produced to the Respondent.

44.  The Respondent had been informed of other charges, harassment rape and attempted rape and an assault, which have not resulted in convictions. Mr Davey took the view that these formed part of his risk assessment. He stated that Mr Morales’ criminal convictions were the central issue in his risk assessment.

45.  The tribunal heard evidence from Mrs Morales. As noted above she is the nominated individual and the registered manager. It is her responsibility to supervise the management of carrying out the regulated activities.

46.  Mrs Morales confirmed that the registration had been completed on-line and that at the time of application the company had one member of staff who had subsequently left the company. She said on more than one occasion that the reasons for the delay in getting the CRB checks were because she knew her husband and his convictions, that she had too much work and it was difficult to make CRB checks.

47.  She confirmed that she and her husband were the sole directors and now the sole employees of the company. She explained the work that the company did as a private ambulance service providing transport and responding to calls from service users at home. She accepted that as the nominated individual she had responsibility for complying with regulations although it was not evident that she had seen all the regulations or Schedule 3 of the Act, before she completed the application.

48.  She stated that the service was intended for adults and not children although, on the application it stated that the service will be provided to the whole population. She accepted that the Appellant had not correctly filled in the application form in July 2011 for example stating that it had CRB checks for staff when it did not.

49.  She said that she had known her husband for 25 years and knew about his convictions and the charges brought against him, which had not resulted in a conviction; she said she had been in court when these proceedings had taken place.

50.  When she was asked what steps she had taken to check the legal position and the risk factors for Mr Morales she responded that she knew him and his standard of work. She said that she had spoken to the probation officers who had confirmed that Mr Morales was on the sex offenders register but that the only restriction concerning his work was that he should not work with children.

51.  Mrs Morales was taken through the conditions being imposed on the company in respect of training, staff checks, the serving and checking of equipment and gave an explanation that some of these matters have now been addressed. She accepted that no CRB check had been obtained for Mr Morales at the time of registration and that the application for that check had been made through an agency company at the end of March 2012.

52.  She said that a risk assessment had been carried out and that she had decided that Mr Morales would have an escort with when he went to certain clients.

53.  With respect to his driving, Mrs Morales said that she knew he had 36 points on his licence although she had never seen his licence. She also knew about his previous convictions and pointed out that they were a long time ago. She did not think they were relevant to his ambulance work. As far as she was aware, the points on his licence were in respect of speeding offences when driving an emergency vehicle displaying a flashing light.

54.  Mr Morales gave evidence in response to questioning from the tribunal and counsel for the Respondent. He stated that there was no basis for the concerns expressed by the Respondent. In his evidence he said he did not pose any of the risks that had been mentioned.

55.  He stated that in respect of the driving offences all the points related to his refusal to give information about the identity of the driver of a vehicle which had been caught on camera speeding. He presented a letter from Staffordshire police explaining the procedure in respect of vehicles displaying a blue light in that they would not be routinely issued with speeding notices if they were emergency vehicles. It was Mr Morales’ evidence that although he had been disqualified from driving and found guilty of driving whilst disqualified this was under appeal and that he would be successful in showing that he had been driving a private ambulance in an emergency situation and that therefore the points would be removed from his licence.

56.  With respect to possible physical and psychological risks of his working with service users and the Respondent’s concern about the convictions for kidnap fraud and perjury, Mr Morales said the matters were old and for example the conviction for kidnap had arisen from  a domestic argument that got out of hand. He said he had pleaded guilty because he did not want his first wife to go through the ordeal of giving evidence.

57.  Mr Morales acknowledged that he was sometimes very forthright in his manner but said he only got agitated or angry with people when they were not doing their job properly.

58.  With reference to potential sexual harm to service users he stated that following the child pornography convictions he was restricted and was not to work with children. He said there was no restriction in respect of his working with adults.

59.  With reference to the allegations of a rape/attempted rape which had proceeded to the Crown Court for trial. Mr Morales was found not guilty of this offence. He said that at the trial the victim had been disbelieved. He said that he had discussed the issue with his wife and that is they had agreed that he would not go to some clients on a callout if for example they appeared over reliant on him or needy.

60.  With respect to financial abuse he acknowledged that he had old convictions in respect of fraud and deception but that he did not have any financial responsibility in the company and did not handle any service user money.

61.  It was his view that he was doing nothing wrong as long as he did not work with children. He pointed to a number of references which had been provided which complemented the company on their services and their help to a number of clients. He stated that there had been no complaints about the company or its service.

62.  Mr Morales considered that the Staffordshire police are biased against him. For example, this was his view in respect of the matters that had been brought against him which had not led to a conviction.

63.  Mr Morales on behalf of himself and the Appellant company,  stated that he had never been a risk to clients. He said his private life and his convictions have never affected his work or the assistance provided to clients. He accepted that he was an outspoken man and said that he would not let other health professionals fail to do their duty. He said that he wanted to continue with his work and that he would not let Respondent or his wife down.

64.  He explained in his evidence that the 36 points on his driving licence were all related to the issue of whether emergency vehicles could break the speed limit. He was confident that the points and the resulting disqualification would be overturned on appeal. He said that there was nothing detrimental in his driving that would affect service users. He was asking CQC to meet him halfway and conduct a constructive conversation with him.

Conclusions and Decision

65.  We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us at the Hearing.  We also took account of the legal provisions under the Health and Social Care Act 2008 and relevant Case Law. 

66.  The Appellant is registered in the three areas related to the provision of a private ambulance service, which includes providing transport, triage and medical advice remotely, together with diagnostic provision and treatment.

67.  The tribunal accepts the registration was granted on receipt of an on-line application that was not accurately completed by Mr and Mrs Morales on behalf of the Appellant company. The Appellant stated that it had certain documents, which it had never produced. The CRB check was requested by the Appellant at the end of March 2012 some six months after registration. Despite requests from Mr Morales and the tribunal it was still not available at the second hearing date.

68.  The tribunal concluded that the contents of the enhanced CRB check will show the convictions as listed in the letter from Staffordshire police dated 29 May 2012 and the further information and background as described in the letter from the Staffordshire Police dated 12 July 2012.

69.  Mrs Morales said that she had never seen Mr Morales’ driving licence. She accepted that Mr Morales had 36 points following police speed camera incidents. The driving licence has not been produced either as an original or a copy to the Respondent or the tribunal.

70.  The Tribunal accept that Mrs Morales has only conducted a risk assessment by speaking to probation officers. The tribunal accept that Mr Morales is the dominant partner in the relationship and it is evident that Mrs Morales has not conducted any objective risk assessment in respect of either Mr Morales’ driving or the risk of physical,financial, psychological or sexual matters in respect of service users being attended by Mr Morales.

71.  The Respondent made it clear that it was not saying that Mr Morales has been a risk although there had been a number of safeguarding issues raised. Its submission was that in the light of the convictions and lack of risk assessment of Mr Morales, service users, ‘may be exposed to the risk of harm’. In its submission Mrs Morales had taken no steps to address the possible risks in respect of the information that she had.

72.  The tribunal notes that there were a number of occasions when Mr Morales was difficult and argumentative at the hearing. He argued with the tribunal about its decisions. He persistently interrupted his wife when she was giving evidence to the extent that he was reminded of the tribunal’s powers under Rule 26 of the tribunal rules that he could be excluded from the hearing if he continued to interrupt.

73.  At this point the tribunal took a short break and requested a security officer attend the court. He did so and remained in court for the rest of the hearing. Subsequently Mr Morales left the hearing for approximately 15 minutes. The tribunal appreciates the stress that a hearing places on parties and while Mr Morales was demanding that his view be heard, this is seen in the context of the tribunal hearing. We conclude that Mr Morales is quick tempered and aggressive, a fact that was confirmed by his behaviour towards the process server.

74.  The tribunal notes that Mr and Mrs Morales have provided this service since 2002. The evidence that Mr Morales has a history of serious convictions is not in dispute. Some of the offences are historic but the most recent conviction in 2005 is for very serious offences involving child pornography which led to a prison sentence of thirty months with a 2 year licence and that would, had they occurred under current legislation, have led to an automatic ban from working with children or vulnerable adults.

75.  His convictions also show that he has been disqualified from driving and driving while disqualified. Tribunal appreciate that these matters are under appeal but the very fact that he failed to comply with requests for information about the driver of the vehicle or resolved the matter before accumulating 36 points when his livelihood depends on being able to drive appears unreasonable and unprofessional.

76.  Mr Morales presents as a persuasive and forceful man. He is evidently the controlling partner in the business. The tribunal concludes that he does not accept or perceive that there could be any reason for concern or that he might be a risk as a result of his convictions.

77.  He falls out and has conflicts with regulatory authorities generally: the Respondent, a GP, paramedics, the probation service and the police.

78.  There is a relatively recent incident involving the process server as noted above. The tribunal accepts that Mr Morales acted angrily and potentially with aggression.

79.  He does not appear to have an understanding of conciliatory behaviour or working things out in a reasonable way, particularly with people who are making regulatory requirements of him.

80.  The tribunal decide that the conditions are justified in the light of Mr Morales’ convictions and our conclusions above. Further, Mrs Morales gave her evidence based on her knowledge, she is the nominated person, however it was evident that she was not the main person running the business and was not able to risk assess or impose conditions on Mr Morales.

81.  In the light of the tribunal’s findings and conclusions we accept that under section 31 of the 2008 Act there is a risk that service users ‘will or may be exposed to the risk of harm’ if Mr Morales is not subject to the conditions as imposed by the Respondent in their letters of 31 May 2012.

82.   We therefore dismiss the appeal. 

APPEAL DISMISSED.

Our decision is unanimous

Maureen Roberts

Christa Wiggin

Graham Harper