Upper Tribunal (Administrative Appeals Chamber)

 

A.    The DECISION of the Upper Tribunal is to grant permission to the Appellant to appeal the decision of the Respondent dated 30^th November 2010 to place his name on the Adults’ Barred List.

B.    Having considered the Decision of the Respondent, the Upper Tribunal has reached the view that the Respondent has not made a mistake of law or material mistake of fact on which the decision was made.

C.    The Appeal is dismissed.

D.    The Upper Tribunal DIRECTS that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person, including the Appellant, who has been involved in the circumstances giving rise to this appeal.

 

 

 

Introduction

 

1.     The Appellant started work at QMH elderly care unit as a staff nurse in September 2003. From September 2007, he worked predominantly on night duty on a particular elderly rehabilitation ward. He was dismissed in November 2008 on the basis of alleged misconduct, and he was referred to the Independent Safeguarding Authority (ISA) by the Department of Health on 11^th May 2009.

2.     The Appellant was informed by ISA by letter dated 20^th September 2010 that in the light of the information that it had received, that it was ‘minded to bar’ him from working with vulnerable adults by including his name on the Adults’ Barred List under Schedule 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006).

3.     The Appellant was informed that it found two allegations unsubstantiated, but that it found, on a balance of probabilities, that:

·       [The Appellant] deliberately inflicted pain on CW by pinching his nipples on the night of 3^rd February 2008 and at least one previous occasion;

·       [The Appellant] deliberately inflicted pain on DM by pinching his nipples on a number of occasions

·       [The Appellant] behaved in a strict and authoritarian manner with patients and staff.

4.     The letter stated that in the light of these findings, it appeared to ISA that he had engaged in ‘relevant conduct’ which endangered a vulnerable adult. The letter continued:

“We think it is appropriate to bar you from working with vulnerable adults by including you in the Adults’ Barred List using these powers. This is because the evidence behind the facts in this case gives us significant concerns that a belief that you are entitled to behave in a harmful way to achieve your goals and callousness/ lack of empathy were central to your pinching the nipples of two patients on a number of occasions.”

5.     The Appellant was invited to make representations as to why he should not be barred from working with vulnerable adults.

6.     The Appellant made representations by letter dated 9^th November 2010 written, on his behalf, by his legal representatives, Andrews Angel, Solicitors of 88, High Road, Ilford IG1 1DS.

7.     The letter from Andrews Angel submits that behaviour in a strict and authoritarian manner with patients and staff does not amount to ‘relevant conduct’ as defined in paragraphs 9, 10 of Schedule 3 to the SVGA 2006. The representations state further that even if it were correct to consider such behaviour as ‘relevant conduct’, there is no basis upon which one could properly conclude on a balance of probabilities, that it took place.

8.     With regard to the allegations involving CW and DM, the letter from Andrews Angel states categorically that the Appellant denies all such incidents.

9.     The Respondent sent its Decision Letter to the Appellant on 30^th November 2010. The letter states that, having carefully considered all of the information put before it and his subsequent representations, it maintains, on a balance of probabilities, that the Appellant deliberately inflicted pain on CW by pinching his nipples on the night of 3^rd February 2008 and at least on one previous occasion; that he deliberately inflicted pain on DM by pinching his nipples on a number of occasions; and that he behaved in a strict and authoritarian manner with patients and staff.

10.  The letter then goes on to provide the following reasons for the decision:

“This is because whilst you deny the former allegations and suggest that there were ulterior motives for your dismissal there is no evidence to substantiate this. Furthermore the suggestion that a colleague collaborated to make false allegations against you is not supported by evidence. Also there is no evidence that you reported any physical or racial abuse towards you by the victims in this case. Despite the victims’ confusion of some events they were both very clear with regard to the abusive treatment inflicted by you and the suggestion that close personal care could be confused with this abuse is not accepted. You question whether behaving in a strict and authoritarian manner amounts to relevant conduct. Behaving in such a way as to cause patients in your care to be fearful of you places them at risk of emotional harm which in itself constitutes relevant conduct. The fact that this behaviour was accompanied by the physical abuse of two patients in your care would appear to support the finding that this formed part of the overall relevant conduct. With regard to the case not being pursued by the CPS, the ISA makes its decisions based on the lower standard of proof, balance of probabilities.”

11.  His name was therefore included on the Adults’ Barred List under para 9 read with paras 10(a), (b) of Schedule 3 of the SVGA 2006, as from 30^th November 2010.

12.  By letter dated 24^th February 2011, the Appellant sought permission from the Upper Tribunal to appeal against the Decision of the Respondent. The Appellant filled in Form UT10.

13.  The reasons for appealing are, first, that the decision by the Respondent that the Appellant behaved in a strict and authoritarian manner with patients and staff amounted to an error of law, because such matters do not come within the Act; and secondly, that the ISA was wrong in making the findings of fact that it had made.

14.  By Directions dated 7^th March 2011, the Chair of this Panel issued directions that, to enable the matters to be dealt with as expeditiously as possible, the application for permission would be considered at a “rolled up” hearing. Case management directions were made.

15.  In accordance with these directions, Andrews Angel submitted Detailed Grounds in support of the application for permission and the Grounds of Appeal on 14^th April 2011.

16.  There was a Case Management Hearing conducted by way of a telephone conference on 11^th July 2011. The Respondent was directed to serve on the Tribunal and the Appellant copies of the NMC decision regarding the Appellant; that if the Appellant, as advised, wished to give evidence at the hearing, he was to serve a witness statement no later than 12^th September 2011; and that the Respondent agreed to prepare and serve an agreed paginated bundle, and including a brief chronology. The case was set down for one day to be heard in London on 3^rd October 2011.

17.  At the hearing on 3^rd October 2011, Mr A Richards of Counsel appeared on behalf of the Appellant, and Ms S J Davies of Counsel appeared on behalf of the Respondent. We are grateful to both Counsel for the care that they have given to this case.

18.  The Respondent wished us to watch and hear a DVD, and, because of the technical difficulties involved, some time was lost, and it was not possible to hear oral submissions at the close of the evidence. Accordingly, it was agreed that Counsel would prepare written submissions, exchange these submissions between themselves, in order to enable both to add comments on the submissions from the other side, and to arrange for the submissions to be sent to the Tribunal within 14 days from the hearing date. We are again grateful to both Counsel for their adherence to the timetable.

 

 

 

 

Rolled Up Hearing

 

19.  The first matter that needs to be considered is the nature of a “rolled up” hearing. We are guided by the procedure that the Tribunal adopted in SJB v ISA [2011] UKUT 286 (AAC),  and SB v ISA [2011] 404 (AAC) where the Tribunal followed the approach taken by Sullivan J (as he then was) in The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said

“…I am satisfied that all the arguments open to the Claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the Claimant’s case arguable? I am in a position to determine the substantive application for judicial review on its merits.”

20.  Although we understand that the Respondent does not favour this approach as a general way to proceed (as identified in a letter written by the Treasury Solicitors to the Tribunal dated 29^th September 2011) it is our understanding that Ms Davies was content to proceed on this basis in this case. Indeed, in the written submissions of Ms Davies submitted after the hearing, she states that the Respondent agreed to the hearing on 3^rd October 2011 being conducted in one phase. She wishes to reserve further discussion of this approach for later consideration.

21.  Whilst this Tribunal does not wish on this occasion to deal expressly with details of the issues surrounding a “rolled up” hearing, we draw the attention of the Respondent and any future appellants to the observations the Tribunal made in SB v ISA [2011] UKUT 404 (AAC) which we repeat here.

22.  First, we are mindful of the observations made by Lord Hope in R (on the application of G) v The Governors of X School [2011] UKSC 30, where he said (at para 94)

“The principle, when the question of compliance with article 6(1) of the procedure before professional bodies is being considered, is to see whether they are subject to control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1): Albert and le Compte v Belgium (1983) 5 EHRR 533, para 29; Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208; R(Thompson) v Law Society [2004] 1 WLR 2522. The Upper Tribunal is such a body, and had it been necessary to do so I would have been inclined to hold that any breach of article 6(1) at the initial stage was cured by the opportunity for an oral hearing that an appeal to the Upper Tribunal provides.”

23.  Secondly, we wish to refer to the comment made by Carnwath LJ in Chapple v Suffolk County Council [2011] EWCA Civ 870. Carnwath LJ (who is the Senior President of Tribunals) said: 

“…In granting permission I had in mind the evolving role of the new Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007, which may provide opportunities for more flexible approaches to meeting the needs of particular cases in the interests of the parties. This court has recently emphasised the important role of the Upper Tribunal in developing practice and giving guidance for the specialist tribunals…”

24.  Although Carnwath LJ was dealing with appeals to the Upper Tribunal from the First-tier Tribunal, his approach, in this Tribunal’s view, is of equal relevance in appeals from ISA to the Upper Tribunal. This is particularly the case given that this appeal is one of the first to have reached this stage. Thus it is early days in this jurisdiction, and one should err on the side of caution when considering whether or not to grant permission.

 

Application for Permission

 

25.  The Tribunal, when considering the submissions in this appeal, gave its attention, first, to whether to grant permission. The Appellant denies that he behaved in the manner as set out in the decision letter. In his Witness Statement and in his evidence before us he was adamant about this. This denial, by itself, of course does not necessarily mean that the Appellant’s ground on a mistake of fact is plainly ‘arguable.’ Such a denial may be entirely devoid of merit. But it is the Tribunal’s view, at least on the facts of this case, that the denial by the Appellant, together with the admitted defects in the strength of the evidence, that it is at least arguable that the Appellant has acted upon a mistake of fact upon which the decision was made, even if the Tribunal on the basis of the evidence decides, that the Respondent made no error of fact on which the decision was made.

26.  Mr Richards submits that it is noteworthy that the Investigating Committee of the Nursing & Midwifery Council has reached the conclusion, applying its procedures and standard of proof, that the Appellant has no case to answer. Ms Davies submits that the decision of the NMC is ‘plainly flawed’. For our part, we are not influenced either way by the decision taken by the NMC.

27.  We have read all of the documentation provided to us with care, and we have had the opportunity of hearing the Appellant give evidence and also of listening to and watching the DVD to which we have referred. All of this persuades us that permission in relation to a mistake of fact should be granted.

28.  So far as the alleged error of law is concerned, Mr Richards has submitted to us a coherent and arguable case that there has been an error of law because the conduct complained about (behaving in a strict and authoritarian manner to staff and patients) can never amount to ‘relevant conduct’ for the purposes of the SVGA 2006. Accordingly, we grant permission to appeal, and go on to consider the substantive matters before us.

 

 

 

Error of law

 

29.  We deal first the alleged errors of law. They fall into four distinct areas; (i) the definition of relevant conduct, (ii) procedural defects in the minded to bar letter, (iii) a reasons challenge based on the decision letter, and (iv)  questions of proportionality.

 

(i)              The definition of relevant conduct.

 

 

30.  The first challenge based on an error of law is that the strict and authoritarian behaviour complained of cannot amount to conduct which engages the SVGA 2006.

31.  We set out first of all the statutory framework which is relevant to this appeal.

32.  Schedule 3 para 9(1) SVGA 2006 states:

This paragraph applies to a person if (a) it appears to ISA that the person has (at any time) engaged in relevant conduct, and (b) ISA proposes to include him in the adults' barred list.

33.  By paragraph 9(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list. ISA must include the person in the adults' barred list if—(a) it is satisfied that the person has engaged in relevant conduct, and (b) it appears to ISA that it is appropriate to include the person in the list.

34.  By paragraph 10(1) relevant conduct is defined as (a) conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult; (b) conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to ISA that the conduct is inappropriate; (e) conduct of a sexual nature involving a vulnerable adult, if it appears to ISA that the conduct is inappropriate.

35.  By paragraph 10(2) a person's conduct endangers a vulnerable adult if he—(a) harms a vulnerable adult, (b) causes a vulnerable adult to be harmed, (c) puts a vulnerable adult at risk of harm, (d) attempts to harm a vulnerable adult, or (e) incites another to harm a vulnerable adult.

36.  “Risk of harm” is identified in Paragraph 11.This paragraph applies to a person if (a) it appears to ISA that the person falls within sub-paragraph (4), and (b) ISA proposes to include him in the adults' barred list.

37.  By Paragraph 11(2) ISA must give the person the opportunity to make representations as to why he should not be included in the adults' barred list. Paragraph 11(3) states that ISA must include the person in the adults' barred list if—(a) it is satisfied that the person falls within sub-paragraph (4), and (b) it appears to ISA that it is appropriate to include the person in the list.

38.  By Paragraph 11(4) a person falls within this sub-paragraph if he may—(a) harm a vulnerable adult,(b) cause a vulnerable adult to be harmed,(c) put a vulnerable adult at risk of harm,(d) attempt to harm a vulnerable adult, or (e) incite another to harm a vulnerable adult.

39.  In his written submissions, Mr Richards states, on behalf of the Appellant, that strict or authoritarian behaviour does not, as a matter of law, fall within the definition of any form of conduct which will or is likely to endanger a vulnerable adult, whether it is directed towards patients or staff, so as to fall within para 10(1).

40.  Ms Davies submits that the ‘relevant conduct’ in this case is not the general behaving in a strict and authoritarian manner with patients and staff, but taking that conduct one step further with patients so as to intimidate them or put them in fear.

41.  If we understand Ms Davies correctly, she does not take issue with Mr Richards’ submission that behaving in a strict and authoritarian manner with patients and staff cannot on its own amount to ‘relevant conduct’ but that if it is part of the context that caused patients to be intimidated and fearful, then it can properly be regarded as ‘relevant conduct.’

42.  It is our view that an allegation that a person is strict and authoritarian to staff and/or to patients by itself would not normally amount to ‘relevant conduct’ so as to engage the protective measures of the SVGA 2006. The issue is whether this behaviour ‘intimidates patients or puts them in fear.’ If it does do so, then it falls within the definition of ‘relevant conduct.’

 

(ii)            Procedural flaws in the minded to bar letter.

 

43.  Mr Richards submits that there is an error of law in the minded to bar letter dated 20^th September 2010 because of a procedural flaw, namely that, in this case, the ‘minded to bar letter’ does not provide any specific allegation relating to ‘strict and authoritarian manner with patients and staff’ and that, in consequence, it was difficult if not impossible for the Appellant to respond to the allegations. Thus, so it is submitted, the Appellant was denied a fair opportunity to make representations.

44.  As to this challenge, we are unable to accept this submission. The minded to bar letter expressly refers to callousness and lack of empathy, and it is abundantly apparent to us that the Appellant was aware of the allegations against him, and that he was in no way disadvantaged by the ‘minded to bar’ letter. All the documents emanating from the investigation meetings and disciplinary hearings were sent to the Appellant with the minded to bar letter. He had lawyers advising him, and the lawyers were able to provide ISA with representations on his behalf, including denials that he behaved in a strict and authoritarian manner.

 

(iii)          The decision letter. Challenge on the basis of lack of reasons.

 

45.  As to this challenge, we agree with Ms Davies that an appeal under s 4 is against the decision of ISA and not against the decision letter, and thus it is necessary to look at the decision as a whole, as set out in the Barring Decision Making Process document. This is the approach that was adopted by our colleagues in XY v ISA [2011] UKUT 289 (AAC) [at para 40], with which we agree.

46.  Thus, if the decision as a whole addresses the question as to whether the behaviour of a nurse in acting in a strict and authoritarian manner with patients and staff causes patients to be intimidated, no error of law for that reason can be advanced. Questions of proportionality will be addressed later.

47.  Mr Richards submits that XY v ISA [2011] UKUT 289 (AAC) was dealing with a different point to the one before us. In that case, the Tribunal was considering a decision letter which appeared to reverse the burden of proof. The Tribunal in that case decided that the underlying decision had not misapplied the burden and standard of proof. It is our view, however, that XY v ISA has a wider application than the facts before the Tribunal on that occasion, and that to successfully advance an argument of an error of law based on the reasoning of the ISA, it is necessary to look at the entire decision making process, and this is contained in the Barring Decision Making Process document.

48.  This document relates that:

“It is believed that [the Appellant] was strict and did manage his staff with authority. However [the Appellant] took this one step further with some patients in his care. CW said the Appellant ‘dictated what should be going on’ and ‘in the end he began to get obnoxious’ and ‘to the point where even making a nuisance of himself every night.’ When asked how he felt when [the Appellant] came on duty [DM] said there was a ‘sense of mild dread.’ ”

49.  The document states also that:

‘...the findings are that [the Appellant] used his position of authority in a negative way resulting in him intimidating and physically abusing vulnerable patients in his care”.

50.  These are findings made after the representations from the Appellant had been considered, and thus the argument cannot be advanced that there is an error of law based on the allegation that the decision letter did not in terms set out the basis upon which it was alleged that the Appellant had acted in an authoritarian and strict manner with patients and staff.

51.  The Barring Decision Making Process document sets out very clearly the reasons for the decision to place the Appellant’s name on the adults’ barred list. This challenge by the Appellant that there has been an error of law fails.

 

 

(iv)          Proportionality

 

52.  We turn to the question of proportionality. No argument on proportionality has been advanced in this appeal, although in his written submissions, Mr Richards submits that the Tribunal should not uphold the Respondent’s decision (assuming it decides that there has been no mistake on the facts on which the decision was made) unless satisfied that it was proportionate and so the issue must be considered.

53.  Ms Davies submits that the Tribunal should adopt a restrained approach to the question of proportionality, in the absence of any ground of appeal relying on proportionality and in the absence of oral argument on the point.

54.  The Chairman of the Tribunal in the current appeal was also the  Chair of the Tribunal in SB v ISA [2011] UKUT 404 (AAC). We are aware that the Respondent is seeking permission to review/appeal that decision, and that the Chair has stayed the effect of the decision in that case pending consideration of the permission to review/appeal. Ms Davies in her written submissions before us submits that the approach to proportionality in that case is not consistent with the jurisprudence of the domestic or European courts. 

55.  We have decided that it is not necessary to engage directly in this issue in this case for two reasons.

56.  First, Mr Richards emphasises that it is the minimum barring period that is the problem in this case. He says:

“Notwithstanding the conclusion of the NMC investigation, remaining on the list will have a significant impact on the Appellant’s ability to work. It is not conceded that, even if it upholds all of the Respondent’s factual findings, the Tribunal should find that such a significant imposition is, on these facts, ‘proportionate to and commensurate with the mischief which it aims to defeat.’”

57.  We are aware that the Respondent has an inherent power to reconsider its barring decision within the 10 year period. The witness statement of Ms A Hunter, which sets out the approach taken by ISA on these matters, is referred to by Wynn Williams J in RCN et al v ISA [2010] EWHC 2761. There is a Government Bill (Protection of Freedoms Bill 2011) currently going through Parliament which seeks to amend the SVGA 2006 by providing a specific provision relating to applications for review within the 10 year period. Whilst we cannot anticipate legislative change, it is indeed the case that the mischief highlighted by Wynn Williams J in RCN et al is likely to be removed.

58.  Secondly, we agree with Ms Davies’ submission in paragraph 56 of her written submissions. She says as follows:

“In circumstances where an individual is found to have mistreated vulnerable elderly patients in his care, by deliberately inflicting pain on them on more than one occasion, and by definition, to have lied about that ever since, it cannot be said that it is unreasonably onerous or oppressive to prevent that individual from working with vulnerable adults. Applying the more structured approach, it is submitted that the essential question is whether the legitimate aim of protecting vulnerable adults could be achieved by some lesser means than placing the Appellant on the list. The protection of other such vulnerable adults can only be achieved by placing the individual on the adults’ barred list. This is not a case where the individual has admitted to wrongdoing, and has demonstrated to the ISA or the Tribunal that he has learnt from his mistakes or taken steps to ensure that similar conduct will not happen in the future. There is no ‘partial’ listing. In those circumstances, it cannot possibly be said to be disproportionate for such an individual to be included in the list.”

59.  We agree entirely with the observations made by Ms Davies in this submission, and indeed it is this point which sets the factual basis of the present case apart from the factual basis in the case of SB v ISA (see paras 64 ff).

60.  We do not believe that there has been an error of law, and that ground of appeal is dismissed.

 

 

 

Mistake of fact on which the decision was made.

 

(i)              Allegations by CW

 

61.  We turn our attention to the question of whether there is a mistake of fact on which the decision has been made. In reaching findings of fact, the Respondent must be satisfied on a balance of probabilities that the Appellant has engaged in relevant conduct. In an appeal, we agree with Ms Davies, that the Appellant must make good his appeal, namely that the Respondent has made an error of a material fact. We turn to each in turn.

62.  The first is whether the Respondent made a mistake of fact in finding that the Appellant deliberately inflicted pain on CW by pinching his nipples on the night of 3^rd February 2008 and on at least one other occasion.

63.  The Respondent has identified three pieces of evidence in support of the allegation that CW had his nipples pinched by somebody on 3^rd February 2008 (and on at least one other occasion). First, CW disclosed to his daughter on 4^th February (the following day) that this had happened on 3^rd February and on some other occasion. Secondly, his complaint to Nurse H on the same day, that this had happened. In both disclosures, he mentions that the nipples were pinched because he had wet his bed.

64.  Thirdly, and most importantly, we have read the transcript of the police interview with CW on 19^th March 2008 and we viewed the DVD of this interview. We have been able to make an assessment of the evidence given to the police by CW. Clearly, CW, at the time a man of 86 years old was confused about some of the details, but we were struck by manner in which he presented the core of evidence about the nipple pinching. He was in hospital for an infection, and there is no reason to suppose that his memory was in anyway impaired and we do not believe that his evidence given in the interview was prompted in any way. His daughter was not present at the interview, and the social worker (who was present) said nothing in the interview about the incident at all. CW gave his account of what happened in a clear and unambiguous manner. It is an unusual allegation and it was described by CW in a way that persuaded us that he was telling the truth. We found his evidence compelling.

65.  The Appellant has conceded that he was on duty that evening, and that if the incident occurred (which he denies) there could be only one perpetrator. The Appellant accepted and indeed confirmed in his evidence to us, that he had worked on Bay 6 on the evening of 3^rd-4^th February, and that he had assisted CW that evening by changing his bedding and helping him with his pyjamas. He identified his signature on CW’s file at 6.00am on both 3^rd and 4^th February 2008. Putting the totality of this evidence together, we are satisfied on a balance of probability that the Appellant did pinch CW’s nipples in the way which is alleged. We have formed the view that the nipple tweaking or nipple pinching did take place on the evening of 3^rd February. We do not believe that the Respondent made a mistake of fact in deciding, on a balance of probability, that CW had his nipples pinched on that evening.

 

 

(ii)            Allegations by DM.

 

66.  The second allegation is of a similar nature, namely that the Appellant pinched DM’s nipples. In support of this allegation, we have the evidence of Dr P that DM, prior to the allegation made by CW, told a number of students and a physiotherapist that his nipples had been tweaked. They, the students and the physiotherapist, in turn informed Dr P. Dr P spoke to DM, and Dr P states that DM repeated this allegation to her.

67.  When subsequently Miss P telephoned DM’s daughter to make her aware that he had made the complaint some time ago, it would seem that DM’s daughter volunteered that her father (DM) had complained to her and to other members of the family that he had had his nipples tweaked, but that they had not taken the matter any further.

68.  We have read the written transcript of DM’s police interview dated 11^th April 2008, where DM clearly complains that he has had his nipples tweaked.

69.  It is indeed the case that much of this evidence is hearsay evidence, and accordingly we accept that it should not be given the same weight as direct evidence. However, we are entitled to consider it, together with the other evidence which we have seen relating to DM.

70.  We have considered carefully the written transcript of the interview with the Police dated 11^th April 2008. DM is very clear in his responses to the questions. He said:

“...on several occasions, I was asleep and woke up to find this rather menacing face that he has too close to mine for comfort and this was accompanied by what I suppose one has to think of as a physical assault in that he was making these gestures to me and tweaking my nipples with rather sharp fingernails so as I didn’t invent the sensation of whatever else may have happened.”

71.  We have given anxious consideration to the issue of whether there has been contamination of the evidence. Did DM overhear and adopt CW’s complaint as a result of confusion on his part? We have to say that it is our view of the evidence, that there was no contamination of the evidence, and the suggestion that there is pure speculation.

72.  The two gentlemen were in the hospital at the same time for only a brief period, between 6^th – 19^th December 2007 and for 5 days prior to CW’s allegation. CW said that he had not seen anyone else have their nipples tweaked, and DM said categorically that he had not discussed it with others.

73.  It was DM’s allegation that was made first, so the suggestion that DM adopted CW’s complaint carries no force.

74.  So far as DM is concerned, we note that DM described the nurse that he alleged pinched his nipples as having a large stomach, being overweight, and being non-white. Apparently there was only one other male nurse in the hospital ward at that time, but he was tall rather than heavily built. All the evidence we have seen points to the fact that if the incident occurred, it was committed by the Appellant.

75.  Ms Davies has drawn our attention to the fact that there is an inconsistency in the Appellant’s account as between the investigatory interview and the disciplinary hearing. In the first, he states that it was DM who complained that he was pressing his breasts; in the disciplinary hearing, he states that it was CW who made the complaints. He told us that in fact the minutes of the disciplinary hearing were typed incorrectly and he was always referring to DM. Ms Davies suggests that the most likely explanation for the inconsistency is that the account was untrue, and that the Appellant had forgotten what he had said by the time of the disciplinary investigation. Whilst we would not be prepared to go that far, we do believe that the two accounts undermine to some extent the credibility of the Appellant. We simply do not accept that the minutes of the disciplinary hearing are simply a typing error. The name CW appears five times.

76.  We have paid very close attention to the fact that the two gentlemen were elderly and that they were both confused about certain matters relating to timings and dates, and that DM in particular expressed himself in a way that suggests he had some difficulties describing someone in terms of their ethnicity. However, we have decided that the evidence of DM is entirely credible. We have arrived at the conclusion, on a balance of probabilities, that the Respondent was correct to arrive at a conclusion that the incidents of nipple tweaking or nipple pinching occurred. We see no material difference between describing the incidents as nipple pinching or nipple tweaking. We agree entirely in the way that it is put in Miss Davies’ closing written submissions:

“Looking at matters in the round, the alternatives are that both gentlemen invented precisely the same allegation, which is simply implausible; one invented this unusual allegation (itself unlikely) and the other was somehow persuaded or convinced that it had also happened to him, and both disclosed the matter quite separately and some weeks apart (highly unlikely); or the allegation is true.”

 

(iii)          Behaviour in a strict and authoritarian manner with patients and staff so as to put patients in fear of intimidation.

 

 

77.  The Tribunal had the advantage of hearing the Appellant give evidence. We have to say that this evidence did not impress us. He talked about things being done on the ward in the ‘right way’, he is disciplined, and he does things the way things should be done. He said that there was more to this case than the allegations and he described difficulties with persuading CW to take his medicine. In this context, he demonstrated how he ‘got down close’ to CW after CW had kicked him when he tried to put cream on him. He said that you have to be ‘close to talk to them.’ He told us that CW did not like him, and never opened his mouth to say anything to him, and that the other gentleman, DM, had racial issues with him.

78.  In looking at all of the evidence, we have concluded that the Respondent did not make a mistake of fact on which its decision was made, in respect of his behaviour in a strict and authoritarian manner with patients so as to intimidate patients and put them in fear. We are particularly influenced by our view of the Appellant in his evidence to us. He came over as a man who was firm in his view that his approach was the correct one. We can well see patients saying that he liked to show his authority and wanting to give the impression that he is boss, and that his attitudes were heavy handed (CW) or that he was pompous, and that that there was a mild sense of dread when he came on duty (DM).

79.  Staff refer to him as intimidating (Miss P) and very strict with staff and patients (BW). Ms Davies accepts that some staff members have positive things to say about him (in his heart, he is not bad: JM). He may well have behaved in a strict and authoritarian manner with other members of staff. However, we have reservations that there is sufficient evidence in relation to his behaviour with other members of staff to demonstrate that this behaviour amounted to placing patients in fear. These reservations however in no way persuade us that there has been a mistake of material fact on which the decision has been made.

80.  There is more than sufficient evidence in the documents that we have seen to arrive at the conclusion that the ISA have not made a mistake of fact on which the decision was made relating to the Appellant’s general attitude to patients (acting in a strict and authoritarian manner) of such a degree that it intimidated patients.

 

81.  Accordingly, the appeal in this case is dismissed.

 

 

 

 

His Honour Judge David Pearl

Ms M Halstead

Ms L Redford

26^th October 2011